The welcome news that two companies, Pfizer and Moderna, have apparently created safe and effective vaccines against COVID-19 raises immediate questions about distribution. Given initially limited supplies, which vulnerable populations—such as health-care workers, other essential workers, the elderly, prisoners, and those with underlying health conditions—should be given priority? And how will federal, state, and local governments coordinate the daunting logistical challenges of transporting vaccines that must be stored at extremely low temperatures?
Yet if the short-term issue is how to ration the vaccines, in a few months we may face its mirror image: how to persuade the vast majority of Americans to get vaccinated? Although over 90 percent of American children are vaccinated against polio, measles, and chickenpox, survey data released last week revealed that only 58 percent of adults express willingness to receive a COVID-19 vaccine. While that number is higher than it was in September, it may not be high enough to provide the sort of herd immunity needed to protect those people with medical conditions that make vaccination especially risky or to enable a return to pre-pandemic lifestyles more broadly.
No doubt the first line of attack in seeking to boost vaccination rates should aim at overcoming skepticism. A transparent vaccine approval process and depoliticization of the issue could go a long way towards limiting resistance to a fringe group of hardcore anti-vaxxers.
What if that process fails? Could government mandate vaccination for people who lack valid medical reasons why a generally safe and effective vaccine would pose an unacceptably high health risk for them?
A 1905 Supreme Court opinion—Jacobson v. Massachusetts—says yes. Yet, as Federal District Judge William Stickman observed in a Pennsylvania case in September of this year, although “Jacobson has been cited by some modern courts as ongoing support for a broad, hands-off deference to state authorities in matters of health and safety, other courts and commentators have questioned whether it remains instructive in light of the intervening jurisprudential development.” One jurisprudential development is the line of cases that includes abortion rights. After briefly addressing issues of federalism and religious objections to vaccination, I shall ask whether mandatory vaccination might be inconsistent with a right to abortion.
Federalism and Religion
No federal statute either requires mandatory vaccination or delegates to any executive branch agency or official the power to adopt such a mandate by regulation. Could Congress impose a nationwide vaccination mandate? Probably not. In a 2012 case, five Justices said that the obligation to purchase health insurance in the Patient Protection and Affordable Care Act (Obamacare) was not within the power of Congress to regulate interstate commerce because the failure to purchase health insurance is economic inactivity, not pre-existing activity that Congress may regulate. Likewise, the failure to vaccinate is not pre-existing activity.
To be sure, Congress has other means of imposing a vaccine mandate. The Court upheld the Obamacare mandate as a tax, so Congress might impose a tax surcharge on unvaccinated individuals. Or it could use its spending power to induce states to impose vaccination mandates by linking the acceptance of some federal Medicaid or other health-related grants to such a mandate.
Unless specifically exempted, a federal law imposing a vaccination mandate, even if generally within congressional authority, would be subject to religious exceptions under the Religious Freedom Restoration Act (RFRA). Thus, people who objected to being vaccinated on religious grounds would not be subject to the mandate unless vaccination would be, in RFRA’s language, “the least restrictive means of furthering [a] compelling governmental interest.” The government surely has a compelling interest in public health, but whether herd immunity could be achieved without vaccinating religious objectors might depend on how many such objectors there are.
The vast majority of Americans profess faiths that do not officially forbid vaccination, but it is easy to imagine that substantial numbers of anti-vaxxers could come to associate their opposition to vaccination with their religion. If so, the fact that their sincerely held views are unorthodox or heretical would not preclude a RFRA exception. Yet if a great many people register religious objections to vaccination, that fact itself could disqualify them for exceptions because, as the number of exempt individuals increases, so does the need to vaccinate any particular individual who seeks an exception.
RFRA does not restrict state laws requiring vaccination, but many states have their own versions of RFRA. In addition, all states require that children in daycare or school be vaccinated, but most allow religious as well as medical exceptions. Some states also allow parents to opt out based on personal beliefs, while a few—including California and New York—permit only medical exemptions.
Vaccination, Bodily Integrity, and Abortion
Mandatory vaccination of children as a condition of attending school is generally accepted. What about adults? The Jacobson Court upheld mandatory smallpox vaccination but, as Judge Stickman observed, more recent cases may cast doubt on the old approach.
Consider the 1992 Supreme Court decision in Planned Parenthood v. Casey, which characterized the abortion right first recognized in Roe v. Wade as protecting “bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection.” As that quotation suggests, “bodily integrity” is a somewhat awkward way of referring to the right to control what goes into or out of one’s body. For example, in Winston v. Lee, the Court held that a state could not perform nonconsensual surgery on a robbery suspect to remove a bullet sought as evidence against him. In another case, the Supreme Court assumed that a competent adult has a constitutional right to refuse medical treatment, even if death would result.
Should the right to bodily integrity also protect against mandatory vaccination? We might be tempted to distinguish some of the bodily integrity cases as involving only paternalistic justifications for intrusions. One has a right to avoid unwanted medical care because it is, after all, one’s own health and life at stake. By contrast, mandatory vaccination aims to protect not only the person to be vaccinated but the community that would benefit from herd immunity.
Yet the distinction between paternalistic and other-regarding justifications only goes so far. Abortion restrictions aim to protect third parties, namely fetuses. Likewise, in Winston, the state sought evidence from the suspect to use against him—and thus for the benefit of crime victims and potential victims through the criminal law’s deterrent function. Nonetheless, the Court vindicated his right.
Indeed, one of the best-known arguments for the abortion right rests expressly on the ground that one cannot be required to give of one’s body for the benefit of others. Philosopher Judith Jarvis Thomson, who died last week at the age of 91, provocatively proposed a thought experiment in which you awake to find yourself connected back to back with a famous violinist whose kidneys will fail and cause him to die if he is disconnected before nine months. She then explored how this and related thought experiments (including one involving “people-seeds” that “drift about in the air like pollen”) showed that abortion prohibitions impermissibly infringe the right to bodily autonomy even on the assumption that fetuses have all the rights and interests of fully-born humans.
Can abortion prohibitions and mandatory vaccination nonetheless be distinguished? Perhaps they don’t need to be. With Justice Amy Coney Barrett’s recent confirmation having cemented a conservative majority on the Supreme Court, perhaps the abortion right will soon be overruled. If so, Jacobson’s holding allowing mandatory vaccination would no longer be inconsistent with Roe because Roe would be no more.
But don’t count on it. Even if a newly energized conservative Court overrules Roe, it is likely to retain some constitutional protection for bodily integrity. After all, if there were no constitutional right to bodily integrity at all, then government could require abortions on population control or other grounds. Meanwhile, Roe could persist for many years simply in weakened form.
So long as abortion rights remain on the books, we could reconcile them with the permissibility of mandatory vaccination in two main ways. One would be to note that abortion restrictions are gendered—restricting the liberty of cisgender women and some transgender men but not others. That’s why abortion rights have been championed as part of the women’s movement. By contrast, a vaccine mandate would apply evenhandedly.
Still, some abortion rights opponents describe abortion prohibitions’ gendered impact as incidental—a byproduct of biology, not an exercise in misogyny. Even if you find that contention unpersuasive, you might not think the distinction crucial. Suppose that a vaccine is proven safe and effective for men but that it poses serious health risks for women. A mandate that men but not women be vaccinated would discriminate based on sex, but we might say that it does so justifiably.
If the gendered aspect of abortion restrictions does not suffice to distinguish them from a vaccination mandate, consider one further distinction. Requiring someone to remain pregnant for nine months, go through childbirth, and then take on the responsibilities of parenthood (or the emotional toll of giving a child up for adoption) imposes a much greater burden than does a requirement that one bear a few seconds of pain from a needle and suffer mild flu symptoms for about a day (or run about a two percent risk of suffering severe flu symptoms for a day). Put differently, while both abortion restrictions and a vaccination mandate infringe the right to bodily integrity, the former do so to a much greater degree.
Does the size and scope of the burden matter? The short answer is yes. In Winston, the bullet-removal case, the Supreme Court distinguished between surgery to remove a bullet—a major imposition—and the facts of an earlier case, Schmerber v. California, in which the Court allowed police to administer a blood alcohol test over the objections of a driver suspected of driving drunk. The Court explained: “The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure.”
Thus, in its broad outlines at least, Jacobson should remain good law. The state’s interest in prosecuting drunk driving justifies sticking a needle into the arm of an otherwise unwilling person. So does the state’s interest in controlling the spread of a deadly disease.