There seems to be general agreement, at least within the discipline of epidemiology, that the best chance for ending the COVID-19 pandemic lies in the development of a safe and effective vaccine, and its use by a high percentage of the population.
However, there seems to be a troubling undercurrent in that a significant percentage of the population would refuse to use this vaccine if it became available, thereby dooming efforts to end the pandemic through mass inoculation. The reasons for this, in addition to a vague general fear of vaccines, are varied. For example, trust in government is at a low point (and trust in science isn’t doing much better). News about a COVID-19 vaccine is now being given a political spin (and we have an election looming where claims about a vaccine are likely to be used as a campaign tool). And vaccine development efforts are proceeding at a pace never seen before, called Operation Warp Speed by the Trump administration (and haste makes waste). It’s not surprising, then, that people might be saying: “You’re not going to put that stuff in MY body.”
This scenario leads to an important legal question — can a government entity, through a legislative act, compel people to be vaccinated? The answer to this question is yes, confirmed by the U.S. Supreme Court back in 1905 in a case called Jacobson v. Massachusetts. In this case, Massachusetts had in place a statute allowing local governments to require vaccinations if, in the opinion of the local government’s board of health, this was necessary for the public health and safety. In reliance on this statute, the city of Cambridge, concluding that smallpox was still a problem in the city, put in place a rule requiring smallpox vaccinations. Pastor Henning Jacobson refused to be vaccinated, and was prosecuted and found guilty of violating the rule (and fined $5). He appealed, claiming Cambridge’s mandatory vaccination rule impaired his liberty rights under the 14th Amendment to the U.S. Constitution.
The Supreme Court, however, held that Massachusetts’ statute and Cambridge’s rule did not violate Jacobson’s Constitutional rights. In play here was the concept of a government’s police power, which allows for “reasonable regulations established by legislative enactment as will protect the public health and the public safety.” The court went on to say: “The liberty secured by the Constitution does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint.” And, “real liberty for all could not exist under the operation of a principle which recognizes the right of each individual to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”
The court did recognize that a local community seeking to protect itself against an epidemic threatening the safety of all might act in “an arbitrary, unreasonable manner or might go so far beyond what was reasonably required for the safety of the public” as to cause a court to override a legislative act. Cambridge, however, did not cross over this line.
As a matter of political reality, it seems unlikely Congress or any state or local government would attempt to put in place a mandatory COVID-19 vaccination order. However, the Constitution would not prevent such an order, as long as it was not arbitrary or unreasonable. And therein would lie the legal battlefield.
Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. You can contact him at firstname.lastname@example.org.