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Blog > Issues > Separation of Powers > Can the government force you to get a vaccine?

Can the government force you to get a vaccine?

April 14, 2021 I By ANASTASIA BODEN

The COVID-19 vaccine is one of the greatest advancements of medical science ever. But while the vaccine represents a welcome key to finally overcoming COVID-19, it has also renewed the questions surrounding government’s involvement in our health. Confusion and debate around vaccine eligibility or “vaccine passports” all lead to one central question: Can the government force you to get a vaccine?

Some say the answer is obviously “yes,” pointing to a 1905 U.S. Supreme Court decision in the case of Jacobson v. Massachusetts. However, that decision, which upheld a mandatory vaccinations law in the Bay State, is an imperfect guide to resolving today’s vaccination debate.

First, the background on Jacobson: The case stemmed from a smallpox outbreak in New England at a time when the disease was still highly lethal. At the height of smallpox epidemics in the late 1800s, fatality rates reached as high as 80%, and even those who were infected and recovered were left with nasty, permanent scarring.

Luckily for the people at that time, a smallpox vaccine was in circulation. In fact, smallpox had been the first infectious disease that scientists had beaten with a vaccine. But in response to that latest outbreak, Massachusetts officials imposed a mandatory vaccine law as a public health measure.

In Cambridge, a minister named Henning Jacobson contested the state’s vaccine mandate in court, arguing that the law violated his constitutional rights under the Fourteenth Amendment. That case wound up at the Supreme Court, which ruled in the state’s favor.

In the end, the Supreme Court ruled that the government could require citizens to be inoculated.

End of discussion, right? Not necessarily. It’s worth probing how the current situation differs from this case that happened over a century ago.

The Jacobson decision was relatively limited in scope. First, Jacobson did not say that the government could hold you down and stick a needle in your arm. It said the government could, under certain circumstances, pass a law requiring you to get a vaccine or pay a $5 fine (about $150 in today’s dollars). So, the decision doesn’t necessarily support the idea that vaccination can be legally compelled.

Second, the Court explicitly said there was no evidence that the smallpox vaccines were dangerous or didn’t work. At that time, smallpox vaccines had been around for a hundred years and had been shown to be relatively safe and effective. Had there been questions about the safety or efficacy of the smallpox vaccine in 1905, the Justices may have thought differently.

Lastly, it’s important to note that Jacobson establishes a reasonableness test.

Government actions must be reasonable under any circumstances, and what is defined as reasonable may change based on the facts. It doesn’t mean that when there’s an emergency, the government suddenly has more power and the courts must simply defer to that power. There is no world in which the government should enjoy the right to be unreasonable—even in a public health emergency.

This gets at the root of why we should be skeptical of those who invoke Jacobson in today’s debate. Some legal experts seem to view the Jacobson decision as essentially a “free pass” for whatever emergency measures government officials feel are needed to combat COVID-19. But an emergency is not a blank check for politicians and bureaucrats to enact any law, regulation, or policy they choose.

Even during an emergency, lawmakers must establish and enforce policies that balance public safety with individual rights, and they must do so by going through the proper channels while respecting our Separation of Powers.

So how should Americans view the COVID-19 debates today in light of Jacobson? Jacobson establishes that the government must provide clear evidence that what it’s doing is necessary, in a transparent and accountable manner. In Jacobson, the Court essentially said, “We think this vaccine requirement is a pretty reasonable and narrow restriction on people’s liberty in light of the circumstances.”

But Jacobson is not a justification for any and all restrictions on liberty, even in the context of a public health emergency.

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