MOSHED-2021-10-9-13-11-31_edited.jpg

The Constitutionality of Vaccinate Mandates in the United States

Ishir Talapatra

On Thursday, President Biden unveiled a plan to vaccinate over two-thirds of the American workforce against COVID-19, mandating that all companies employing 100 or more people vaccinate its workers or subject them to regular testing. The plan, predictably, was met with outrage by Republicans, who have already threatened legal action. Whatever one’s opinion regarding the moral correctness of the president forcing private workers to get vaccinated (or be tested weekly), the constitutional reasoning behind the mandates is sound.

The main precedent for all vaccine mandates stems from a 1904 case argued before the Supreme Court, Jacobson v Massachusetts. A Cambridge, Massachusetts native by the name of Henning Jacobson had suffered a bad reaction to a vaccine as an infant. Jacobson sued the Cambridge board of health after it required all residents to be vaccinated against smallpox or pay a $5 fine ($153.37 in today’s money), claiming that the 14th amendment (“nor shall any State deprive any person of life, liberty, or property without due process of law”) protected him from getting vaccinated. The Court ruled 7-2 that Jacobson’s refusal to get vaccinated led to his neighbours being deprived of safety from smallpox. “Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy”, stated the justices in the majority. The justices weighed the notions of individual freedom with the idea of a common good, and ruled in favor of the latter.

The Court’s precedent in Jacobson was upheld in Zucht v King, a 1922 ruling stating unanimously that the city of San Antonio, Texas was within its rights to bar students not vaccinated against smallpox from attending public schools.

It is worth noting that the Court has shifted ideologically since then. The concept of “bodily integrity”, or the inability of the government to interfere in matters of our own bodies, has gained traction, especially among the liberals who simultaneously support vaccine mandates. Griswold v Connecticut struck down a Connecticut law forbidding the use of contraceptives among married couples. Roe v Wade is well known for legalizing abortion in the first trimester. And both Lawrence v Texas and Obergefell v Hodges allowed for same-sex relations, with the latter legalizing same-sex marriage as a whole.

This means that the legal grounds for President Biden’s actions are on sturdy, if not completely solid, ground. Jacobson gives a great deal of discretion to governments in matters of public health, but more recent rulings cast doubt over what today’s Court would decide. It is also interesting that both prior decisions were regarding the actions of local governments - will federal government action on such a scale fall under the same principle? Still, President Biden is largely within his rights to enact the rules he is proposing, and the public debate that follows will ultimately determine the fate of his vaccine mandate.