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Could You Be Ordered to Receive a COVID-19 Vaccination?

Close-up medical syringe with a vaccine.
By Richard Dahl on August 07, 2020 8:57 AM

Fingers crossed, many of us scan the news every day for word that a COVID-19 vaccine might become reality in the not-too-distant future.

Indeed, scientists around the world are working at warp speed to do precisely that. But once vaccines become available, another hurdle may remain before we can put an end to the epidemic: Enough people will have to be inoculated.

While an effective vaccine may protect those who get inoculated, polls are revealing that about one third of the population say they don't want to become vaccinated. If that's true, it may mean that we will fall short of reaching "herd immunity" and halting the virus.

So, the question arises: Could the government order you to be vaccinated?

Some law professors and legal analysts have been mulling that question, and the answer doesn't seem totally clear.

What is clear, they agree, is that states have the power to require vaccinations. What is not clear is whether the federal government could take such a step.

States' Vaccination Powers

Ever since the 1905 U.S. Supreme Court case Jacobson v. Massachusetts, the right of states to require vaccinations (if they choose) has been the law of the land. In that case, the justices ruled that a Massachusetts law requiring smallpox vaccinations for adults was constitutional.

Courts have continued to uphold Jacobson, and states have continued to require vaccinations when they see fit. Although exemption rules vary, all 50 states have laws requiring school children to be vaccinated.

Sometimes governments rely on these powers to order broad-scale vaccinations when a disease emerges and spreads. In 2019, for instance, the re-emergence of measles prompted the New York City health commissioner to require that all school children in the city be vaccinated for measles. The penalty for refusal: $1,000.

Since states have strong vaccination powers, are they the pathway to widespread inoculation and herd immunity?

Probably not.

"(I)n the United States today, where even mask mandates are controversial, it is unlikely that many states will enact a compulsory vaccination policy for everyone," Baruch College law professor Debbie Kaminer wrote recently in The Conversation, a nonprofit academic website. "Additionally, there is 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."

What About the Feds?

The picture here is even murkier.

In May, the New York State Bar Association Health Law Section's Task Force on COVID-19 called for mandatory vaccination of all Americans when a vaccine becomes available.

However, as the authors of a July 23 opinion piece in The Hill point out, required nationwide vaccination faces huge stumbling blocks. Dorit Rubenstein Reiss, a professor at the University of California Hastings College of the Law, and Y. Tony Yang, a professor at the George Washington University School of Nursing, contend that "Congress may not have the legal authority to mandate vaccinations."

They point out that Congress has broad powers to regulate interstate commerce, but that "(a) federal vaccine mandate would likely be found unconstitutional under the Commerce Clause because it would regulate activity that is not solely economic."

Modified Approaches

So, if blanket mandates by states and the federal government aren't realistic, then what?

The best bet, legal experts say, is probably to seek some kind of middle ground. One technique, they say, could be a penalty system for those who refuse vaccination.

There may be a strong precedent for this kind of approach in the Supreme Court's 2012 ruling upholding the individual mandate of the Affordable Care Act. Since then, Americans can opt out of having health insurance if they're willing to pay a penalty at tax time. By this reasoning, the same could hold true for a time with COVID-19 vaccinations.

The feds could also use a carrot-and-stick approach with states and withdraw funding if states fall short on vaccinations.

"In either case, that does not mean an individual could be vaccinated against their will if they were willing to suffer the consequences of not doing so," attorney Steven Wilker told Newsweek. Another approach could be legislation that would indirectly prod people to get the vaccine by having to require proof of inoculation in order to fly in an airplane, get a passport, or use public transportation.

Reiss and Yang, the authors of The Hill article, argue that the best approach might be a more cooperative one where the federal government "encourages" states to increase vaccination rates and by engaging state and local health officials in the effort.

A sizeable population in the U.S., the "anti-vaxxers," might be hard to convince. But they don't comprise the entire population of people who are skeptical of COVID-19 vaccines. Some mistrust a vaccine that would be promoted by the Trump administration. Others prefer to wait and see how the first vaccinations pan out.

Going back to the original question of whether the government can order you to get a COVID-19 vaccination, the level of skepticism and outright opposition would seem to indicate that forced vaccinations would be difficult for the government to pull off. Yes, the government has the power to make you do it. But they'll probably do it in subtle ways.

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