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.
Read the full article at The Wall Street Journal.