Not Breaking News: Mandatory Vaccination Has Been Constitutional for Over a Century

While there is a lot of sound and fury these days about mandatory vaccination against the COVID-19 virus, it should ultimately signify nothing. Mandatory vaccination is 100 percent constitutional and has been for over a century. In Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011), Justice Antonin Scalia stated that “the elimination of communicable diseases through vaccination became one of the greatest achievements of public health in the 20th century.” Id. at 226 (2011) (quotation marks and footnote omitted). Justice Breyer, concurring, agreed. “[R]outine vaccination is one of the most spectacularly effective public health initiatives this country has ever undertaken.” Id. at 245. Bruesewitz effectively eliminated product liability litigation involving vaccines.

The key mandatory vaccination case is Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). A town facing a smallpox outbreak exercised its state-delegated power and imposed a mandatory vaccination requirement. A vaccination opponent sued, “insist[ing] that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination” and “that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health.” Id. at 26. He lost, 7–2. Justice Harlan (the elder) held:

[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. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.

Id.

Rather, “persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state.” Id. (citation and quotation marks omitted). “Liberty” is “freedom from restraint under conditions essential to the equal enjoyment of the same right by others.” Id. at 27. “[T]hose who had no faith in vaccination as a mean of preventing the spread of smallpox . . . put in peril the health of the person vaccinated.” Id. at 36. In the United States, it is “a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for ‘the common good.’” Id. at 27. Vaccine resistance need not be tolerated when it allows disease to spread and imperil others.

Thus, mandatory vaccination in smallpox days, as now in COVID-19 times, is entirely constitutional. “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. Where a communicable disease is “prevalent” and, worse, “increasing,” “the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case.” Id. at 28. Given “the knowledge which, it is safe to affirm, is common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease,” mandatory vaccination was neither “arbitrary” nor “unreasonable.” Id.

If the mode adopted by the Commonwealth of Massachusetts for the protection of its local communities against smallpox proved to be distressing, inconvenient, or objectionable to some, . . . the answer is that it was the duty of the constituted authorities primarily to keep in view the welfare, comfort and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few. . . . [I]n every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

Id. at 27–28.

The same arguments we see today thus failed over a century ago in Jacobson. Persons who “attach little or no value to vaccination as a means of preventing” disease, or who claim “that vaccination causes other diseases,” must give way to the modern consensus. Vaccines work. “What everybody knows the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief, and is maintained by high medical authority.” Id. at 30. The judiciary should not overturn a vaccine mandate. “[T]he principle of vaccination as a means to prevent the spread of [disease] has been enforced in many states by statutes making the vaccination of children a condition of their right to enter or remain in public schools.” Id. at 31–32 (string citation omitted). What was “generally accepted” in 1905 is equally applicable today:

The common belief, however, is that [vaccination] has a decided tendency to prevent the spread of this fearful disease, and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession. It has been general . . . in most civilized nations for generations. It is generally accepted in theory and generally applied in practice, both by the voluntary action of the people and in obedience to the command of law.

Id. at 34–35.

“We are not prepared to hold that a minority, residing or remaining in any [place] where [an epidemic disease] is prevalent, and enjoying the general protection afforded by an organized local government, may thus defy the will of its constituted authorities.” Id. at 37.

As a result of the Supreme Court standing firm in Jacobson, mandatory vaccination has since entirely eradicated smallpox—so that smallpox vaccination is no longer necessary.

Jacobson remains the law, and mandatory vaccination violates no recognized constitutional rights. “Jacobson . . . settled that it is within the police power of a state to provide for compulsory vaccination.” Zucht v. King, 260 U.S. 174, 176 (1922) (Brandeis, J.). As recently as last year, Chief Justice Roberts stated in a concurrence:

Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” [citing Jacobson]. When those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude “must be especially broad. Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary”. . . .

South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613–14 (2020) (Roberts, C.J., concurring in denial of certiorari) (other citations and quotation marks omitted).

Nor are “compulsory vaccination laws” subject to “strict scrutiny” under “[t]he First Amendment’s protection of religious liberty.” Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 888–89 (1990).

[A parent] cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. 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.

Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944) (footnotes omitted).

To apply religiously based “strict scrutiny” to something like mandatory vaccination would also mean applying it to all sorts of other conduct, from polygamy, to peyote, to paying taxes. Employment Division, 494 U.S. at 879, 889 (collecting cases).

Currently, COVID-19-related mandatory vaccination requirements are being upheld under Jacobson and its progeny. In Klaassen v. Trustees of Indiana University, 7 F.4th 592 (7th Cir. 2021), students failed to enjoin a state university’s mandatory vaccination requirement. Klaassen found the COVID requirement “easier than Jacobson for the University” because Jacobson “lacked exceptions” and “require[d] every adult member of the public to be vaccinated.” Id. at 593. Persons not wishing to be vaccinated may be educated elsewhere:

Each university may decide what is necessary to keep other students safe in a congregate setting. Health exams and vaccinations against other diseases . . . are common requirements of higher education. Vaccination protects not only the vaccinated persons but also those who come in contact with them, and at a university close contact is inevitable.

Id.

Because the eduction process can require students to “read things they prefer not to read and write things they prefer not to write,” id., a fortiori a university can mandate vaccination. “A university will have trouble operating when each student fears that everyone else may be spreading disease.” Id. at 594.

Similarly, Children’s Health Defense, Inc. v. Rutgers, the State University of New Jersey, 2021 WL 4398743 (D.N.J. Sept. 27, 2021), refused to enjoin a university’s mandatory vaccination program. Doing so would harm the public. “[I]t would place the health and safety of others inside and out of [the university] community at risk.” Id. at *7. No “absolute” right to “refuse unwanted medical treatment” exists. Id. “[I]t is for the legislature not the Courts to determine what modes of protection would likely be effective against [COVID-19].” Id.

Other cases affirming COVID-19-related vaccination mandates in the educational context are Maniscalco v. New York City Department of Education, 2021 WL 4344267, at *3 (E.D.N.Y. Sept. 23, 2021) (public school teacher mandatory vaccination “represents a rational policy decision surrounding how best to protect children during a global pandemic”), injunction pending appeal denied, 2021 WL 4397857 (2d Cir. Sept. 24, 2021); Harris v. University of Massachusetts, Lowell, 2021 WL 3848012, at *7 (D. Mass. Aug. 27, 2021) (a state university “is under no constitutional obligation to offer a religious exemption to its Vaccine Requirement”); Norris v. Stanley, 2021 WL 3891615, at *1 (W.D. Mich. Aug. 31, 2021) (mandatory vaccination is a “state’s valid exercise of its police power to protect the health and safety of its citizens”); America’s Frontline Doctors v. Wilcox, 2021 U.S. Dist. Lexis 144477, at *17 (C.D. Cal. July 30, 2021) (“there is clearly a rational basis for [a state university] to institute the Policy requiring vaccination, including for individuals who previously had COVID-19”).

Other governmental COVID-19 vaccination mandates have also been confirmed as constitutional. In Valdez v. Grisham, 2021 WL 4145746 (D.N.M. Sept. 13, 2021), state employees and attendees at state fairs were required to be vaccinated. Neither a “right to work in a hospital [n]or attend the State Fair, unvaccinated and during a pandemic, is ‘deeply rooted in this Nation’s history and tradition.’” Id. at *5 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).

The governmental purpose of stemming the spread of COVID-19 . . . is not only legitimate, but is unquestionably a compelling interest. . . . Following the research, recommendations, and guidance of several medical and scientific sources . . . Defendants have determined that the three vaccines—which are extremely safe and, even against the Delta variant, highly effective—are the best tool we have to protect individuals and protect communities from COVID-19.

Id. at *7 (citations and quotation marks omitted). See In re City of Newark, 2021 WL 4398457, at *4 (N.J. Super. Ct. App. Div. Sept. 27, 2021) (public employee vaccination mandate upheld; “When a public health emergency exists, governmental entities, including local authorities, have a recognized right to require vaccinations.”).

Private COVID-19 vaccine mandates have also been upheld under Jacobson, starting with Bridges v. Houston Methodist Hospital, 2021 WL 2399994 (S.D. Tex. June 12, 2021), holding that a private healthcare provider could fire employees who refuse to be vaccinated:

[Plaintiff] is refusing to accept inoculation that, in the hospital’s judgment, will make it safer for their workers and the patients in [their] care. . . . [T]he injection requirement is consistent with public policy. The Supreme Court has held that (a) involuntary quarantine for contagious diseases and (b) state-imposed requirements of mandatory vaccination do not violate due process.

Id. at *1. See Harsman v. Cincinnati Children’s Hosp. Med. Ctr., 2021 WL 4504245, at *3 (S.D. Ohio Sept. 30, 2021) (“the overwhelming majority of courts to consider vaccine mandates have found them constitutionally sound”); Beckerich v. St. Elizabeth Med. Ctr., 2021 WL 4398027, at *9 (E.D. Ky. Sept. 24, 2021) (“If an employee believes his or her individual liberties are more important than legally permissible conditions on his or her employment, that employee can and should choose to exercise another individual liberty, no less significant—the right to seek other employment.”); Hencey v. United Airlines, Inc., 2021 WL 3634630 (S.D. Fla. Aug. 17, 2021). Cf. Norwegian Cruise Line Holdings, Ltd. v. Rivkees, 2021 WL 3471585, at *14 (S.D. Fla. Aug. 8, 2021) (holding that the state could not preclude private vaccine mandates; “the unvaccinated population is not a protected class that enjoys a fundamental Constitutional right to remain unvaccinated”)

Abundant pre-COVID-19 precedent likewise holds that the argument “that [a state] mandatory vaccination requirement violates substantive due process . . . is foreclosed by” Jacobson. Phillips v. City of New York, 775 F.3d 538, 542 (2d Cir. 2015). A state may “protect the health and safety of public school children through extensive vaccinations.”

The endgame is widespread vaccination, which is necessary, indeed essential, to promote adequate immunity. The importance of extensive vaccination should not be understated—the efficacy of vaccination relies on the theory of “herd immunity.” In essence, once a critical mass of the population is immune to a particular disease, the chance that unvaccinated individuals contract that disease drastically decreases.

Nikolao v. Lyon, 875 F.3d 310, 318 (6th Cir. 2017) (citations omitted).

“We are hard-pressed to envision a more secular purpose than” “protect[ing] children from serious and avoidable diseases.” Id. See Caviezel v. Great Neck Pub. Schs., 500 F. App’x 16, 19 (2d Cir. 2012) (“substantive due process challenge to [state] immunization requirement is defeated by Jacobson”); Workman v. Mingo Cty. Bd. of Educ., 419 F. App’x 348, 356 (4th Cir. 2011) (“that a state may constitutionally require school children to be immunized . . . is not surprising given the compelling interest of society in fighting the spread of contagious diseases through mandatory inoculation programs” (citations and quotation marks omitted)).

State appellate courts also reach the same result. “[C]ompelling vaccination is constitutional.” People v. Ekerold, 105 N.E. 670, 672 (N.Y. 1914). “There is little question that a state may adopt a program of compulsory immunization for school-age children.” Davis v. State, 451 A.2d 107, 111 (Md. 1982) (citations omitted). “[W]e consider the Federal question to be definitely settled in favor of the validity of the requirement of compulsory vaccination.” Seubold v. Fort Smith Special Sch. Dist., 237 S.W.2d 884, 888 (Ark. 1951).

[T]he statute in question, requiring immunization against certain crippling and deadly diseases particularly dangerous to children before they may be admitted to school, serves an overriding and compelling public interest, and . . . such interest extends to the exclusion of a child until such immunization has been effected, not only as a protection of that child but as a protection of the large number of other children comprising the school community.

Brown v. Stone, 378 So. 2d 218, 222 (Miss. 1979).

“It is well established that laws mandating vaccination of school-aged children promote a compelling governmental interest of ensuring health and safety by preventing the spread of contagious diseases.” Love v. State Dep’t of Educ., 240 Cal. Rptr. 3d 861, 868 (Cal. Ct. App. 2018). “[C]ompulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases.” Id. at 870. Accord Brown v. Smith, 235 Cal. Rptr. 3d 218, 226 (Cal. Ct. App. 2018) (finding “a compelling interest in fighting the spread of contagious diseases through mandatory vaccination . . . regardless of the circumstances of the day” (citations and quotation marks omitted)). A Georgia appellate court in the early 1950s cogently analyzed public interest in vaccination:

The ill effects of contagious disease, and its power to wipe out entire populations, is a matter of history. Many of these scourges of the past have been completely dissipated by the preventive methods of medical science. The purpose of the legislature in passing the [mandatory vaccination] statute . . . was to prevent the spread of these diseases, not only for the protection of those actually immunized but for the protection of others with whom they might come in contact. The refusal of the defendants here to have their children vaccinated amounted to a transgression of the rights of others. . . . Liberty of conscience is one thing. License to endanger the lives of others by practices contrary to statutes passed for the public safety and in reliance upon modern medical knowledge is another.

Anderson v. State, 65 S.E.2d 848, 851–52 (Ga. Ct. App. 1951) (citation omitted). Many other state courts have reached similar results, going back to the days of Jacobson and even before. These are collected here (subscription required).

Federal district courts concur that

[i]n this country there is a long history of disagreements—scientific and otherwise—regarding vaccinations . . . , and courts have repeatedly found that it is for the legislature . . . to choose between opposing theories within medical and scientific communities in determining the most effective way in which to meet and suppress public health threats.

Doe v. Zucker, 520 F. Supp. 3d 217, 251 (N.D.N.Y. 2021) (citations omitted).

New York State luckily eliminated its much-abused religious exemption to mandatory vaccination just in time:

[T]he purpose of quelling the outbreak by encouraging county-wide vaccination, [is] a measure permitted in a variety of constitutional contexts by Jacobson and its progeny. For that reason, too, the complained-of restrictions are distinguishable from those in [cases] which had nothing to do with vaccination. Indeed, to the extent that Plaintiffs argue the Declaration was unconstitutional because it conditioned their children’s rights to attend school on becoming vaccinated, that contention is foreclosed by well-established precedent holding that mandatory vaccination laws are consistent with the Constitution. . . .

W.D. v. Rockland County, 521 F. Supp. 3d 358, 404–5 (S.D.N.Y. 2021) (citations omitted). See Doe v. Zucker, 496 F. Supp. 3d 744, 759 (N.D.N.Y. 2020) (“the public health concerns in maintaining high immunization rates for vaccine-preventable diseases and in avoiding outbreaks of communicable diseases provide ample basis for the newly enacted regulations”); V.D. v. State of New York, 403 F. Supp. 3d 76, 87 (S.D.N.Y. 2019) (“[c]onditioning school enrollment on vaccination has long been accepted by courts as a permissible way for States to inoculate large numbers of young people and prevent the spread of contagious diseases”).

Nor is recent (post-2000) precedent from the federal district courts upholding mandatory vaccination limited to New York. See W.B. v. Crossroads Acad.-Central St., 2019 WL 6257963, at *1 (W.D. Mo. Nov. 22, 2019) (“The most current State and Federal decisions also uniformly support vaccination requirements, including governmental advocacy of vaccinations, despite various scientific, religious, family autonomy and general libertarian objections by parents.”); Whitlow v. California, 203 F. Supp. 3d 1079, 1083 (S.D. Cal. 2016) (“For more than 100 years, the United States Supreme Court has upheld the right of the States to enact and enforce laws requiring citizens to be vaccinated.”); Middleton v. Pan, 2016 WL 11518596, at *6–8 (C.D. Cal. Dec. 15, 2016) (rejecting a variety of constitutional attacks on mandatory vaccination), adopted, 2017 WL 10543984 (C.D. Cal. July 13, 2017); Schenker v. County of Tuscarawas, 2012 WL 4061223, at *12 (N.D. Ohio Sept. 14, 2012) (“It has long been recognized that local authorities may constitutionally mandate vaccinations.”); Scott v. Goodwin, 2010 WL 2926222, at *6 (W.D. La. June 29, 2010) (“Vaccinations are a legitimate and neutral method to prevent the spread of a contagious and/or dangerous disease in the [prison] inmate population.”), adopted, 2010 WL 2926233 (W.D. La. July 21, 2010); Boone v. Boozman, 217 F. Supp. 2d 938, 954 (E.D. Ark. 2002) (“it cannot be questioned that compulsory immunization is a permissible exercise of the State’s police power”). Cf. United States v. Schwartz, 61 M.J. 567, 570 (Navy-Marine Ct. Crim. App. 2005) (“There can be little doubt that the vaccination of service members has a valid military purpose.”), aff’d, 64 M.J. 199 (C.A.A.F.2006).

This nation has the vaccine technology to prevent COVID-19 from becoming the next plague or influenza, recurring year after year. But voluntary efforts to preserve the public health can take us only so far. For well over a century, science deniers of various stripes have tried, but failed, to stop mandatory vaccination.