Legal issues around coronavirus vaccine mandates

Dr. Anthony Fauci, the nation's top public expert on infectious diseases, said a vaccine for the coronavirus could come as soon as early next year. And states, should they choose to do so, have the power to mandate all of their residents get vaccinated.

Professor Wendy Parmet is the director of the Center for Health Policy and Law at Northeastern University. She cited the 1905 U.S. Supreme Court decision called Jacobson v. Massachusetts in which the court upheld a state's smallpox vaccine mandate, holding that "A community has the right to protect itself against an epidemic of disease which threatens the safety of its members."

"We have a long history of vaccine mandates in the country," Parmet said. "Our states have what's called the police power, this is the general power to protect public health."

But if states don't require COVID vaccines, could a Trump or Biden administration enforce a national vaccination law? In 2012, Justice Stephen Breyer, one of the Supreme Court's liberal members, posed such a hypothetical to Michael Carvin, a prominent conservative lawyer.

"If it turned out there was some terrible epidemic sweeping the United States... you'd say the federal government doesn't have the power to get people inoculated, to require them to be inoculated?" Breyer said.

Carvin replied, "My answer is no, they couldn't do it."

That is because the federal government lacks the kind of police power that states possess. And Parmet said that's a good thing.

"It's really hard to check on 320 million people having their booster shot every year," she said. "We don't want that kind of police state."

With the First Amendment's religious liberty protections potentially weakening the reach of state mandates as well, Parmet said the best way to maximize vaccination is with clear messaging, not mandates, from public officials.

"Starting wars over mandates, political wars, legal wars, may well be counterproductive," Parmet said.

In other words, the responsibility will likely be on all of us—citizens and governments, employers and employees—to create the culture to beat COVID-19.


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