If a vaccine is ever developed for COVID-19, it looks like we are going to have one hell of a fight in this country over whether the inoculation should be made mandatory.
A New York State Bar Committee just issued a report recommending that the influential legal organization endorse passing laws forcing everyone in the country — unless medically inappropriate — to receive the vaccine regardless of their own desires. From the Law.com story:
Citing a robust collection of federal and state case law, a New York State Bar Association task-force group on Thursday said it should be mandatory for all Americans to have a COVID-19 vaccination, when one is available, including those who won’t want it for “religious, philosophical or personal reasons.”
. . . Making a legally backed argument on pages 60-63 of a newly released report on the “unique” legal and ethical issues brought forward by the global pandemic, the Health Law Section of the bar association writes that “some Americans may push back on the COVID-19 vaccination for religious, philosophical or personal reasons,” but “for the sake of public health, mandatory vaccinations for COVID-19 should be required in the United States as soon as it is available.”
“Mandatory vaccinations are supported by the authority of the state police power when the vaccinations are necessary to protect the health of the community,” the group writes in the report, while citing the 1905 U.S. Supreme Court decision in Jacobson v. Massachusetts.
I wish I could report that the committee’s opinion was a fringe idea. President Trump wants any vaccine to be voluntary. But mandating the vaccine seems to be gaining significant establishment traction.
Alan Dershowitz also supports such an authoritarian move, on the basis of Jacobson. (The case is not nearly as sweeping as some suggest, involving the city of Cambridge and smallpox — which had a 30 percent mortality rate for adults and 80 percent for children!)
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Joe Biden’s chief health-care adviser — and potential secretary of health and human services — has not taken a position on this issue of which I am aware. But it is easy to predict his likely take. He has opined that all children should be required by law to receive a flu shot every year (also citing Jacobson) and that everyone should be forced now to wear a mask. Other notable bioethicists have similarly argued that we should be forced to use a contact-tracing phone app and receive a COVID jab.
This idea seems unprecedented. There is no law requiring all adults to be vaccinated against any disease. And even a health emergency does not just allow the government to enact any law it wants. Laws have to be reasonable. I think that courts would be loath to force 330 million people to be vaccinated when we know that those at most risk are the frail elderly and those with comorbidities, people we can protect with proper distancing and hygiene practices, not to mention the vaccine if one is developed.
Moreover, is it reasonable to force everyone in Montana or South Dakota — where the damage from the illness has been low — to receive a vaccination because New York and New Jersey suffered a catastrophe (in part, because their governors forced nursing homes to accept infected patients)? I doubt the people in those states would think so.
Technocrats sure do love their mandates. If the vaccine comes, I have little doubt that powerful forces will work very hard to make it mandatory, creating another issue perfectly positioned to tear us apart.
Note: Wesley J. Smith, J.D., is a special consultant to the Center for Bioethics and Culture and a bioethics attorney who blogs at Human Exeptionalism.