Some would argue that, during one of the worst public health and financial crises in recent history, a safe and effective vaccine could end the coronavirus pandemic. But only if enough people get inoculated.
Others like Robert F. Kennedy, Jr. would argue that “the COVID-19 pandemic has proven an opportunity of convenience for totalitarian elements who have put individual rights and freedoms globally under siege.”
Recent polls suggest that only about two-thirds of adults say they would get the vaccine. While that might protect most people who get vaccinated, it may be insufficient to reach herd immunity, and stop the virus’s spread. Is a government mandated vaccine plan medical tyranny, or just government’s legitimate response to a public health problem?
It may surprise you to learn that the government may have a legal right to enforce such a rule.
In Jacobson v. Massachusetts, the United States Supreme Court upheld the constitutionality of a state criminal law that required all adult inhabitants of Cambridge, Mass. to get a smallpox vaccine or be fined. The Supreme Court explained that an individual’s liberty rights under the U.S. Constitution are not absolute and the mandatory vaccination law was necessary to promote public health and safety.
While Jacobson v. Massachusetts is over 100 years old, courts continue to rely on the court’s reasoning. State governments occasionally enact broad compulsory vaccination policies. In 2019, amid a measles outbreak, New York City mandated that anyone over six months of age who lived, went to school, or worked in several ZIP codes within the city had to be vaccinated against measles or be subject to a fine.
Religious, medical, and philosophical exemptions abound with compulsory vaccination laws. Some states like New York and California have eliminated the religious and philosophical exemptions in recent years. Courts reasoned that while compulsory vaccination laws may burden religious practices, religious exemptions are not constitutionally required under the First Amendment’s free exercise clause since mandatory vaccination does not single out religion and is not motivated by a desire to interfere with religion.
Mandating vaccines in the current environment could be very controversial. There’s a risk that heavy-handed public health tactics can backfire and escalate tensions, increase mistrust of government, and unintentionally increase the influence of the anti-vaccination movement.
My next few posts will focus on legal immunity for vaccine19 manufacturers, the possibility of requiring vaccinations for “travel passports,” as well as, what private employers may or may not require of their employees.
Carl Brizzi is a former two term elected prosecutor who practices personal injury law in Indiana.