A COVID-19 Vaccine Mandate: Would It Do More Harm Than Good?


by Tyler Buban


Introduction

The Covid-19 pandemic shocked the world over the past year in unimaginable ways and has stricken individuals, families, and society with hardships and grief. As new vaccines are developed and being distributed all over the world, countries are straddling the fine line of trying to get their way of life back to normal while continuing to implement policies aimed  at stopping the spread of the disease and decreasing its effects on the populations’ health. The United States is having a particularly difficult time dealing with these issues. Many people are wondering if the government has the power to mandate a vaccine and if so, should it. While—as upheld in Jacobson v. Massachusetts— the state has the constitutional authority to mandate vaccinations, a COVID-19 vaccination should not be made mandatory by state actors because of difficulties with enforcement, inequitable penalties for not cooperating, and public policy issues posed by a mandatory vaccination by the state.[1]

1. The Constitutionality of a Vaccine Mandate

As upheld by the Supreme Court’s ruling in Jacobson, states have the constitutional authority to enact laws requiring citizens to get vaccines.[2] In Jacobson, the Massachusetts state legislature passed a law authorizing cities to require their citizens to get vaccinated against diseases. In 1902, Cambridge adopted a regulation requiring its population to get a vaccine against small pox or be fined five dollars.[3] Jacobson claimed that the mandatory vaccination law was unreasonable, arbitrary, and oppressive and that it violated his individual liberty.[4] However, the Court reasoned that a state has the authority to enact reasonable laws under its police power to protect the public health and safety of its citizens and that the vaccine mandate was a valid exercise of such power.[5] A state may enact reasonable regulations to protect all of its citizens, not just an individual.[6] “The liberty provided to each individual as by the U.S. Constitution does not instill an absolute right in each person to be free from all restraint and there are some restraints designed to protect citizens as a group, at the expense of individual freedom.”[7] States have relied on this ruling to enact vaccines throughout the 20th and 21st century and would ultimately rely on it again if they wished to enact a vaccine mandate for COVID-19.

2. Vaccine Mandate Enforcement Issues

Although states have authority to mandate a COVID-19 vaccine under their police powers, there would be numerous enforcement issues if a vaccine were mandated. Yes, immunization schedules help keep a record of vaccinations and most begin when individuals are children  having to show proof of vaccinations to go to school.[8] However, it is a more complicated administrative manner to have a vaccine mandate that applies to adults because there isn’t a point of common intersection with the state or with some agency of the state like with children.[9] That is why it is more feasible from an enforcement standpoint for private entities like employers, schools, and universities to mandate vaccinations compared to state governments. Further, most broadly applicable mandates, unless accompanied by self-enforcement mechanisms, need some buy-in and compliance to work well. A vaccine mandate in the face of widespread mistrust would raise real enforcement problems.[10] The penalties for non-compliance with a vaccine mandate, unless covered by a medical or religious exemption, pose various issues as well especially along socio-economic lines. Fines issued to people who violate the mandate create issues regarding economic inequalities, and many people would be unable to afford them. In 2019, New York City issued an emergency order requiring the residents of certain neighborhoods in Brooklyn to get the Measles vaccine or face a $1000 fine.[11] Steep fines like this would ultimately have an adverse effect on lower-income areas which lack regular access to the vaccine. Additionally, the vaccine has to be made available without charge or in a way that allows people to get coverage for it if it’s not covered by their insurance; otherwise, there would be adverse impacts on lower income areas as well as enforcement issues.[12]

3. Other Public Policy Issues

A vaccination mandate will likely frustrate broad acceptance of COVID-19 vaccines. There is deep concern and skepticism about the unusually accelerated timetable of the vaccine production.[13] Further, politicization over COVID-19 has deeply stricken the United States regarding masks, social distancing, and other restrictions posed by states.[14] The vaccine will be no different, if not worse, and the polarizing opinions over it would generate mistrust by the public. Moreover, a mandate without transparent efforts to educate the public is a shortcut to suppressing vaccine safety concerns and would breed even stronger resistance.[15] Rather than immediately implementing mandates, government officials need to educate the public more on the importance of the vaccine to stop the spread to increase confidence. After all, many people in the United States are worried about the long-term effects from the vaccine which leads to a reluctance to take it. And, due to the expeditated nature of the vaccine and its relative novelty right now, there is not a lot of data on its long-term effects.[16]

Conclusion

States should not implement a COVID-19 vaccination mandate and instead, leave the vaccine requirements up to private entities because a state mandate may result in enforcement issues, adverse impacts on lower economic classes, and negative public policy consequences.


[1] Jacobson v. Massachusetts, 197 U.S. 11 (1905).

[2] Jacobson, 197 U.S. at 39.

[3] Id. at 12.

[4] Id. at 25.

[5] See id.

[6] Id.

[7] Id. at 26.

[8] Joanne Rosen, Can Covid-19 Vaccines Be Mandatory in the U.S. and Who Decides?, John Hopkins Bloomberg School of Public Health (Nov. 17, 2020), https://www.jhsph.edu/covid-19/articles/can-covid-19-vaccines-be-mandatory-in-the-u-s-and-who-decides.html

[9] Id. at 2.

[10] Dorit Rubenstein Reiss & Y. Tony Yang, Why a COVID-19 Shouldn’t be Mandatory, Bill of Heath Harvard Law (Sept. 15, 2020), https://blog.petrieflom.law.harvard.edu/2020/09/15/covid19-vaccine-mandate-compulsory/

[11] Mark Osborne, New York City issues fines of $1,000 to 3 people who refused to be vaccinated against measles, ABC News, (April 19, 2019),

https://abcnews.go.com/Health/york-city-issues-fines-1000-people-refused-vaccinated/story?id=62501784

[12] Rosen, supra note 8, at 2.

[13] Reiss & Yang, supra note 10, at 1.

[14] Id.

[15] Id. at 2.

[16] COVID-19 Vaccine: What Do We Know About Long Term Side Effects?, Houston Methodist (Jan. 15, 2021), https://www.houstonmethodist.org/blog/articles/2021/jan/covid-19-vaccine-what-do-we-know-about-long-term-side-effects/


Editor’s Note: This article was written based on what was known about Covid-19 vaccines as of February 2021.  Any subsequent vaccine-related developments did not influence this opinion, and this opinion should not be read in light of such developments.  Further, articles in this publication are about the merits and drawbacks of vaccine mandates generally and the arguments are not made with respect to specific vaccines.


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