We Don’t Need Government Mandates for Covid Vaccination This isn’t smallpox and doesn’t require draconian measures that infringe on basic civil liberties. By Joel M. Zinberg
Covid-19 vaccines are almost here. Pfizer announced Monday that its vaccine has proved more than 90% effective in clinical trials. But vaccines are useless unless people take them, and it’s likely many will refuse.
The drumbeat is growing louder for the government to mandate vaccination. On Saturday the New York State Bar Association urged Albany to require Covid-19 vaccines for all New Yorkers regardless of religious objection. While courts have upheld state vaccine mandates in the past, a societywide mandate would be overbroad and unduly coercive. Private initiatives will work better.
Only 45% of American adults get vaccinated for influenza annually. Concerns about side effects and doubts about effectiveness are the two main reasons people skip the vaccine, according to the University of Chicago’s NORC Center for Public Affairs Research. In a NORC survey conducted at the height of the pandemic in May, Americans expressed similar concerns about a prospective Covid-19 vaccine. While a majority claimed they would likely be vaccinated, far fewer were a definite yes. Less than half said they would definitely be vaccinated, and doubts about safety and effectiveness were common.
The Biden campaign and others have alleged that vaccine makers and the Food and Drug Administration are moving too fast toward approval—claims the FDA and drug companies vehemently deny—further eroding public trust in an eventual vaccine. A Pew Research Center poll found that the number of Americans who would definitely or probably be vaccinated fell to 51% in September from 72% in May.
All 50 states have statutory mandates for vaccination against specific childhood diseases, and all but two allow religious exemptions. While about half of states have influenza vaccination rules for health-care and long-term care facilities, including assessing vaccination status and offering free vaccines, only a minority of these mandate that facilities ensure their staffs and patients are vaccinated. All allow religious exemptions.
Multiple courts have upheld these requirements and other public-health measures as a legitimate exercise of states’ police powers to protect public health and safety. Nearly every case relies on the Supreme Court decision Jacobson v. Massachusetts (1905), which upheld a smallpox-vaccination mandate against a due-process challenge. While Jacobson cautioned that courts could interfere against “arbitrary and oppressive” actions that “might go so far beyond what was reasonably required for the safety of the public,” the case is routinely cited to validate public-health actions that infringe on constitutional rights.
Indiscriminate reliance on Jacobson continues despite subsequent Supreme Court cases recognizing fundamental liberty interests in marriage and procreation, and liberty interests in bodily integrity and personal autonomy that support the right to refuse medical treatments. As the Fifth U.S. Circuit Court of Appeals recently opined in In re Abbott, upholding state Covid-19 surgery moratoriums that include procedural abortions, “Jacobson instructs that all constitutional rights”—the emphasis is in the original—“may be reasonably restricted to combat a public health emergency.”
But Jacobson isn’t an apt guide for Covid-19. It dealt with a populationwide mandate during a smallpox epidemic. Smallpox was eradicated in 1980, but it was a recurrent scourge in 1905. It killed 3 out of 10 of those infected. Those who survived were usually left scarred, sometimes blind. It spread easily and affected all ages. Smallpox warranted a vigorous state response, even one that encroached on individual liberties.
Covid-19 is more like influenza than smallpox. It kills 0.2% to 0.6% of those infected. Its severest effects are on populations that are smaller and more discrete than those at risk from either smallpox or influenza. The elderly and people with comorbidities account for most Covid-19 deaths and hospitalizations. Old age and comorbidities converge in residents of long-term care facilities, who account for 45% of Covid-19 deaths. Covid-19 merits a more targeted, less coercive response than smallpox.
Private industry will do better than 50 state governments in crafting narrow mandates. Private entities have financial and reputational incentives to protect their employees, patrons and residents, and are therefore well-positioned to determine what protective measures, including vaccination, need to be taken in specific circumstances. Vaccinated employees are less likely to become ill or infect their co-workers, thus reducing absenteeism. A vaccinated workforce will incur lower health-care costs, which could ultimately reduce premiums for employer-provided health insurance. A vaccine-protected enterprise will have a competitive advantage in attracting safety-conscious customers and employees. Finally, requiring vaccination could limit tort liability for failing to protect customers and other workers from infection and satisfy government requirements to keep workplaces safe.
Even before Covid-19, health-care facilities, including those providing long-term care, were increasingly requiring employees and residents to be vaccinated against vaccine-preventable diseases. Private mandates don’t violate statutory and constitutional constraints as long as reasonable accommodations are made for those with medical conditions that make vaccination risky and those with genuine religious objections.
Failing to ensure that Covid-19 vaccines are used would unnecessarily prolong the pandemic. Private initiatives creating narrow mandates that target those most likely to benefit from vaccines, alongside voluntary vaccination, will maximize public health while minimizing the threat to individual liberties.
Dr. Zinberg is a senior fellow at the Competitive Enterprise Institute and an associate clinical professor of surgery at the Mount Sinai Icahn School of Medicine in New York. He served as senior economist and general counsel at the White House Council of Economic Advisers, 2017-19.
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