Two COVID-19 vaccines have been submitted for approval to the Food and Drug Administration. While this is an important step towards bringing the pandemic under control, the vaccine’s efficacy is limited unless an overwhelming majority of the population is vaccinated.
Current polling suggests that only a slim majority of people would choose to receive the vaccine. So, if large numbers of people are unwilling to receive the vaccine, what’s next? Can the government make vaccination mandatory? Established case law demonstrates that it’s legally feasible, but whether lawmakers choose to pursue such legislation is an entirely different question in the current political atmosphere.
The Current State of COVID-19 Vaccines
As two apparently safe and effective COVID-19 vaccines rapidly make their way through the Food and Drug Administration’s approval process—the FDA has scheduled a meeting on December 10th, 2020 to consider Pfizer’s emergency use authorization request, and Moderna’s request will be considered a week later—certain Americans (health care workers, residents of long-term care facilities) will likely begin receiving their initial dose [1] of the vaccines before the end of 2020. Initial doses of the vaccines are expected to be available to the general public by the spring of 2021.
Though this is good news, data suggests that government and health officials have a long way to go in convincing the public that the vaccines are safe and effective. Polls indicate that only a slight majority of Americans are currently willing to take the vaccine once available. This is unsurprising given the political polarization around vaccines generally, and the government’s COVID-19 response specifically. The frenzied pace at which these vaccines were developed may also cause skepticism.
As additional information about the vaccines is released, including the clinical trial data, the number of people willing to receive the vaccine should increase. However, if the government is unable to convince enough citizens to take the vaccine, could it actually require vaccination?
Why It Matters: Herd Immunity
The goal of any mass inoculation is to create herd immunity within the population, not just immunity within the individual vaccine recipients. Herd immunity refers to the point at which a threshold number of individuals in a population are immunized from a disease, making further spread of the disease unlikely, even among those not yet immunized. In other words, herd immunity provides protection even to those who are unable to take the vaccine, including the immune-suppressed, those with religious or philosophical objections to vaccinations, and in the case of the COVID-19 vaccines, children.
Experts estimate that at least 70% of the population will need to be vaccinated before herd immunity can be achieved. Could this gap—between the number currently willing to take the vaccination and the 70% needed to reach herd immunity—be closed through a mandatory vaccination program?
Mandatory Vaccinations Under State Law
Mandatory vaccinations have a long history the United States. In 1905, the Supreme Court, in Jacobson v. Commonwealth of Massachusetts, upheld a state statute mandating smallpox vaccinations against a constitutional challenge. 197 U.S. 11 (1905). The defendant in that case, Henning Jacobson, was found guilty of refusing to take the vaccine and fined $5. Id. at 14. Jacobson appealed the conviction, arguing that the statute was unconstitutional under various grounds, but principally, that the law was “unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care of his own body and health in such way as to him seems best.” Id. at 26.
The Supreme Court rejected Jacobson’s arguments, holding that the inherent authority of the state under its “police power” permitted it to enact laws to “protect the public health and public safety.” Id. at 25. Furthermore, the Court wrote, the liberty under the Constitution is not “absolute… wholly freed from restraint.” Id. at 26. The Court explained:
Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others… The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.
Id.
Unquestionably, Jacobson is “old law,” and it can rightfully be criticized for being overly broad in its language, but it remains good law. Page v. Cuomo, 2020 WL 4589329 (Dist. NY, August 11, 2020). Since the Supreme Court’s decision 115 years ago, “courts across the country have nearly uniformly relied upon Jacobson’s framework to analyze emergency public health measure put in place to curb” public health crises. Id. at 8; see also, Hickox v. Christie, 205 F. Supp.3d 579, 591 (D. N.J. 2016) (evaluating constitutional challenge to federal quarantine order asserted by a plaintiff returning to U.S. after treating Ebola patients abroad). Furthermore, all 50 states have legislation requiring vaccines in some form or another, usually mandating that students receive a vaccination (think measles, mumps, rubella) before attending school.
Mandatory Vaccinations Under Federal Law
While Jacobson supports a state’s authority to enact public safety laws, including mandatory vaccinations, the question of whether the federal government could impose similar requirements is more complex and unsettled. Unlike states, the federal government does not have inherent powers, such as the “police power.” Congress is limited to those grants of power found in the Constitution, and the Constitution provides no explicit authority for Congress to enact public health laws.
Prior to 2012, Congress would likely have relied upon the Commerce Clause of the Constitution, Article 1, Section 8, Clause 3, which gives Congress the power “to regulate commerce with foreign nations, and among the several states” and which had been broadly interpreted to give Congress the authority to regulate both interstate and intrastate commerce. At its broadest, the Commerce Clause permitted regulation of even non-economic activity, as long as the activity had a “substantial economic effect” on interstate commerce. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
Recently, however, the conservative Supreme Court has interpreted the Commerce Clause more strictly, striking down laws that would have previously been permitted under the Commerce Clause. In the landmark National Federal of Independent Business v. Sebelius, 567 U.S. 519 (2012), better known as the first Obamacare decision, the Supreme Court held that Congress could not require that individuals purchase health insurance, at least under the Commerce Clause. Id. The Court reasoned that requiring the purchase of health insurance was not the regulation of commercial activity, but rather, the regulation of commercial inactivity, and, accordingly, was not permissible under the Commerce Clause. Id.
The Court, though, did find that Congress had the authority under its taxing power to tax individuals that failed to purchase health insurance pursuant to the Affordable Care Act’s individual mandate, and it is this authority that would likely be relied upon if the federal government were to pursue a mandatory vaccination program. Under the current makeup of the Supreme Court, with Justice Amy Coney Barrett now replacing Justice Ruth Bader Ginsburg, it is unclear whether the Court in 2021 would come to the same conclusion as it did in 2012.
Mandating Vaccines in the Current Political Climate
Of course, none of this is to suggest that the either the federal government or state governments will absolutely institute mandatory vaccinations programs for the COVID-19 vaccines. Although the states almost certainly do, and the federal government may, have the authority to pass these types of public health laws from a legal perspective, they may be politically unviable.
So far, governing authorities have been hesitant to even mandate the wearing of masks for fear of political backlash. It is far more likely that the state and federal governments will exhaust all efforts to persuade citizens to voluntarily take the vaccine before passing laws perceived to be intrusive. However, if the government’s powers of persuasion are not effective in getting the vaccination rates high enough to reach herd immunity levels, more drastic measures could be taken.
[1] The vaccines of both Pfizer and Moderna require two doses, taken several weeks apart, to be effective.
