Since the onset of the Covid-19 pandemic, one of the more common questions about vaccines is whether the government can make them mandatory. Most of the hesitancy to be vaccinated concerns safety of the various available vaccines. The vaccines currently being used have not gone through the years of testing that other vaccines, such as the vaccine for shingles, have been subjected to. However, Covid-19 vaccines have completed trials and been approved for emergency use due to the severity of the pandemic. The short test phase has caused some hesitancy about the vaccine's safety by both skeptics and the general public alike. Even if you are skeptical of the safety or effectiveness of vaccines, you may find yourself in a position where you must get vaccinated due to a workplace or community requirement. Most recently, cruise lines are requiring proof of vaccinations to travel.

A vaccine was first used successfully in 1796 to combat smallpox, which plagued the world for over 1000 years. Like today, fear was prevalent about the vaccine. People worried that it might give them smallpox or otherwise damage their health.  Their concerns are much like those we have today, although perhaps with fewer conspiracy theories spread by social media.

The legal answer to the question of whether or not vaccines can be mandated goes back to the early 1900s. Some cities banned entry to those without proof of smallpox vaccination because some towns suffered outbreaks despite the fact that the vaccine was available. One such city was Cambridge, Massachusetts. Cambridge was facing an outbreak of smallpox in 1902. A local pastor, Henning Jacobson, and his family refused to be vaccinated, claiming that it infringed on his liberty. In 1905, the case made it to the United States Supreme Court. In Jacobson v. Massachusetts,197 U.S. 11 (1905), the court ruled that a mandate of the smallpox vaccine did not violate the 14th Amendment Due Process Clause or unduly inhibit Jacboson’s liberty. 

Jacobson v. Massachusetts has been the cornerstone from which the courts have built the law relating to mandating vaccinations. Most notable is its use to uphold vaccination requirements for attending public schools. See, Phillips v. City of New York, 775 F.3d (2015).

People have also opposed getting vaccines on religious grounds. There are still significant barriers to overcome when using this reason to refuse the Covid-19 vaccine.  In Prince v. Massachusettsd, 321 U.S. 158 (1944), the Supreme Court stated that "the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death."
The United States was founded on the principle of liberty. However, no rights are absolute, even in a free society. “[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Jacobson v. Massacusettes, 197 U.S. at 26. What this means to you is that if a government entity such as a school, city, or the FAA (Federal Aviation Administration), requires the vaccine, your ability to abstain on the basis of a constitutional right to liberty will be extremely difficult. 

--William Bianco, Bianco Stroh, LLC