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A Federal Role to Protect the Public Health
Published online by Cambridge University Press: 06 January 2021
This Article explores two ways in which airline travel is an important vector for the spread of infectious disease, and argues that airlines have market-based and liability-based reasons to require that passengers be vaccinated. Going further, the Article explores whether the federal government has the legal and constitutional authority—especially under the Commerce Clause—to encourage or mandate that airlines implement such a vaccine screen. By disrupting the spread of disease at key network nodes where individuals interact and then connect with other geographic regions, and by creating another incentive for adult vaccination, an airline vaccine screen could be an effective and legally viable tool for the protection of public health.
1 The recommended vaccines include hepatitis A & B, rotavirus, tetanus, acelluar pertussis, haemophillus influenzae, pneumococcal conjugate, polysaccharide, and 13-valent conjugate, poliovirus, influenza, measles, mumps, rubella, varicella, human papilloma virus, meningococcal disease, and zoster. Ctrs. for Disease Control & Prevention [CDC], Immunization Schedules, http://www.cdc.gov/vaccines/schedules/easy-to-read/index.html [http://perma.cc/2M3J-ALYN] (last updated Jan. 26, 2016); see also Vaccine Information Statements (VIS), CDC, http://www.cdc.gov/vaccines/hcp/vis/index.html [http://perma.cc/E2FN-4ZWE] (last updated Aug. 7, 2015) (listing multi and routine vaccinations).
2 See generally Malone, Kevin M. & Hinman, Alan R., Vaccination Mandates: The Public Health Imperative and Individual Rights, in Law in Public Health Practice, 262-84 (Goodman, Richard A. et al. eds., Oxford Univ. Press 2d ed. 2003)Google Scholar.
3 Id. at 266 (showing vaccination coverage for a range of diseases, ranging from 94% to as low as 73%).
4 See Off. Of Disease Prevention & Promotion, Immunization and Infectious Disease, HealthyPeople.gov, http://www.healthypeople.gov/2020/topics-objectives/topic/immunization-and-infectious-diseases?topicid=23 [http://perma.cc/7PEA-WGDL] (last updated Mar. 25, 2016).
5 See PhRMA, Vaccines, A report on the Prevention and Treatment of Disease Through Vaccines, Medicines in Development (2013), http://phrma.org/sites/default/files/pdf/Vaccines_2013.pdf [http://perma.cc/UX9Z-Q86Q].
6 Similarly, during the Ebola outbreak of 2014-15, Ebola vaccines were being developed and tested on a fast track. See Ebola: The Race for Drugs and Vaccines, BBC (Mar. 27, 2015), http://www.bbc.com/news/health-28663217 [http://perma.cc/Y42Y-VWBJ].
7 Jacobson v. Massachusetts, 197 U.S. 11, 11 (1905) (“The police power of a State embraces such reasonable regulations … established directly by legislative enactment as will protect the public health and safety.”).
8 See generally Malone & Hinman, supra, note 2, at 269-73.
9 See Adult Vaccination: An Important Step in Protecting Your Health, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/features/vaccineschronicconditions/ [http://perma.cc/4HBD-ZCHC] (last updated Sept. 23, 2015) (recommending adult vaccinations for seasonal flu every year, Td vaccine every ten years to protect against tetanus or Tdap vaccine once to protect against tetanus and diphtheria plus pertussis (whooping cough), and additional vaccines depending on age and lifestyle, including those for shingles, human papillomavirus, pneumococcal disease, meningococcal disease, hepatitis A and B, chickenpox (varicella), and measles, mumps, and rubella).
10 See generally Gallos, Lazaros K. et al., Improving Immunization Strategies, E 75 Physical Review 045104-1 (2007)CrossRefGoogle Scholar. For an example of network analysis being applied to vaccination policy, see Salathé, Marcel et al., A high-resolution human contact network for infectious disease transmission, 107 PNAS 22020 (2010)Google Scholar, http://www.pnas.org/content/107/51/22020.full.
11 Airlines, Gallup, http://www.gallup.com/poll/1579/airlines.aspx [http://perma.cc/Q5KQ-LFWZ] (last visited Feb. 29, 2016); see also 4 U.S. Dep’t of Transp., OmniStats: 2005 Omnibus Survey Results 2 (2005), http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/omnistats/volume_04_issue_01/pdf/entire.pdf [http://perma.cc/7VJC-QAQJ] (finding that 42% of Americans surveyed flew in the prior twelve months).
12 Airlines for America, http://airlines.org/industry/#safety [http://perma.cc/LR29-SAC3].
13 The influx of unvaccinated individuals would erode herd immunity, which requires “sufficient immunization coverage” to protect the population as a whole. See PhRMA, supra note 5, at 4.
14 Malone & Hinman, supra, note 2, at 262-63 (discussing vaccination as a “tragedy of the commons” problem); id. at 264 (“When a sufficiently large proportion of individuals in a community is immunized, those persons serve as a protective barrier against the likelihood of transmission of the disease in the community, thus indirectly protecting those who are not immunized and those who received vaccine but are not protected (vaccine failures).”).
15 See e.g., Hall, Mark A., Constitutional Mortality: Precedential Effects of Striking the Individual Mandate, 75 L. & Cont. Probs. 107Google Scholar (limiting by constitutional doctrine is a “frightening prospect” because “this very power might someday be absolutely essential to saving a million or more lives, based on solid public health science, in the event of a catastrophic public health emergency”); Parmet, Wendy E., After September 11: Rethinking Public Health Federalism, 30 J.L. Med. & Ethics 201, 201 (2002)Google Scholar (“Dogmatic and rigid visions of federalism can imperil the public health whether the threat is natural or manmade.”).
16 Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012); see also Parmet, Wendy, The Individual Mandate: Implications for Public Health Law, 39 J. L. Med. & Ethics 401, 406 (2011)Google Scholar (arguing that “infectious disease controls, including vaccine mandates, may offer the strongest case for public health mandates”).
17 See, e.g., Jaikumar, Arjun K., Note, Red Flags in Federal Quarantine: The Questionable Constitutionality of Federal Quarantine After NFIB v. Sebelius, 114 Colum. L. Rev. 677, 680 (2014)Google Scholar (arguing that NFIB “may render the federal quarantine power unconstitutional”).
18 See discussion infra Part II.B-C.
19 Huizer, Yvonne L. et al., Usefulness and Applicability of Infectious Disease Control Measures in Air Travel: A Review, 13 Travel Med. & Infectious Disease 19, 19 (2015)Google Scholar (reviewing various other tools, including hygiene measures, exit and entry screening, and providing information to travelers).
20 See CDC, Federal Register Notice: Criteria for Requesting Federal Travel Restrictions for Public Health Purposes, Including for Viral Hemorrhagic Fevers, 80 Fed. Reg. 16400 (Mar. 27, 2015); see also CDC, Federal Air Travel Restrictions for Public Health Purposes — United States, June 200 — May 2008, 57 MMWR Weekly 1009 (Sept. 19, 2008), http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5737a1.htm [http://perma.cc/GKV9-7Z5R] (describing a one-year period in which the “CDC received requests to place 42 persons on the DNB [Do Not Board] list,” leading to 33 being actually added, all of whom were thought to have infectious pulmonary TB).
21 See Priest, Patricia C. et al., Thermal Image Scanning for Influenza Border Screening: Results of an Airport Screening Study, 6 PLoS ONE e14490, e14490 (2011)CrossRefGoogle Scholar (“Our findings therefore suggest that ITIS [infrared thermal image scanners] is unlikely to be effective for entry screening of travellers [sic] to detect influenza infection with the intention of preventing entry of the virus into a country.”); Jessica Glenza, Ebola: Are Thermal Scanners Effective Prevention Tools or Just a Placebo?, Guardian (Oct. 2, 2014), http://www.theguardian.com/world/2014/oct/01/ebola-prevention-thermal-scanner-effective-placebo [http://perma.cc/2MKV-DRXN].
22 Natasha Hinde, Horrific Hygiene On Flights Revealed: Poo On Tray Tables, Urine On Seats and 80 Million Bacteria Living On Your Suitcase, Huffington Post UK (May 18, 2015), http://www.huffingtonpost.co.uk/2015/05/18/hygiene-on-flights-revealed-poo-tray-tables-bacteria-suitcases_n_7304226.html [http://perma.cc/88ZN-ET4C].
23 Douglas Wright, 6 Places Germs Breed in a Plane, Budget Travel (Dec. 22, 2010, 8:00 AM), http://www.cnn.com/2010/TRAVEL/12/22/bt.germs.breed.on.plane/ [http://perma.cc/7TZD-TBMF].
24 See Hinde, supra note 22 (referencing, but not citing, Hocking, Martin & Foster, Harold, Common Cold Transmission in Commercial Aircraft: Industry and Passenger Implications, 3 J. Env’t Health Res. 7 (2004)Google Scholar).
25 Scholars have only in recent years turned their attention away from indoor chemical exposure and towards indoor air quality in terms of the “microbiomes of built environments.” See Corsi, Richard L. et al., Microbiomes of Built Environments: 2011 Symposium Highlights and Workgroup Recommendations, 22 Indoor Air 171, 172 (2012)Google Scholar.
26 Mangili, Alexandra & Gendreau, Mark A., Transmission of Infectious Diseases During Commercial Air Travel, 365 Lancet 989, 990 (2005)Google Scholar.
27 Id. It is worth noting that not all the literature uses “airborne” in such a limiting manner, often using it to include droplet contact. E.g., Morawska, L., Droplet Fate in Indoor Environments, or Can We Prevent the Spread of Infection?, 16 Indoor Air 335, 335Google Scholar (describing relation between droplet particle size and airborne travel). This terminology was likely used because it allowed for a clearer distinction between air-based transmission and transmission relatively independent of air quality.
28 See Eur. Ctr. for Disease & Control, Technical Report: Risk Assessment Guidelines for Infectious Diseases Transmitted on Aircraft 11 (2009) (selecting diseases prone to airplane transmission for study); see generally CDC, http://www.cdc.gov/ [http://perma.cc/T4AF-Z7SL] (providing information regarding disease transmission, minimization and prevention).
29 E.g., Eberhart-Phillips, J. et al., An Outbreak of Cholera From Food Served on an International Aircraft, 116 Epidemiology & Infection 9 (1996)Google Scholar.
30 But see Zitter, Jessica Nutik et al., Aircraft Cabin Air Recirculation and Symptoms of the Common Cold, 288 JAMA 483, 486 (2002)Google Scholar (finding no greater risk between flights using 100% recycled air versus 50% recycled air).
31 Leder, K. & Newman, D., Respiratory Infections During Air Travel, 35 Internal Med. J. 50, 51 (2005)Google Scholar.
32 See generally id.; Mangili & Gendreau, supra note 26.
33 Mangili & Gendreau supra note 26, at 991.
34 See Martin B. Hocking & Harold D. Foster, Common Cold Transmission in Commercial Aircraft: Industry and Passenger Implications, 3 J. Envtl. Health Res. (discussing this problem), http://www.cieh.org/jehr/jehr3.aspx?id=11412 [http://perma.cc/C6DG-393N].
35 See Mangili & Gendreau, supra note 26, at 992 (discussing “the real potential for rapid spread made possible by the volume and speed of air travel”).
36 Id. at 991.
37 Id. at 992.
38 Beard, Frank H. et al., Contact Tracing of In-Flight Measles Exposures: Lessons From an Outbreak Investigation and Case Series, Australia, 2010, 2 W. Pac. Surveillance & Response J. 1, 6 (2011)Google Scholar.
39 Mangili & Gendreau, supra note 26, at 993.
40 Id.; Amornkul, Pauli N. et al., Low Risk of Measles Transmission After Exposure on an International Airline Flight, 189 J. Infectious Diseases S81, S83 (2004)Google Scholar.
41 Leder & Newman, supra note 31, at 53.
42 Id.
43 Id.
44 Olsen, Sonja J. et al., Transmission of the Severe Acute Respiratory Syndrome on Aircraft, 349 New Eng. J. Med. 2416, 2416 (2003)Google Scholar.
45 Widdowson, Marc-Alain et al., Probable Transmission of Norovirus on an Airplane, 293 JAMA 1859, 1859-60 (2005)Google Scholar.
46 Id.
47 Id. at 1860.
48 Mangili & Gendreau, supra note 26, at 992.
49 Id.
50 Id.
51 Id. at 993.
52 See Amornkul et al., supra note 40, at S81.
53 Pavia, Andrew T., Germs on a Plane: Aircraft, International Travel, and the Global Spread of Disease, 195 J. Infectious Diseases 621, 621 (2007)Google Scholar.
54 Brownstein, John S. et al., Empirical Evidence for the Effect of Airline Travel on Inter-Regional Influenza Spread in the United States, 3 PLoS Med. 1826, 1826 (2006)Google Scholar.
55 Id. (“We found that domestic airline travel volume … predicts the rate of influenza spread.”).
56 CDC, Epidemiologic Notes and Reports Interstate Importation of Measles Following Transmission in an Airport--California, Washington, 1982, 32 MMWR Weekly 215 (Apr. 29, 1983), http://www.fasthealth.com/goto.php?url=www.cdc.gov/mmwr/preview/mmwrhtml/00000070.htm [http://perma.cc/GC3V-785T].
57 Id.
58 Measles Cases and Outbreaks, CDC, http://www.cdc.gov/measles/cases-outbreaks.html [http://perma.cc/5FL4-F4CG] (last updated Mar. 8, 2016) (“In 2015, 189 people from 24 states and the District of Columbia were reported to have measles.”).
59 Olsen et al., supra note 44, at 2416.
60 Remembering SARS: A Deadly Puzzle and the Efforts to Solve It, CDC, http://www.cdc.gov/about/history/sars/feature.htm [http://perma.cc/3XN6-P3YA] (last updated Apr. 26, 2013).
61 Khan, Kamran et al., Spread of Novel Influenza A (H1N1) Virus Via Global Airline Transportation, 361 New Eng. J. Med. 212, 213 (2009)Google Scholar (“We then compared the international destinations of travelers departing from Mexico with confirmed H1N1 importations associated with travel to Mexico, and we found a remarkably strong degree of correlation.”).
62 See id. (“[C]orrelation between the international movements of travelers and H1N1 … suggest that quantitative analysis of worldwide air-traffic patterns can help cities and countries around the world better anticipate their risks of importing global infectious diseases.”).
63 Hwang, Grace M. et al., A Model-Based Tool to Predict the Propagation of Infectious Disease Via Airports, 10 Travel Med. & Infectious Disease 32 (2012)Google Scholar.
64 Chung, Wendy M. et al., Active Tracing and Monitoring of Contacts Associated With the First Cluster of Ebola in the United States, 163 Annals Internal Med. 164, 164 (2015)Google Scholar; see generally Poletto, C. et al., Assessing the Impact of Travel Restrictions on International Spread of the 2014 West African Ebola Epidemic, 19 Eurosurveillance 1, 8 (2014)Google Scholar (providing mathematical modelling).
65 McCarty, Carolyn L. et al., CDC, Response to Importation of a Case of Ebola Virus Disease--Ohio, October 2014, 63 MMWR, at 1089–1090 (2014)Google ScholarPubMed.
66 Regan, Joanna J. et al., CDC, Public Health Response to Commercial Airline Travel of a Person with Ebola Virus Infection - United States, 2014, 64 MMWR 65 (2015)Google Scholar.
67 See generally Gallup, supra note 11 (providing data on Americans’ feelings about flying).
68 U.S. Dep’t of Transp., Airline Passenger Travel, 3 OmniStats 1 (2003), http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/omnistats/volume_03_issue_03/pdf/entire.pdf [http://perma.cc/8V4U-EMNW].
69 See Smith, Philip J. et al., Parental Delay or Refusal of Vaccine Doses, Childhood Vaccination Coverage at 24 Months of Age, and the Health Belief Model, 126 Pub. Health Reps. 135, 140-41 (2011)Google Scholar.
70 U.S. Dep’t of Transp., supra note 68, at 1 (finding that those who have never traveled in a commercial airline are more likely to “have no more than a high school education” and “have a yearly household income of less than $30,000”).
71 U.S. Travel Ass’n, U.S. Travel Answer Sheet (2015), http://www.ustravel.org/sites/default/files/Media%20Root/Document/US_Travel_AnswerSheet_Jan2016.pdf [http://perma.cc/VMH4-ZZP9].
72 D'Vera Cohn & Rich Morin, Pew Res. Ctr., American Mobility: Who Moves? Who Stays Put? Where’s Home? 1 (2008), http://www.pewsocialtrends.org/files/2010/10/Movers-and-Stayers.pdf [http://perma.cc/E7C7-TKJG] (last updated Dec. 29, 2008).
73 Outdoor Foundation, Outdoor Participation Report 58 (2013), http://www.outdoorfoundation.org/pdf/ResearchParticipation2013.pdf [http://perma.cc/U9HY-A95F]. Note that these estimates may somewhat over-inflate the totals, because they may double count individuals that enjoy more than one sport. See id.
74 See id. at 20 (providing data on the percentage of Americans who travel to take part in sports or recreation).
75 Bus. Travel Ass’n, U.S. Business Travel Volume Projected to Rise Over Next Two Years (Apr. 14, 2015), http://www.gbta.org/PressReleases/Pages/RLS_041515_USA.aspx [http://perma.cc/FD7T-UN7R].
76 Paulin, Geoffrey, Travel Expenditures: 2005-2011: Spending Slows During Recent Recession, 1 U.S. Bureau of Labor Stats. 1, 2 (2012)Google Scholar, http://www.bls.gov/opub/btn/volume-1/pdf/travel-expenditures-2005-2011-spending-slows-during-recent-recession.pdf [http://perma.cc/9RQN-83YA].
77 See generally E. Roy Weintraub, Neoclassical Economics, Library of Econ. & Liberty (2002), http://www.econlib.org/library/Enc1/NeoclassicalEconomics.html [http://perma.cc/HM6R-7NH4] (explaining that neoclassical economics can be summarized in part, as “[b]uyers attempt to maximize their gains from getting goods, and they do this by increasing their purchases of a good until what they gain from an extra unit is just balanced by what they had to give up to obtain it”).
78 See Dep’t of Health & Human Servs., The Affordable Care Act and Immunization (Sept. 14, 2010), http://www.hhs.gov/healthcare/facts-and-features/fact-sheets/aca-and-immunization/index.html [http://perma.cc/QGQ4-PVEL].
79 Pitts, Samantha I. et al., A Systematic Review of Mandatory Influenza Vaccination in Healthcare Personnel, 47 Am. J. Preventative Med. 330, 336 (2014)Google Scholar, http://vaccinesafetyresource.elsevier.com/sites/default/files/Flu-Pitts-Systematic.pdf [http://perma.cc/89RF-SGLQ].
80 Id.
81 Id. at 332.
82 See Thomas, Roger E. et al., Influenza Vaccination for Healthcare Workers Who Care for People Aged 60 or Older Living in Long-Term Care Institutions, Cochrane Library 1, 2 (2013)Google Scholar (“Vaccinating healthcare workers who care for those aged 60 or over in LTCIs showed no effect on laboratory-proven influenza or complications (lower respiratory tract infection, hospitalisation or death due to lower respiratory tract illness) in those aged 60 or over resident in LTCIs.”); Eli Perencevich, Mandatory Influenza Vaccination of Healthcare Workers: The End or Just the Beginning?, Controversies in Hospital Infection Prevention (Dec. 18, 2015, 8:32 AM), http://haicontroversies.blogspot.com/2015/12/mandatory-influenza-vaccination-of.html [http://perma.cc/8NPK-FZE9] (calling for additional sick leave and other policies to accompany a vaccine mandate).
83 Leib, Susan et al., Pediatricians’ Experience with and Response to Parental Vaccine Safety Concerns and Vaccine Refusals: A Survey of Connecticut Pediatricians, 126 Pub. Health Rep. 13, 17 (2011)Google Scholar; see also Wang, Shirley S., More Doctors ‘Fire’ Vaccine Refusers, Wall Street J., Feb. 15, 2012Google Scholar, at A3 (discussing another study of Midwestern doctors, 21% of whom had discharged patients for vaccine refusal).
84 Brittny Mejia, Doctors Turn Away Unvaccinated Kids, L.A. Times, Feb 10, 2015, at A1-A6, http://www.latimes.com/science/la-me-vaccination-policy-20150210-story.html [http://perma.cc/JF6S-8328].
85 Jeffrey Dastin, U.S. Airline Stocks Fall on Renewed Fears of Ebola Effect on Travel, Reuters (Oct. 15, 2014, 1:56 PM), http://www.reuters.com/article/2014/10/15/us-usa-airlines-stocks-idUSKCN0I429U20141015 [http://perma.cc/5YNW-YXBY].
86 Teresa Cederholm, Why the Ebola Scare Led to a 16% Drop in the Airline Index, Market Realist (Oct. 20, 2014, 4:05 PM), http://marketrealist.com/2014/10/why-ebola-scare-led-to-a-16-drop-in-airline-index/ [http://perma.cc/W4QF-TW4J].
87 Teresa Cederholm, Must-Know: SARS’ Impact on the Airline Industry, Market Realist (Oct. 20, 2014, 3:52 PM), http://marketrealist.com/2014/10/must-know-sars-impact-airline-industry/ [http://perma.cc/D7E5-ADJD].
88 Zia Sadique, M. et al., Precautionary Behavior in Response to Perceived Threat of Pandemic Influenza, 13 Emerging Infectious Disease 1307, 1311 (2007)Google Scholar, http://wwwnc.cdc.gov/eid/article/13/9/pdfs/07-0372.pdf [http://perma.cc/D54T-F4JR].
89 See supra notes 17-24 and accompanying text.
90 See Jessica Dickler, Post 9/11 Travel: What Airport Security Costs Us, CNN Money (Sept. 8, 2011, 5:56 AM), http://money.cnn.com/2011/09/08/pf/911_travel/ [http://perma.cc/B3T2-MYYZ]; U.S. H. of Reps., Comm. on the Budget, The Transportation Security Administration and the Aviation- Security Fee (Dec. 10, 2013), http://budget.house.gov/news/documentsingle.aspx?DocumentID=364049 [http://perma.cc/6FWP-VDUP].
91 See Medical Services – O’Hare International Airport, Chi. Dep’t of Aviation (2015), http://www.flychicago.com/OHare/EN/AtAirport/Facilities/TravelerServices/Medical-Services.aspx [http://perma.cc/FXQ4-JLF9] (advertising kiosks for giving flu shots in three terminals).
92 See Key Facts About Seasonal Flu Vaccine, CDC, http://www.cdc.gov/flu/protect/keyfacts.htm [http://perma.cc/8CYH-CM3W] (last updated Oct. 2, 2015) (explaining that it takes about two weeks for the body to develop antibodies in response to the vaccine).
93 Nat’l Travel & Tourism Off., U.S. Dep’t of Commerce, International Visitation to the United States: A Statistical Summary of U.S. Visitation (2013), http://travel.trade.gov/outreachpages/download_data_table/2013_Visitation_Report.pdf [https://perma.cc/2E89-LUX6] (finding seventy million international visitors to the United States in 2013).
94 See New Vaccination Criteria for U.S. Immigration: Frequently Asked Questions (FAQ), CDC, http://www.cdc.gov/immigrantrefugeehealth/laws-regs/vaccination-immigration/revised-vaccination-immigration-faq.html [http://perma.cc/46RV-TXMW] (“The new vaccination criteria apply to all applicants who seek legal permanent residence in the United States.”); Non Immigrant Visas FAQs, Consulate General of the U.S., Amsterdam • the Netherlands, http://amsterdam.usconsulate.gov/other_niv_issues.html [http://perma.cc/4M3E-L5JY] (stating that “Vaccinations are no longer required for temporary travel to the United States.”); Vaccinations, U.S. Dep’t of State, http://travel.state.gov/content/visas/en/immigrate/vaccinations.html [http://perma.cc/34DR-GKND] (“United States immigration law requires immigrant visa applicants to obtain certain vaccinations … prior to the issuance of an immigrant visa.”).
95 See International Certificate of Vaccination or Prophylaxis, World Health Org. (2005), http://www.who.int/ihr/ports_airports/icvp/en [http://perma.cc/NJ5J-UKAG] (facilitating implementation of the 2005 International Health Regulations by States Parties).
96 Lemons, Jane Fullerton, Vaccine Controversies: Should Parents be Required to Immunize Their Children?, 26 CQ Res. 169, 169 (2016)Google Scholar (stating that “[m]ore than 90 percent of Americans immunize their children”).
97 See generally Brad Plumer, How the Big U.S.Airlines Try to Avoid Competing with Each Other, Wash. Post: WonkBlog (Aug. 14, 2013), http://www.washingtonpost.com/news/wonk/wp/2013/08/14/heres-how-the-big-u-s-airlines-try-to-avoid-competing-with-each-other [http://perma.cc/MQ5U-NAMF] (explaining how the major US airline carriers have consolidated since 2005).
98 Smith, Martin Jr., Torts - Duty of a Common Carrier to Passenger with Infirmity, 20 La. L. Rev. 793, 794 (1960)Google Scholar; see, e.g., Gaines v. Chicago Transit Auth., 804 N.E.2d 653, 656 (Ill.App. 1 Dist. 2004) (“It has long been the law of Illinois that a common carrier owes its passengers the highest degree of care consistent with the practical operation of its vehicles, but it cannot be an absolute insurer of the safety of its passengers.”).
99 Green v. Taca Int'l Airlines, 304 So. 2d 357, 359-60 (La. 1974).
100 See generally Restatement (Third) of Torts § 40 (Am. Law Inst. 2012) (“An actor in a special relationship with another owes a duty of reasonable care with regard to risks that arise within the scope of the relationship.”); see also Restatement (Second) of Torts § 314A (Am. Law Inst. 1993) (noting when “special relations giv[e] rise to a duty to aid or protect”).
101 See Rehm v. United States, 196 F. Supp. 428, 430-31 (E.D.N.Y. 1961) and Schneider v. United States, 188 F. Supp. 911, 915-16 (E.D.N.Y.1960), where both court award damages to car occupants that were hit by a plane which crashed due to engine failure.
102 Stanford v. Kuwait Airways Corp., 89 F.3d 117, 127 (2d Cir. 1996) (finding airline “took on responsibilities in the clouded atmosphere of threatened terrorist attacks, with knowledge of terrorist hijacking tactics” and “[w]ith this awareness and knowledge it had a commensurate duty to protect those within a foreseeable scope of danger”).
103 See, e.g., Delta Domestic General Rules Tariff 13 (2016), http://www.delta.com/content/dam/delta-www/pdfs/legal/contract_of_carriage_dom.pdf [http://perma.cc/TQC7-AEFX] (detailing in Rule 35(F) that “Delta may refuse to transport or may remove passengers from its aircraft … [w]hen the passenger has a contagious disease that may be transmissible to other passengers during the normal course of the flight”).
104 49 U.S.C. § 44701(a)(5) (2012) (emphasis added).
105 49 U.S.C. § 44701(d)(1)(A) (2012).
106 14 C.F.R. § 91.13 (2015).
107 49 U.S.C. § 44902(b) (2012).
108 See 49 C.F.R. § 1560.1 (2015) (enabling the “TSA to operate a watch list matching program known as Secure Flight, which involves the comparison of passenger and non-traveler information with the identifying information of individuals on Federal government watch lists”).
109 Adamsons v. Am. Airlines, Inc., 444 N.E.2d 21, 24 (N.Y. 1982) (finding that the airline permissibly refused passage to individual in extreme pain due to undiagnosed, mysterious illness).
110 In the case of a passenger complaining of discrimination based on 14 C.F.R. § 382.21(a), no private right of action exists to the refused passenger. Violations of the Act generally will result in an investigation by the Department of Transportation and possibly the imposition of fines against the airline. See, e.g., Boswell v. Skywest Airlines, Inc., 361 F.3d 1263, 1265 (10th Cir. 2004) (concluding that the “ACAA [Air Carriers Access Act] establishes certain administrative remedies but not a private right of action”). The Eleventh Circuit held that the Air Carriers Access Act (ACAA), 49 U.S.C. § 41705, does not create a private right of action for disability discrimination by the airlines. Love v. Delta Air Lines, 310 F.3d 1347, 1349 (11th Cir. 2002) (discerning “no congressional intent to create [] a private right of action” under the ACAA).
111 See generally Abdullah v. American Airlines, Inc., 181 F.3d 363, 365 (3d Cir. 1999) (“[D]espite federal preemption of the standards of care, state and territorial damage remedies still exist for violations of those standards.”); Nettels, John C. Jr. & Irby, Jerrick L., Standard of Care Preemption in Aviation Litigation: Halting Steps to a Coherent Analysis, 76 J. Air L. & Com. 327, 337 (2011)Google Scholar (arguing that “courts are likely to apply a presumption against finding express preemption under any of the relevant federal aviation statutes”).
112 49 U.S.C. § 40120(c) (2012). Some courts have interpreted the savings clause to indicate a general congressional intent not to preempt state-law tort suits against airlines. See, e.g., Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 1004 (9th Cir. 2013) (noting that the court had “in several instances held that state-law personal-injury claims are not displaced by the FAA”); Martin ex rel. Heckman v. Midwest Exp. Holdings, Inc., 555 F.3d 806, 808 (9th Cir. 2009) (finding that for field preemption to exist, the court “must infer that Congress intended to exclude all state law personal injury suits from the area of air traffic travel, even though it didn’t say so,” and that the “FAA betrays no such intention.”); Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 194 (3d Cir. 1998) (“[T]he continued existence of statutorily mandated liability insurance coverage is strong evidence that Congress did not intend to preempt state tort claims.”). This tort analysis is distinct from two other express preemption provisions: 49 U.S.C. § 41713 (preempting claims “related to a price, route or service”), and 49 U.S.C. § 40101 (providing a statute of repose for product liability claims against airplane manufacturers).
113 Compare Abdullah, 181 F.3d at 364 (finding that state law claims exist for violation of federal standards in a claim brought by passengers injured during flight as a result of turbulence) with French v. Pan Am Express, Inc., 869 F.2d 1, 1 (1st Cir. 1989) (finding that federal aviation employment policies preempted state statute regulating drug testing for employees).
114 See, e.g., Summers v. Delta Airlines, Inc., 805 F. Supp. 2d 874, 880 (N.D. Cal. 2011) (finding preemption of negligence claim for failing to provide assistance while disembarking, but not for claim for failure to warn of a dangerous condition, because no specific area in FAA covered this type of claim); Peterson v. Continental Airlines, Inc., 970 F. Supp. 246, 250-51 (S.D. N.Y. 1997) (refusing to extend preemption to a claim that fell within the airline’s standard of conduct as a “service” under 49 U.S.C. § 41713 because there was a dispute about the reasonableness of the service provided).
115 See 28 C.F.R. § 104 (2002); see also 28 C.F.R. § 104 (2011) (incorporating the James Zadroga 9/11 Health and Compensation Act of 2010 (Zadroga Act), Title II of which reactivates the September 11th Victim Compensation Fund of 2001).
116 In re September 11 Litigation, 280 F. Supp. 2d 279, 288 (S.D.N.Y. 2003).
117 Id. at 288-89.
118 Id. at 296.
119 Id. at 297 (quoting United States v. Locke, 529 U.S. 89, 108 (2000)).
120 Id.
121 Id. at 298.
122 Id.
123 49 U.S.C.A. § 40101(c)(2) (2012).
124 Air Carrier Access Act, 14 C.F.R. § 382.21(a) (2015).
125 14 C.F.R. § 382.21(b) (2015).
126 Id.
127 14 C.F.R. § 382.21(b) (2015).
128 Adamsons v. Am. Airlines, Inc., 444 N.E.2d 21, 25 (N.Y. 1982).
129 Id. at 23.
130 Id.
131 Id.
132 Id. at 24.
133 14 C.F.R. §§ 382.21(a)(4), 382.23(b)(2), 382.51(b)(4), 382.23(c).
134 14 C.F.R. § 382.23(d).
135 Nondiscrimination on the Basis of Disability in Air Travel, 73 Fed. Reg. 27614-01 (May 13, 2008) (to be codified at 14 C.F.R. pt. 382).
136 For a discussion of similar issues in the employment context, see Najera, Rene F. & Reiss, Dorit Rubinstein, First Do No Harm: Protecting Patients Through Immunizing Health Care Workers, 26 Health Matrix: J. L. Med. (Feb. 8, 2015)CrossRefGoogle Scholar, UC Hastings Research Paper No. 136.
137 See, e.g., Bragdon v. Abbott, 524 U.S. 624, 655 (1998) (finding that HIV-positive status is a disability).
138 Similarly, see Pandemic Preparedness In The Workplace And The Americans With Disabilities Act, U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov/facts/pandemic_flu.html [https://perma.cc/YG68-YZ6R] (last updated Oct. 9, 2009) (“May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic? No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense).”).
139 Specifically, 49 U.S.C. § 40127 (2012) provides that an “air carrier or foreign air carrier may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex, or ancestry.” 49 U.S.C. § 41310 (2012) prohibits air carriers and foreign air carriers from unreasonably discriminating against any person in foreign air transportation, and 49 U.S.C. § 41702 (2012) requires that U.S. carriers provide safe and adequate transportation. Finally, 49 U.S.C. § 41712 (2012) prohibits unfair and deceptive practices by air carriers.
140 See, e.g., Letter from Peggy R. Mastroianni, EEOC Legal Counsel, to the public (Mar. 5, 2012), http://www.eeoc.gov/eeoc/foia/letters/2012/religious_accommodation.html [http://perma.cc/E6JK-7JJJ] (“The Commission and courts have consistently found that Title VII defines religion very broadly to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”).
141 See Zucht v. King, 260 U.S. 174, 176-77 (1922) (rejecting an equal protection challenge to a school vaccination mandate: “A long line of decisions by this court … also settled that in the exercise of the police power reasonable classification may be freely applied, and that regulation is not violative of the equal protection clause merely because it is not all-embracing.”). For a more recent application of this doctrine, see Workman v. Mingo Cty. Bd. of Educ., 419 F. App'x 348, 355 (4th Cir. 2011) (rejecting the claim that state vaccination mandate infringed on religious liberty).
142 Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944). Similarly, see Jacobson v. Massachusetts, 197 U.S. 11, 35 (1905) (finding that a state has police power to mandate vaccination, which overrides an individual’s liberty interest). There is rich literature on the continuing vitality of Jacobsen. See Gostin, Lawrence O., Jacobson v. Massachusetts at 100 Years: Police Power and Civil Liberties in Tension, 95 Am. J. Pub. Health 576 (2005)Google Scholar; Horowitz, Ben, A Shot in the Arm: What a Modern Approach to Jacobson v. Massachusetts Means for Mandatory Vaccinations During a Public Health Emergency, 60 Am. U. L. Rev. 1715 (2011)Google Scholar; King, Jaime Staples & Moulton, Benjamin W., Rethinking Informed Consent: The Case for Shared Medical Decision-Making, 32 Am. J. L. & Med. 429, 429 (2006)Google Scholar; Mariner, Wendy K. et al., Jacobson v. Massachusetts: It’s Not Your Great-Great Grandfather’s Public Health Law, 95 Am. J. Pub. Health 581 (2005)Google Scholar; Shapiro, Michael H., Updating Constitutional Doctrine: An Extended Response to the Critique of Compulsory Vaccination, 12 Yale J. Health Pol’y, L. & Ethics 87, 91–122 (2012)Google Scholar (discussing the constitutional issues of mandatory vaccination).
143 Mastroianni, supra note 140.
144 Allen v. American Airlines, Inc. 301 F. Supp. 2d 370, 374 (2003); see also Stagl v. Delta Airlines, Inc., 52 F.3d 463, 467 (2d Cir. 1995).
145 See Schwamb v. Delta Air Lines, Inc., 516 So.2d 452, 462 (1st Cir. 1987) (finding that the airline “knew or should have known” that “this bin has a particular tendency to become overstuffed” and susceptible to falling on a passenger’s head).
146 United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
147 Earle v. Kuklo, 98 A.2d 107, 109 (N.J. Super. Ct. App. Div. 1953) (collecting cases from New Hampshire, Wisconsin, Missouri, New York, Kansas, and Texas), quoted in Andrews v. MV Transp., No. CV 1:11-CV-01089-ESH, 2015 WL 5158807, at *2 (D.D.C. Sept. 1, 2015).
148 See T.J. Hooper v. Northern Barge Corp., 60 F.2d 737, 740 (2d Cir. 1932).
149 See, e.g., supra notes 19-20; Abeyratne, Ruwantissa, International Responsibility in Preventing the Spread of Communicable Diseases through Air Carriage–The SARS Crisis, 30 Transp. L.J. 53, 60–61 (2002)Google Scholar (discussing other theories of breach including (1) permitting an obviously sick passenger to board without making any inquiry, requiring a medical certificate, or denying boarding to determine their medical fitness; (2) failing to quarantine or isolate a passenger who is discovered in flight with a communicable disease, or otherwise fails to respond appropriately; (3) knowingly allowing an infected passenger or crew member to travel or work; (4) failing to properly equip and maintain the aircraft to prevent the spread of airborne disease; (5) failing to notify the appropriate medical authorities and await assistance at the flight’s destination; or (6) failing to alert the proper medical authorities and make efforts to contact all passengers on the flight after becoming aware of a passenger’s communicable illness)
150 See Adamsons v. American Airlines, Inc., 444 N.E.2d 21, 25 (N.Y. 1982); see also supra notes 128-32 and accompanying text.
151 Pettit v. Celebrity Cruises, Inc., 153 F. Supp. 2d 240, 248, 262 (S.D.N.Y. 2001).
152 Id. at 254.
153 Rinker v. Carnival Corp., 753 F. Supp. 2d 1237, 1242 (S.D. Fla. 2010)
154 Id.
155 See Christopher Elliott, Norovirus Outbreaks Make Both Cruise Lines and Passengers Leery, Wash. Post (Feb. 13, 2014), http://www.washingtonpost.com/lifestyle/travel/norovirus-outbreaks-make-both-cruise-lines-and-passengers-leery/2014/02/13/cabf3000-9340-11e3-b46a-5a3d0d2130da_story.html [http://perma.cc/ZUM4-5CVL] (describing cruise companies’ offers of compensation to travelers).
156 See sources cited supra Part 0 (discussing scholarly articles providing such analyses).
157 See, e.g., Chung, supra note 64 (presenting a retrospective analysis of the 2014 Ebola outbreak); WHO, SARS Outbreak in the Philippines, 22 Wkly. Epidemiological Rec. 189 (2003) (presenting a retrospective analysis of the 2003 SARS outbreak in the Philippines).
158 49 U.S.C. § 44701(a)(5) (2012).
159 49 U.S.C. § 44902(b) (2012).
160 14 C.F.R. § 382.21 (2015).
161 Robertson, Christopher T., New DTCA Guidance — Enough to Empower Consumers?, 373 New Eng. J. Med. 1085, 1085-87 (2015)Google Scholar (discussing FDA guidance on advertising to consumers, which was important to industry, even though it remained in draft form for years).
162 Ass'n of Flight Attendants-CWA v. Huerta, 785 F.3d 710, 716-17 (D.C. Cir. 2015).
163 Id. at 713.
164 See id. at 717-18 (citing 5 U.S.C. §§ 553, 704; 49 U.S.C. § 46110(a); 14 C.F.R. § 121.589).
165 See Ass'n of Flight Attendants-CWA, 785 F.3d at 719 (holding that FAA’s notice regarding use of portable electronic devices was nonbinding guidance that did not conflict with existing regulation and as such it is not subject to the APA’s notice and comment requirement).
166 14 C.F.R. § 382.21(b) (2015).
167 See George v. Kankakee Cmty. Coll., No. 14-CV-2160, 2014 WL 6434152, at *5 (C.D. Ill. Nov. 17, 2014).
168 49 U.S.C.A. § 106(B)(1) (West 2007).
169 49 U.S.C. § 40101(c)(2)) (2012).
170 49 U.S.C. § 114(f)(13) & (h)(2) (2012).
171 42 U.S.C. § 264 (2012).
172 14 U.S.C. § 264 (2012).
173 Legal Authorities for Isolation and Quarantine, CDC, http://www.cdc.gov/quarantine/aboutlawsregulationsquarantineisolation.html [http://perma.cc/GW6J-QTBW] (last updated Oct. 8, 2014).
174 See 42 U.S.C. § 264 (2012); see also 42 C.F.R. § 70.2 (2015) (“Whenever the Director of the Centers for Disease Control and Prevention determines that the measures taken by health authorities of any State or possession … are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession, he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary …”).
175 Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2566 (2012).
176 Id. at 2578.
177 Id. at 2578 (quoting United States v. Morrison, 529 U.S. 598, 618-19 (2000)).
178 Id. at 2584.
179 Id. at 2588.
180 Id. at 2592.
181 United States v. Morrison, 529 U.S. 598, 613 n.5 (2000) (defining “channels” as “the use of the interstate transportation routes through which persons and goods move”). As to instrumentalities, see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 242 (1964) (finding that motels are instrumentalities covered by the Commerce Clause) and United States v. Ballinger, 395 F.3d 1218, 1226 (11th Cir. 2005) (explaining that “instrumentalities of interstate commerce … are the people and things themselves moving in commerce, including automobiles, airplanes, boats, and shipments of goods”).
182 United States v. Lopez, 514 U.S. 549, 558 (1995) (“Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.”).
183 See supra Part II.
184 Id.
185 Champion v. Ames, 188 U.S. 321, 328 (1903) (discussing Reid v. Colorado, 187 U.S. 137 (1902): “That regulation may sometimes appropriately assume the form of prohibition is also illustrated by the case of diseased cattle, transported from one state to another…. [I]it cannot be doubted that Congress, under its power to regulate commerce, may either provide for their being inspected before transportation begins, or, in its discretion, may prohibit their being transported from one state to another.”)
186 42 USCA 264. See also State of La. v. Mathews, 427 F. Supp. 174, 176 (E.D. La. 1977) (“Congress has granted broad, flexible powers to federal health authorities who must use their judgment in attempting to protect the public against the spread of communicable disease.”). But see Jaikumar supra note 17 (explaining that NFIB v. Sebelius may undermine these powers, if read broadly).
187 Morgan's S.S. Co. v. La. Bd. of Health, 118 U.S. 455, 464 (1886) (“But it may be conceded that whenever congress shall undertake to provide for the commercial cities of the United States a general system of quarantine, or shall confide the execution of the details of such a system to a national board of health, or to local boards, as may be found expedient, all state laws on the subject will be abrogated, at least so far as the two are inconsistent.”); see also Simpson v. Shepard, 230 U.S. 352, 407 (1913) (“[Q]uarantine laws producing such effect on legitimate interstate commerce are not in conflict with the Constitution.”); Compagnie Francaise de Navigation a Vapeur v. State Bd. of Health, La., 186 U.S. 380, 391 (1902) (holding that the state power to enact quarantines “exists until Congress has acted”).
188 See Exec. Order No. 13,375, 70 Fed. Reg. 17,299, 17,299 (Apr. 1, 2005) (adding pandemic influenza to the list); Exec. Order No. 13,295, 68 Fed. Reg. 17,255, 17,255 (Apr. 4, 2003) (listing communicable diseases subject to quarantine).
189 See U. S. ex rel. Siegel v. Shinnick, 219 F. Supp. 789, 790 (E.D.N.Y. 1963).
190 Id; see also Crayton v. Larabee, 116 N.E. 355 (N.Y. 1917) (upholding the quarantine of an individual who was not sick, but who lived next door to someone infected with smallpox).
191 Saenz v. Roe, 526 U.S. 489, 500 (1999).
192 See, e.g., Edwards v. California, 314 U.S. 160 (1941) (invalidating a state law that impeded the free interstate passage of the indigent).
193 See Gilmore v. Gonzales, 435 F.3d 1125, 1137 (9th Cir. 2006) (rejecting a challenging to TSA identification protocol: “Gilmore does not possess a fundamental right to travel by airplane even though it is the most convenient mode of travel for him.”); Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir. 1991) (“[T]ravelers do not have a constitutional right to the most convenient form of travel. Minor restrictions on travel simply do not amount to the denial of a fundamental right that can be upheld only if the Government has a compelling justification.”) (citation omitted).
194 Id. (“Moreover, the identification policy's ‘burden’ is not unreasonable.” (citing Shapiro v. Thompson, 394 U.S. 618, 629 (1969) (noting the right of all citizens to be “free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement”))), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651, 670–71 (1974).
195 42 U.S.C.A. § 2000bb–1(b).
196 See Employment Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872, 878-79 (1990) (emphasizing that it has “never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate;” indeed, “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)’”).
197 See Hodge, James G., Respecting Religious Freedoms and Protecting the Public’s Health, 130 Pub. Health Reps. 546, 547 (2015)Google Scholar (“Nearly anytime a person can demonstrate a direct physical or economic impact from a governmental policy or program that contravenes the person’s religious exercises, a substantial burden may be found pursuant to RFRA.”).
198 Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751 (2014).
199 Id. at 2783 (“Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.”).
200 See Cohen, Glenn et al., When Religious Freedom Clashes with Access to Care, 371 New Eng. J. Med. 596-99 (2014)CrossRefGoogle Scholar and Hodge, supra note 197 for discussions suggesting that Burwell may someday be applied to vaccinations.
201 See generally Yang, Tony & Silverman, Ross, Legislative Prescriptions for Controlling Nonmedical Vaccine Exemptions, 313 JAMA 247, 247-48 (2015)Google Scholar.
202 See supra note 196.
203 International Health Regulations: Ports, Airports, and Ground Crossings, World Health Org. 1 (2015), http://www.who.int/ihr/about/IHR_Ports_Airports_and_Ground_Crossings_prevent.pdf.
204 See, e.g., World Health Org., International Health Regulations, Article 9 (2005) (“Parties shall, as far as practicable, inform WHO within 24 hours of receipt of evidence a public health risk identified outside their territory that may cause international disease spread as manifested by exported or imported: human cases; vectors which carry infection or contamination; or goods that are contaminated.”).
205 See generally id.
206 See Immigrant and Refugee Health, CDC (Mar. 29, 2012), http://www.cdc.gov/immigrantrefugeehealth/laws-regs/vaccination-immigration/revised-vaccination-immigration-faq.html [https://perma.cc/8CCG-6Z3H].
207 World Health Org., Vaccine-Preventable Diseases and Vaccines, in International Travel and Health 95, 95–145 (2008)Google Scholar.
208 See Helen Branswell, WHO Doesn’t Approve of Canada’s Ebola Visa Ban, Globe & Mail (Nov. 8, 2014, 8:36 PM), http://www.theglobeandmail.com/news/national/who-doesnt-approve-of-canadas-ebola-visa-ban/article21513746/.
209 Id.
210 Id.
211 Id.
212 See Mariner, Wendy K. et. al., Pandemic Preparedness: A Return to the Rule of Law, 1 Drexel L. Rev. 341, 355-56 (2009)Google Scholar (“[T]he Boston health department sought to halt a recurrence of the disease by requiring vaccination against small pox[.] … [In contrast] [w]hen small pox appeared in New York in 1947, the city organized a substantial public education campaign to explain the risks of infection and the benefits of vaccination … The program was a success, and small pox soon disappeared from New York.”)