Damned If We Don’t and… Also Damned If We Don’t: A Look into the History of Vaccine Mandates and the Future of the COVID-19 Vaccine
Vaccine mandates are not a new concept. The first ever vaccine requirement was in 1905, Jacobson v. Massachusetts, where the Supreme Court held that states had the authority under the Constitution to enforce a vaccine mandate.[1]In the late 1960s during the measles outbreaks, various states began to enforce vaccine mandates for children to attend school.[2] By 1980, all 50 states had laws requiring students to be vaccinated before they would be allowed into school.[3] These efforts effectively eliminated measles and polio.[4]
An important point to note is that the federal government cannot pass a nationwide vaccine mandate due to their powers being limited by those granted to them through the U.S. Constitution.[5] Since the Constitution does not give the federal government power to require vaccinations, or even to protect public health, the burden falls almost entirely on state governments.[6]
Despite states’ efforts to enforce vaccination, there are some people that are granted exemptions for religious, philosophic, or medical reasons.[7] However, these groups were prone to outbreaks due to unvaccinated individuals being 35 times more likely to contract the illness.[8] This data begs the question of why nonmedical exemptions are allowed in the first place. One might initially think of the free exercise provision under the First Amendment of the U.S. Constitution.[9] This provision gives an individual the right to practice their religion without government interference.[10] However, in Employment Div., Dep’t of Hum. Res. of Or. v. Smith the Supreme Court established that the First Amendment’s free exercise provision does not provide an exemption from valid state laws such as mandatory vaccination.[11] Thus, it became a question of if religious exemptions allowed by states were constitutional.[12] In response, a three-pronged test was established to ensure a state’s religious exemptions complied with the First Amendment: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’”[13] This test was used in Sherr v. Northport-East Northport Union Free School District when the plaintiffs were denied a religious exemption because they were not active members of said religion.[14] It was found that “sincerely held religious principles” in opposition to vaccination were enough to allow for an exemption, and that people did not have to prove their membership in a recognized religion.[15] Thus, we are left at an impasse of states being allowed to grant exemptions and the federal government being unable to enact nationwide mandates.
The recent COVID-19 pandemic has rekindled the debate surrounding vaccine mandates. One important difference between COVID vaccines and previous ones is that the COVID vaccine was being distributed before full FDA approval.[16] Due to the virulence and mortality rate of the virus, vaccines were given emergency use authorization (EUA) and distributed during phase three clinical trials.[17] This means that the pre-determined rate of success for phase three trials, which involve randomized vaccine distribution to thousands of people, was met.[18] Because the vaccines were being used under EUA, many people were hesitant to get vaccinated and some employers were unsure about requiring vaccinations for employees.[19] Unfortunately, there was little legal precedent to guide them save for a single case in Texas where a judge dismissed an argument by employees saying they could not be forced to receive a vaccine that was not yet fully approved.[20]
However, the Pfizer vaccine, now named Comirnaty, has since gained full FDA approval, making this point moot.[21] Since its approval, more and more private companies have required employees to get vaccinated unless they have a valid exemption, and many universities have done the same.[22] While the states can enact vaccine requirements for their citizens, some have passed bills for the opposite — preventing employers from requiring employees to be vaccinated.[23]
The other difference between Comirnaty and other vaccines, which also presents issues with enforcement of vaccine mandates, is that it has only been approved for people twelve years and up.[24] Most vaccines are administered to people when they are children to fulfill the vaccine requirements that schools have.[25] Since kids are required to attend school, enforcing vaccine requirements is quite easy and allows the government to keep track of who is vaccinated and not.[26] Unfortunately, there are not many points of nexus between adults and the government, so keeping track of who has gotten vaccinated and ensuring everyone actually is vaccinated presents many challenges.[27] One possible solution may be to require it when people file their taxes or when they apply for government issued forms of identification such as a passport or driver’s license. Although this then presents an issue with accessibility: what if someone does not have insurance to pay for a vaccine and cannot afford it out-of-pocket?[28] In order for governments to mandate vaccines, they must make them freely available to people.
In short, the federal government does not currently have the power to enforce vaccine mandates nationwide due to its power being limited by the U.S. Constitution. This leaves it up to state governments to find ways to enforce vaccine mandates, but also presents a problem with how to keep track of who has received one and who has not. The current COVID-19 pandemic has forced the state and federal governments to reassess vaccine mandates and vaccine distribution. It was a wakeup call that lit a fire under not only scientists worldwide but also legislators. With vaccines available, and one even being fully approved by the FDA, it is up to everybody who can get the vaccine to do so. After all, it will not be mandates that bring an end to the pandemic, but us.
Footnotes
