Examining the Constitutionality (and Desirability) of a Vaccine Mandate
Emily Johnson | June 2021
A first responder receives a COVID-19 vaccine in Baltimore County, MD (December 2020)
n May 13th, President Biden issued remarks regarding the nation’s COVID-19 response and vaccination program. One particularly salient line outlined a new national policy for mask-wearing, a polarizing issue since the beginning of the pandemic. Consistent with Centers for Disease Control and Prevention (CDC) guidelines, Biden announced: “After a year of hard work and so much sacrifice, the rule is very simple: Get vaccinated or wear a mask until you do. It’s vax’ed or masked. Get vaccinated.”
Experts believe that vaccines are effective enough to bring us to a state of herd immunity, which would essentially end the pandemic, but this requires the participation of between 50 to 75% of the population (depending on the actual effectiveness of the vaccine). Furthermore, vaccine distribution is no longer the major obstacle it once was. In fact, according to the White House, 90% of Americans live within 5 miles of a vaccination location. At the time of the address, 60% of American adults had voluntarily received at least one dose of the vaccine.
The keyword here is “voluntarily.” The new mask policy encourages individuals to get vaccinated, but it is not a strict mandate. Nevertheless, this has sparked conversations about whether the government has the authority to force individuals to get vaccinated. A careful balance must be reached between furthering public health interests and preserving the right to bodily autonomy, which is why this debate requires such cautious consideration. An examination of the history of the Supreme Court’s involvement in vaccine controversies provides an adequate place to start unpacking this complex issue.
Jacobson v. Massachusetts
Notwithstanding the introduction of the smallpox vaccine in 1796, which was the first successful vaccine to be developed, smallpox remained a significant public health concern in the early 20th century. In an attempt to eradicate the disease, Massachusetts became one of 11 states to adopt a compulsory vaccination law. In the event of an outbreak, an 1855 state law empowered local health boards to order all adults to be vaccinated or face a fine of $5 (about $153 today). In some localities, schoolchildren were required to show proof of smallpox vaccination before being allowed to attend public schools.
Henning Jacobson became the first to challenge compulsory vaccinations in 1902 when he refused the smallpox vaccine due to a history of bad personal reactions to previous vaccines. His case eventually worked its way up to the Supreme Court, where he argued that the Massachusetts law (subjecting him to a $5 fine) was an “unreasonable, arbitrary, and oppressive” invasion of his liberty.
The Supreme Court disagreed. In a 7-2 decision for Massachusetts, Justice John Marshall Harlan qualified the expression of liberty articulated in the Fourteenth Amendment of the US Constitution. Writing for the majority, Justice Harlan stated that “liberty...does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint.” Vaccination laws were deemed within the police power of the states, and the legislature, not the courts, must decide whether public health interests supersede individual liberty interests. Importantly, this ruling set the precedent that the government may enact compulsory vaccination laws under certain pressing circumstances to promote the common good.
Zucht v. King
The movement against mandatory vaccinations continued in the United States, culminating in the 1922 case Zucht v. King. After the City of San Antonio, Texas adopted an ordinance requiring schoolchildren to provide proof of smallpox vaccination as a condition for attending public school, Rosalyn Zucht filed suit challenging her exclusion based on her refusal to get the vaccine. In a unanimous opinion, Justice Louis Brandeis denied Zucht’s claim of an infringement upon her liberty and reaffirmed the Court’s decision in Jacobson. The Court reasoned that the ordinance “[confered] not arbitrary power, but only that broad discretion required for the protection of the public health.” Once again, the government confirmed the constitutionality of vaccination requirements.
Incentives, Not Mandates
These cases call into question whether a similar vaccine requirement may be instituted to combat the COVID-19 pandemic. Together, the precedent suggests that public health interests may overcome individual liberty interests in the face of exigent circumstances. As of late May 2021, the disease has already claimed over 580,000 lives in the United States. Public health concerns appear significant enough to call into question whether it is necessary to curtail individual rights for the good of society as a whole, given what we know about the effectiveness of the vaccine and its likelihood to eventually eliminate COVID-19.
Despite the Court’s willingness to defer to state legislatures, President Biden has repeatedly stated that he will not impose a vaccine mandate. It is still to be determined if businesses and public school districts will impose stricter requirements, although incentives have become an increasingly popular method to encourage, rather than compel, vaccination.
For example, New York City Mayor Bill de Blasio recently announced a partnership with Shake Shack where residents can show proof of immunization to get free fries. In a similar vein, Long Beach, California Mayor Robert Garcia is offering free aquarium tickets, video game consoles, and hotel stays for those recently vaccinated. These leaders recognize the need for balance between vaccinating the public and respecting individual liberties, a complex legal issue that has remained mostly dormant since the early 1900s.
It is becoming increasingly clear that the vaccine will be our way out of the pandemic. Early evidence shows that coronavirus cases have recently dropped in over half of the states, which can potentially be attributed to a larger proportion of Americans getting vaccinated. While I personally believe mandatory vaccinations may be a step too far in encroaching upon Americans’ right to bodily autonomy, perhaps mandatory vaccinations are not necessary after all. States, cities, and businesses should continue to incentivize immunization, a nudge that might be enough to encourage individuals to get the vaccine through the use of material rewards. It is also possible that a new mandatory masking policy would push skeptics closer to getting the vaccine, as many Americans are growing tired of covering their noses and mouths in public settings.
Yet notwithstanding the legal precedent that suggests the government can compel vaccination, the more empowering and autonomy-respecting way to get the population vaccinated is to offer incentives and let individuals decide to get the vaccine for themselves. An incentives-based policy, in respecting Americans’ freedom to choose the alterations that are made to their immune systems, would better ensure the all-too-popular promise in the Declaration of Independence of “Life, Liberty, and the pursuit of Happiness.”