Brian Michael Bendis new Invincible Iron Man #1 adds a new taboo topic for a first date: Developing a cure to the mutant gene. This immediately raises the issue it would become a law, injecting politics into a date (another taboo). Dr. Amara Perera admits the horror of her cure and that it would be like trying to cure Judaism (adding religion into a first date, another taboo). Since this date is with Tony Stark, sex is eluded to, completing the dating no-no topic discussions.

Dating best practices aside, would it be legal to force people to take a cure for the mutant gene? The answer is surprisingly maybe…

IronMan_MutantGene_Cure_1Governments have a rational interest in protecting the public health. This is a legitimate police power.

Puberty is hard enough, so turning into an armadillo or flying lizard is just adding insult to teenage injury. Furthermore, governments have an interest in protecting students (and the public) from dangers, such as kids who cannot control deadly lasers shooting out of their eyes.

Is there any precedent that the government could use to justify having people take a “cure” to the mutant gene?

Many states require mandatory vaccinations to attend public schools. While parents might insist they have a God-given right based on pseudo-science for their children to contract Polio and kill a generation of Americans, this is not the majority view (Exhibit A is we have not had a Polio epidemic thanks to vaccinations).

The state of West Virginia requires children entering a state-regulated school to produce a certificate that they have been immunized against chickenpox, hepatitis B, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough. W. Va. Code § 16-3-4(b). New York takes it to another level and places the responsibility on the parents that any child born after January 1, 1994 be immunized against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, Haemophilus influenzae type b (Hib), pertussis, tetanus, pneumococcal disease, and hepatitis B. NY CLS Pub Health § 2164(a).

States have a facially strong argument that immunizing children against the mutant gene in order to attend public schools is for public safety. The United States Supreme Court has held since 1905 that mandatory vaccinations are within the State’s police power. Jacobson v. Massachusetts (1905) 197 U.S. 11. We do not want the public dying horrible deaths from diseases, thus require vaccines.

There is a giant problem with the argument for forcing children to be vaccinated against the mutant gene in order to attend school: it is based on race and eugenics, not preventing the spread of disease. It is one thing for everyone student to be vaccinated, it is another to target an entire race because of their DNA.

Vaccination cases have not been held to the strict scrutiny standard. From Jacobson in 1905, which addressed people over age twenty-one being required to be vaccinated against small pox or be criminally prosecuted, to vaccinating children in New York who attend public school, all of these cases were decided within a State’s police power. Phillips v. City of New York (2d Cir. 2015) 775 F.3d 538, 542, fn. 5.

Race based legislation is held to strict scrutiny. If racial classifications are explicit, there is no requirement to analyze the legislative purpose of the law. However, facially neutral laws warrant strict scrutiny when motivated by racial purpose or unexplainable on grounds other than race. Hunt v Cromartie (1999) 526 US 541.

Specifically requiring children with the mutant gene arguably could subject the law to strict scrutiny, because the law would be targeted specifically at children with mutant DNA and not the public as a whole. While mandatory vaccinations are not targeted to specific racial groups, vaccinating children with mutant DNA would be on race (Homo Superior, opposed to Homo Sapien).

Strict scrutiny analysis examines the 1) character of classification in question; 2) individual interests affected by classification; and 3) governmental interests asserted in support of classification.

As to the first point, the classification is for anyone with mutant DNA; 2) the individual interests are that the individual is forced to take medication in order they do not mutate as they get older; and 3) the government interest is to ensure there are not super-powered individuals endangering the public (namely other students in public schools).

There is a good chance mutant vaccinations could NOT survive strict scrutiny, but there is no question the vaccination is not to stop the spread of disease, but the speculative injury to students in the future if their classmates can breathe fire, spit venom, or throw a bus into the pool.

If the “cure” were expanded to adults who had already mutated, that would be different than the State interest in protecting the public as a legitimate police power. It would be the equivalent of gun confiscation of law-abiding citizens or bringing back Prohibition in order to stop drunk driving. Just because someone had the ability to fly, does not mean they will use for ill intent.

In a world with mutants, those with powers might be viewed as those who are athletes or excel from other gifts. There is no way to “equalize” the population so everyone is the same, only that they have the same opportunities to advance. Whether or not it would be legal to impose a cure to the mutant gene might one day be decided by a fictional court, but unlikely one in the real world.