A new Competitive Enterprise Institute report I authored examines what can be done to encourage vaccine use, the likelihood that voluntary consent will be adequate, the legal constraints on mandatory vaccination programs, and if and how such a program could be targeted in a way that maximizes public health while respecting individual rights, including religious objections.
When the first vaccines are approved and supplies are limited, vaccination efforts should be targeted toward those who are most vulnerable and toward those who are most likely to transmit the disease to them, with later voluntary uptake encouraged for others.
The people at highest risk for COVID-19 complications and death are the elderly, persons with co-morbid medical conditions, and minority groups. Old age and co-morbidities converge in residents of long-term care facilities like nursing homes and residential care communities where rapid and easy transmission of disease has been documented. It is no accident that nearly half of COVID-19 deaths are in long-term care facility residents. Protecting these readily identifiable, susceptible populations will go a long way toward ending the pandemic and may even render mass vaccination of other less vulnerable groups unnecessary.
Consent is always preferable to coercion. No-cost vaccines and other incentives should be provided to encourage voluntary vaccination. But evidence from vaccination for other diseases and recent public opinion surveys suggest that many will refuse to be vaccinated for COVID-19. If people will not voluntarily consent to vaccination what can be done to ensure that a vaccine is utilized?
Many states already have statutes mandating vaccination against specific diseases in various settings. They vary considerably from state to state and include statutes requiring vaccination against childhood diseases for school age children and requirements for hospitals and long-term care facilities to assess the influenza vaccination status of their staff and patients, offer them vaccines, or even require that they be vaccinated.
Vaccination requirements, as well as a variety of other public health mandates, have been upheld under the 1905 Supreme Court decision, Jacobson v. Massachusetts, that upheld a smallpox vaccination mandate during a smallpox epidemic as an exercise of the state’s police powers. Since then, the case has been repeatedly cited to give states broad authority to implement measures that infringe on constitutional rights when faced with a public health emergency. Yet, Jacobson recognized that while states’ police powers in health matters are extensive, they are not unlimited.
Since COVID-19 is a new disease, no statutes, orders, or regulations exist yet yet mandating vaccination for it. Private entities have financial and reputational incentives to protect their employees and patrons and are therefore well positioned to determine what protective measures, including vaccination, need to be taken. Even before COVID-19, private employers, especially in health care, were requiring their employees to be vaccinated against infectious diseases.
Private mandates that personnel at medical and long-term care facilities should receive COVID-19 vaccination as a condition of their employment in order to protect patients and residents from transmission would be allowed within constitutional and statutory limitations – exemptions for medical reasons or genuine religious objections should be included and accommodations for persons who object to vaccination should be provided if it is possible to do without undue burden on employers or compromising the safety of those around them. Private mandates to vaccinate the residents of long-term care facilities, who are both overwhelmingly elderly and sick, should also be considered.
Failing to ensure that a COVID-19 vaccine is utilized would unnecessarily prolong the economic and social upheaval the pandemic has caused. Identifying those who will benefit most from the vaccine, encouraging voluntary vaccination, and, if necessary, with the aid of the private sector, crafting a mandatory vaccination program that respects individual rights and religious beliefs are urgent priorities.