There are presently over 200 COVID-19 vaccines being tested on human beings. None are approved at this time, but several pharmaceuticals have reported very promising results from their candidates. At the same time as this remarkable success, America has encountered a resistance to taking any vaccine. Recent polls indicate that almost 40 percent of the country have concern about a vaccine.
When the Polio vaccine was circulated in 1955, there was significant opposition. In fact, it wasn’t until Elvis Presley had the shot that the public consented.
If 40 percent of the population refuses to be vaccinated, can government insist on their vaccination? The short answer is yes. In Jacobson v Massachusetts, 197 US 11 (1905), the Supreme Court upheld compulsory small pox vaccination. The Court stated, “The liberty secured by the Constitution of the United States doesn’t import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.” 197 US 12.
Jacobson has been the subject of some pushback. As noted in “Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending Judicial Review” (Wiley and Vladeck) Harv. L. Rev. F. 179 (July 13, 2020), local and state orders designated to help “flatten the curve” of the novel coronavirus infections have provoked a series of constitutional objections – and a growing number of lawsuits attempting to have those orders modified or overturned. Should constitutional constraints on government action be suspended in times of emergency (because emergencies are “extra constitutional”), or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances?
As I see it, what good is a vaccine if people refuse to take it? The vaccination should be mandatory. Mahalo to Robert Thomas, Esq. for his assistance in this blog.
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