Fingers crossed, many of us scan the news every day for word that the COVID-19 vaccine may become a reality in the not-too-distant future.
In fact, scientists all over the world are working at warp speed to do just that. But once vaccines are available, another obstacle may remain before we can put an end to the epidemic: enough people must be vaccinated.
While an effective vaccine may protect those who are vaccinated, surveys reveal this One third of the population They say they do not want to be vaccinated. If this is true, it may mean that we will not achieve “herd immunity” and stop the virus.
So the question that arises: Can the government order vaccination?
Some law professors and legal analysts have been pondering this question, and the answer doesn’t seem entirely clear.
What is being It is clear, as they agree, that states have the ability to request vaccinations. What is unclear is whether the federal government could take such a step.
Vaccination authorities in countries
Since 1905 the US Supreme Court case Jacobson v. MassachusettsThe right of states to request vaccinations (if they choose) is the law of a country. In this case, the justices ruled that Massachusetts law requiring smallpox vaccination for adults is constitutional.
Courts continued to support Jacobson, and states continued to request vaccinations when they deemed fit. Although the exemption rules differ, All 50 states have laws requiring school children to be vaccinated.
Governments sometimes rely on these authorities to request widespread vaccinations when the disease appears and spreads. In 2019, for example, the resurgence of measles prompted the New York City Health Commissioner to demand that all schoolchildren in the city be vaccinated against measles. Penalty for Refusal: $ 1,000.
Since countries have strong vaccination powers, are they the way to widespread vaccination and herd immunity?
Debbie Kaminer, a law professor at Baruch College, recently wrote: “In the United States today, where even mask mandates are controversial, it is unlikely that many states will enact a mandatory vaccination policy for all.” Conversation, A non-profit academic site. “Additionally, there is a risk that harsh public health methods could backfire and escalate tensions, increase mistrust of government and unintentionally increase the influence of the anti-vaccination movement.”
What about the Federalists?
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In May, the New York State Bar Association Health Law Division’s task force on COVID-19 called Vaccination is mandatory for all Americans When a vaccine is available.
However, the authors of a July 23 opinion piece also wrote The hill We point out that the vaccination required at the national level faces huge obstacles. Dorit Rubinstein-Reyes, a professor at the University of California, Hastings College of Law, and W. Tony Yang, a professor at George Washington University’s School of Nursing, assert that “Congress may not have the legal authority to impose vaccinations.”
They point out that Congress has broad powers to regulate interstate commerce, but “(a) the federal vaccine mandate would likely be unconstitutional under the trade clause because it would only regulate non-economic activity.”
So, if blanket mandates by the states and the federal government are unrealistic, then what?
Legal experts say the best bet is to find a compromise. One technique, they say, could be a penalty system for those who refuse to be vaccinated.
There may be a strong precedent for this kind of approach in the 2012 Supreme Court ruling upholding the individual mandate of the Affordable Care Act. Since then, Americans can opt out of health insurance if they are willing to pay a fine at tax time. By this logic, the same could be true for some time with COVID-19 vaccines.
The feds could also use a carrot and stick approach with states and withdraw funding if states fail to get vaccinations.
“In either case, this does not mean that an individual can be vaccinated against their will if they are willing to bear the consequences of not doing so,” said attorney Stephen Wilker. Newsweek. Another approach could be legislation that would indirectly induce people to get vaccinated by having to require proof of vaccination in order to travel in an airplane, obtain a passport, or use public transportation.
Rees and Yang, the authors of The Hill article, argue that the best approach may be a more collaborative one in which the federal government “encourages” states to increase vaccination rates and by engaging state and local health officials in the effort.
It can be difficult to convince a large number of the US population, the “anti-vaccinators”. But they aren’t all skeptics of COVID-19 vaccines. Some do not trust the vaccine the Trump administration will promote. Others prefer to wait and see how the first vaccinations will turn out.
Going back to the original question of whether the government can order you to get the COVID-19 vaccine, the level of suspicion and outright opposition seems to indicate that forced vaccination will be difficult for the government. Yes, the government has the power to get you to do that. But they are likely to do so in subtle ways.