Haven’t You Herd?: Can the COVID-19 Vaccine be Compulsory to Reach Herd Immunity

Image Credit: https://blogs.microsoft.com/blog/2020/12/11/successful-covid-19-vaccine-delivery-requires-strong-tech-partnerships/

By Brooke Sheldon, JHBL Staff Member

Throughout the pandemic, the dream of a COVID-19 vaccine seemed like the light at the end of the tunnel for many. As that dream turned into a reality, states began distributing the vaccine to certain high-risk groups of people, including frontline healthcare workers (heroes), the elderly, and those with health complications. As the vaccine gets closer to being administered to the general public, many wonder if they want the vaccine at all. A recent Gallup Poll reveals that 42% of Americans said they would not participate in a program involving a free government-approved vaccine. American’s hesitation likely stems from the general stigma surrounding the health effects of vaccines, as well as the COVID-19 vaccine’s unprecedented development speed. As reluctance towards COVID-19 vaccinations grows, the potential for herd immunity inherently decreases. Many see the solution as compulsory COVID vaccinations, raising the question of whether the government has the power to mandate a COVID vaccination. To better understand what we can expect from the vaccine moving forward, it is important to understand why vaccines are so important and where the law stands regarding making them compulsory.

The concept of a mandatory vaccine seems foreign to many Americans, but it is actually commonplace in most states. For example, all 50 states enacted statutes requiring students to be vaccinated for particular illnesses (measles, mumps, and chickenpox, to name just a few) in order to protect individual children and maximize herd immunity. However, these laws inherently contradict the individual liberties granted to Americans in the Constitution. This contradiction is an understandable source of weariness towards compulsory vaccines.

According to the CDC, vaccines are the most important public health achievement in the last century, which begs the question of why so many Americans are reluctant to get the COVID-19 vaccine. It is critical that more people choose to get vaccinated than not because vaccine success relies on herd immunity. According to the CDC, herd immunity happens when enough of the population becomes exposed to an infectious disease, either through vaccination or prior illness, that the chances of spreading the illness from person to person are unlikely. Moreover, the CDC has stated that two-thirds of the nation’s population will need to be vaccinated to achieve herd immunity. If too many eligible people choose not to be vaccinated, communities will not achieve herd immunity, prompting the government to consider action.

While the federal government has never invoked a national vaccine mandate, “such a requirement would be within the federal government’s powers,” according to Dr. Dorit Reiss, a professor at the University of California Hastings Law. However, it is unlikely the federal government will have the authority to mandate the vaccine. Current White House chief medical advisor Dr. Fauci stated, “we don’t want to be mandating from the federal government to the general population. It would be unenforceable and inappropriate.”[2]

If the federal government declines, the state government likely has the requisite police power to enforce a compulsory vaccine law to reach herd immunity. Local and state governments have taken action, in the name of public health, to combat COVID. Throughout the pandemic, state and local governments have imposed curfews, stay-at-home orders, and mask mandates on citizens. The conclusion flows logically from these actions that state and local governments may have the power to mandate a COVID-19 vaccination ‘in the name of public health.’

Legal precedent on this issue dates back to a 1905 Massachusetts case, Jacobson v. Massachusetts.[3] The Supreme Court upheld a regulation requiring all Cambridge residents to be vaccinated for the infamous smallpox virus. First, the Court in Jacobson held that the state had broad authority, through its police powers, to enforce non-arbitrary public health restrictions on the people of Cambridge. This “non-arbitrary” standard gives the government broad discretion in implementing public health policies. However, the Jacobsen Court was not ignorant to the issues a broad reading of “police powers” could cause in the future as it warned states could exceed their police powers when the regulations imposed were “oppressive” or “arbitrary.” Jacobson has become a touchstone for state power during a public health crisis, but will its century-old holding stand the test of time?

The Court in Jacobson noted that some individual rights must inherently be sacrificed for the common good. Public health law has long recognized that individual rights do not exist in a vacuum but are exercised in the broader context of populations. For many, the idea of giving up a right for the benefit of society is not only scary, but conflicts with the highly individualistic ideals instilled in decades of American’s. Individualism and skepticism of an overpowering government have only grown stronger since Jacobson, which could necessitate a stricter standard of review for government invasions of individual liberty in the name of combatting COVID.

The concept of opposing vaccines isn’t new, as seen in Jacobson, but the dominant reasons for opposing vaccinations have changed over the years. In the past century, there has been an overwhelming increase in the mistrust of science and government. The mistrust has become so great that the term “anti-vaxxer” was coined to refer to those who choose not to vaccinate themselves or their children, believing that vaccines cause serious health complications. More recently, in the months leading to the 2021 election, many anti-vaxxer’s turned into “anti-masker’s” and refused to wear masks or adhere to other public health guidelines in the name of “freedom” and “patriotism.”

Most theories pushed by anti-vaxxers and anti-masker’s come from misinformation and are medically unfounded. For example, many anti-vaxxer’s believe the MMR vaccine (used to prevent measles, mumps, and rubella) causes autism, despite the multiple scientific studies consisting of large samples that show the vaccine does not cause autism. Anti-vaxxers also assert that vaccines contain unsafe toxins such as formaldehyde, mercury, or aluminum that are harmful to our health. While these chemicals can be toxic to the human body at certain levels, vaccines approved by the FDA only contain trace levels of such toxins, and according to the FDA and CDC, formaldehyde is actually produced at higher levels by our own immune systems. Moreover, there is currently no scientific evidence that exposure to low levels of these toxins in vaccines is dangerous.

In most circumstances, Americans are granted a fundamental right to choose what happens to their bodies, as demonstrated by seminal cases like Roe v. Wade. That right is not and cannot be absolute, especially when individual choices have the potential to harm others. Choosing not to be vaccinated does not just affect the individual making that decision but the rest of society at large. For example, non-vaccinated individuals can still transmit an illness to a vaccinated individual, especially one with a weakened immune system. Additionally, opposition to vaccines has led to the resurfacing of deadly diseases such as measles, which was declared eradicated in 2002 by the World Health Organization, but in 2014 there were over 600 reported cases linked to a decrease in measles vaccinations by medical experts.

Although many are skeptical of the vaccine, over 20.7 million hopeful Americans have already received a COVID-19 vaccine, according to the CDC. Science has proven itself worthy of our trust, and if we allow it, we can win the battle against this unforgiving pandemic and reach herd immunity. Achieving herd immunity is about more than just getting people vaccinated; it’s about getting people back to normalcy and back to their lives. I hope to see you all on the other side.

Brooke Sheldon is a second-year law student at Suffolk University Law School interested in products liability and food and drug law. She graduated from the University of Connecticut in 2019 with a Bachelor of Arts in Communications.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.

Sources:

[1] See A. Powlowski, Will the COVID-19 Vaccine be Mandatory? What the Law Says, Today, (Sept. 3, 2020), https://www.today.com/health/will-covid-19-vaccine-be-mandatory-t190838.

[2] See Id.

[3] 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905).

https://hub.jhu.edu/2020/11/20/could-coronavirus-vaccines-become-mandatory/

https://www.today.com/health/will-covid-19-vaccine-be-mandatory-t190838

https://www.nfhs.org/articles/athletics-eligibility-and-medical-vaccinations/

https://supreme.justia.com/cases/federal/us/197/11/

https://www.healthline.com/health/vaccinations/opposition#results

https://www.cdc.gov/phlp/publications/topic/vaccinationlaws.html

https://www.muhealth.org/our-stories/covid-19-vaccine-key-reaching-herd-immunity

https://news.gallup.com/poll/325208/americans-willing-covid-vaccine.aspx