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Blog > Issues > Separation of Powers > Are mandatory vaccinations and vaccine passports constitutional?

Are mandatory vaccinations and vaccine passports constitutional?

June 08, 2021 I By JAMES BURLING

As COVID vaccines continue to become more widely available, the conversation has turned to whether the government should mandate vaccinations. Some policy proposals have called for vaccine passports to ensure that the unvaccinated do not harm others, while other proposals ban businesses from inquiring about vaccination status.

Are mandatory vaccinations and vaccine passports constitutional? The answer is not so simple, but America does have extensive experience with the issue.

In 1853, yellow fever killed almost 8,000 people in New Orleans; 1859 was a particularly bad year in New York City when roughly one out of every 27 New Yorkers died from such killers as cholera, smallpox, typhoid fever, malaria, yellow fever, and tuberculosis. It was against this backdrop that municipal health boards were created and given broad powers to combat communicable disease. Governments began to take on the responsibility of protecting its citizens, not only against foreign invasions and domestic criminals but also against the ravages of disease.

To fight these epidemics, the newly created authorities imposed quarantines for the sick, established light and ventilation requirements in apartments, cleaned up water supplies, and even required some mandatory vaccines.

These measures were not always well-liked and their impact on individual rights could be severe. Yet by and large they were upheld by the courts with little dissent.

In 1898, as the SS Britannia was sailing from Europe toward New Orleans with 408 passengers, mostly Italian immigrants, the city imposed a quarantine and forbade the Britannia from docking. City officials claimed they wanted to protect the passengers from a yellow fever outbreak that had killed one resident a year earlier.

After the steamship was forced to disembark its passengers in Pensacola, Florida, the owners sued, claiming that the quarantine was a thinly veiled attempt to keep out Italian immigrants and violated the Constitution because it interfered with commerce.

After the case reached the Supreme Court in 1902, all nine Justices agreed that states could impose quarantines to protect public health. Two Justices expressed doubt that a lawful quarantine could exclude otherwise healthy immigrants and were concerned that the New Orleans quarantine might interfere with some treaties with European states. As for quarantines to confine the sick, the Court said  that the matter was “so well settled,” it was “no longer open to doubt.”

But a quarantine’s effect on civil liberties could be too extreme. In 1900, for example, San Francisco imposed a quarantine on Chinatown to fight the bubonic plague. Over 15,000 people in the quarantine zone could not leave—unless they were white.

A shopkeeper named Jew Ho objected, arguing that it made it impossible for him to run his grocery store. With lightning speed, two weeks after it was adopted, the Ninth Circuit struck down the quarantine. Not only was it unable to protect public health, but the city had “no authority or right to enforce any ordinance in this city that shall discriminate against any class of persons in favor of another.”

A quarantine’s involuntary confinement pales in comparison to a forced bodily invasion from a vaccine. The medical consensus is that vaccines are critical to public health. Indeed, vaccines are a substantial reason why New York City no longer loses 3.8% of its population in a single year largely from infectious diseases. Vaccines are also responsible for wiping smallpox off the face of the earth. But in 1902, a Swedish immigrant named Henning Jacobson objected when Boston, like many other cities, demanded that he get a smallpox vaccine. He refused, claiming that when he was a child in Sweden, a vaccine caused “great and extreme suffering for a long period by a disease produced by vaccination.” Boston fined him $5, which is roughly equivalent to $150 in today’s dollars.

Jacobson sued. He lost first at the Massachusetts Supreme Court. That court denied him the authority to introduce any evidence, because it said that evidence “could not have changed the result.”

Jacobson next went to the U.S. Supreme Court, where he claimed the mandatory vaccine was “an assault upon his person” and “hostile to the inherent right of every freeman to care for his own body and health in a way as to him seems best.” The Court did not agree.

Justice John Marshall Harlan began the Court’s 1905 decision in Massachusetts v. Jacobson by saying that liberty secured by the Constitution does not create “an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Otherwise, we “would soon be confronted with disorder and anarchy.”

In a distinctly anti-libertarian tone, the unanimous Court held that no minority of persons “should have the power thus to dominate the majority when supported in their action by the authority of the state.” After all, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

Jacobson’s case with the smallpox vaccine is relevant to the current COVID-19 pandemic, but there are important differences between the diseases. COVID-19, while more widespread than smallpox, is not nearly as deadly. Smallpox killed 30% of those infected; twice that number suffered permanent disfigurement. On the other hand, the early versions of the smallpox vaccine were far more dangerous than what we have seen from the COVID vaccines.

As of now, no government agency in the United States has attempted to mandate COVID vaccines. However, if a government were to make them mandatory, then the Supreme Court may well be forced to consider whether Jacobson applies and whether it remains good law.

But what of requiring a vaccine as a condition to fly, to go to school, to shop, or to work for a public or private employer? Can we be forced to get a vaccine passport for COVID-19?

School districts across the country require children to have a range of vaccinations in order to attend school. And for many parents, the public schools are their only education option. While this has been a politically fraught issue, it is well-settled that—with some limited exceptions—such a requirement is constitutional. There may be little constitutional reason why a COVID vaccine would be treated any differently, once it is proven to be safe and effective for children.

As for employers, does their right to set conditions for workplace safety trump the concerns of their employees? Under federal and state labor law, employers cannot set conditions that discriminate based on certain religious, health, or disability concerns. To date, no court has decided whether a refusal by an otherwise healthy individual to get vaccinated is protected by these laws.

On May 28 of this year, the Equal Employment Opportunity Commission (EEOC) issued a guidance letter saying that employers can require employees to become vaccinated in order to avoid a “direct threat” to others in the workplace. But that is simply an agency opinion and does not carry the force of law unless and until a court agrees.

What if a state passes a law declaring it to be illegal for an employer to demand its employees become vaccinated? Such a law would surely be challenged under federal law. Whether the challenge succeeds would depend on whether a court finds the ambiguous language in the relevant federal laws is specific enough to trump state and local laws.

What about stores, airlines, and other public transportation? Since the federal and state governments have imposed mask requirements for airline passengers, could it also impose a vaccine requirement?

Businesses are in a tough place. If they do demand vaccine passports, a few people who cannot be vaccinated will be unable shop and fly. If they don’t demand vaccine passports, some might be reluctant to utilize their services or the business might be sued if someone claims to have been sickened while shopping or on a flight.

In a truly free market, the competitive advantage of one course of action over the other might guide a business’ choice. But in our highly litigious and regulatory environment, private companies may be feeling forced to make a choice despite their competitive instincts.

Legal and policy choices like this are tough. If one wants to avoid the potentially debilitating or even deadly effects of COVID-19, then that person can choose to get the vaccine. And if one prefers the risk of the disease over the bodily invasion of a vaccine, then that person may choose not to be vaccinated. However, whether the government can mandate the choice is unclear.

The Constitution protects individual rights, but for this question, on which side does that cut?

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