Government forcing everyone to be vaccinated--what specific law prohibits this?

Factual Questions
1

My personal opinion is that it should be a criminal offence to refuse the covid vaccination.
But my personal opinion doesn’t matter. What matters is the law.
And thus, my question is in the title.
Why can’t a democratic western nation pass a law requiring vaccination for all citizens?

My main question is about American law, but I’m also interested in other countries. It seems that every country in Europe has the same problem…Everywhere, governments are begging people to get the vaccine, but they cannot force it on the public.
Why not?

I assume that most countries have public health requirements that apply to other dangerous diseases, such as cholera, typhus, etc. Probably the most famous example is Typhoid Mary ,in America a century ago. She was forcibly incarcerated in a hospital for half her life, since she was recognized as a super-spreader.

Whenever I see an idiot proudly going maskless and refusing the vaccine, I want to put him jail for attempted murder. Obviously, I can’t quite do this. :slight_smile:
Americans (and others) love to talk about preserving their freedom, etc. But in what specific law is there a written guarantee of the “freedom to refuse a vaccine”? And if there does exist a law, or legal precedents, that provide this freedom, why can’t a new law be passed which defines a new crime? (Say, define refusal to protect against covid is a crime of , I dunno, reckless endangerment, such as drunk driving.

In America, Republicans would never let such a bill pass, but in Democratic areas, it would be possible to pass a local, or even state-wide, law.
And in Europe, there are a lot of idiots, but fewer than in America, so i would think that it would be politically possible to find 60 or 70% of the politicians who would support a law.

2

If required by law, compulsory vaccination is perfectly legal in the U.S. We have mandated other vaccines in the past. The Supreme Court upheld compulsory vaccination in Jacobson v. Massachusetts , 197 U.S. 11 (1905). The law at issue then allowed Massachusetts localities to mandate whatever vaccines they saw as necessary for public health.

~Max

3

In general, liberal democracies recognize a right to medical privacy that includes protections from mandatory invasive medical treatments, i.e. the right to reject medical treatment even if it is recommended and necessary to maintain life and health. This is in addition to recognitions of religious or ostensibly moral objections to medical treatments. This has to be balanced by the harms to people who cannot legally make such decisions for themselves (children, mentally indigent, people under a conservatorship) and to public health overall, but in general individual rights triumph other considerations unless there is some specific harm, e.g. quarantining someone who is suspected of being contagious such as ‘Typhoid’ Mary Mallon. (In Mallon’s case, authorities bent over backward to try to accommodate her and only permanently quarantined her when she refused to stop cooking.)

In the case of SARS-CoV-2 and COVID-19, the biggest measurable harm is the overwhelming of hospital resources, denying non-COVID-related medical care to people in need and putting first responders and medical personnel at severe risk of contagion. The more expansive risk of developing more virulent variants is a theoretical (but very plausible) risk, and since we have so many political leaders even denying that SARS-CoV-2 is a real threat at all, it is difficult enough just to make the case of the immediate harms to the voting public despite incontrovertible evidence. There are also the logistical and political challenges of attempting to impose such a mandate; we do it with public schools on the basis that a measles or chickenpox outbreak would be severely disruptive, and rubella would threaten pregnant women, but it is possible for people to opt out by not sending children to public schools. A mandatory campaign to vaccinate adults would mean forcibly rounding some people up which nobody has a taste for even if it were upheld by federal courts.

As for why we cannot convince people to voluntarily agree with comprehensive vaccination despite the fact that the Moderna, BioNTech/Pfizer, Janssen/J&J, and Oxford/AstraZeneca vaccines are arguably the most widely tested vaccines in the history of vaccinology and even the observed adverse reactions are statistically far less than the consequences of the actual infection? People are rationalizing animals and will believe whatever suits them even when the facts clearly point otherwise. I hope all employers, schools, local and state governments, and anyone else with a compelling interest imposes so many restrictions on unvaccinated people that vaccination becomes a necessary prerequisite for participating in any public life regardless of whether people ‘believe’ it to be necessary for their own health or the safety of others, but I doubt a national mandate would be effective and enforceable.

Stranger

4

In fact each local board of health in Massachusetts still has authority to mandate (free) vaccination for adults over 21, but the fine for noncompliance is limited to $5.

Massachusetts General Laws Part I. Administration of the Government (Ch. 1-182) Ch. 111, § 181

~Max

5

States have a lot more authority to impose public health measures than the US federal government. In fact, the federal government lacks any specific Constitutional authority to do so, although it could probably do so under the Commerce Clause has it has with many other regulatory powers. Of course, we have governments and legislatures in many states refusing to embrace vaccination and actively trying to prohibit common sense public health measures, so…freedom?

Stranger

6

I know that sometime in the late 1940s every kid in my school in Philly was required to get a smallpox vaccination and my reports the same thing in NYC. So I think states can require vaccinations. While I support the idea of medical exemptions, I am totally opposed to religious ones, not to mention personal philosophies.

7

In another thread, someone posted a link to this article:

In 1905, the US Supreme Court upheld vaccine mandates, so there is precedent.

8

Right, but the right to privacy, as it’s understood today, didn’t exist in 1905.

9

Very true, but as you note, it is a 1905 case. This is GQ, so I would just say that 1905 was far prior to the line of cases which have talked about a right to privacy and right to bodily integrity like Roe, Casey, Griswold, etc. and it is unclear how much vitality that still has.

To answer the OP more directly as to what law it would violate, it would be a common law battery. It would be a forced, unwelcome touching and intrusion of someone’s body which is a battery. Whether society can pass a law changing that is a debate, not a question, and for now the Jacobson case is controlling.

ETA: I see @D_Anconia beat me to it.

10

This was for school attendance, not the general population.

11

Well, Jacobson only really upheld a very minor fine for those who were not vaccinated. (It’s a tax not a mandate, as some might say). It’s Buck v. Bell that holds that actually compelling medical procedures in the interests of the public health is constitutional (explicitly relying on and extending Jacobson).

12

The anti-vaxxers may well try to argue that the individual states, and not the federal government, have the authority to mandate vaccinations according to the Tenth Amendment:

Of course, if states (or even local municipalities) then try to mandate vaccinations, they will fight tooth-and-nail against that too, because reasons.

The Tenth Amendment argument is probably weak. The 1905 vaccine mandate, upheld by the Supreme Court, seems to say so.

13

Many countries mandate vaccination for attending school, which probably catches a large percentage of the population, probably enough for the so-called herd immunity.

Switzerland does not, and subsequently has had outbreaks of measles and whooping cough in the past decades. Also there are many immigrants from other countries where vaccination is not available.

14

How do you figure? Both Jacobson and Buck involved state laws and the state’s authority to regulate public health matters. Jacobson relies in significant part on the view that the provision was enacted under the state’s police power, which “which the State did not surrender when becoming a member of the Union under the Constitution” and that such matters are “within the discretion of the State.”

I don’t know how a court would view a federal mandate (the scope of federal power is viewed somewhat differently now), but Jacobson seems to strongly suggest that such a mandate is fundamentally an exercise of the state’s power with respect to public health.

15

Here is the fed argument: We have the power to regulate interstate commerce. The Covid-19 pandemic has stifled interstate commerce more than probably anything in recent memory. States are enacting (in our hypo) mandatory vaccination laws in order to curb its spread. If the entire nation curbed the spread of Covid-19 it would cause a more vibrant market for commerce in almost every good and service.

Therefore a regulation, already adopted by many states, is a necessary and proper method of regulating interstate commerce. Given the current jurisprudence of “everything is interstate commerce” coupled with the fact that this regulation really would improve interstate commerce, I don’t see how any court would strike it down, IF we assume that a state would have the power to mandate vaccines.

16

I understand the argument, but I don’t think you get there from Jacobson or Buck. Those decisions are explicitly premised on the idea that states (as states) have broad police powers and authority to address public health crises and that this extends to compelling medical procedures and/or tax those who do not comply, if it is in the interest of the public health (which is also in the discretion of the state).

There has certainly been some criticism of Buck in the last hundred years , but Jacobson and Buck together likely stand for the proposition that a state could require people to be vaccinated as part of its public health regulatory authority (but see the disproportionate racial impact of such a mandate as another area where the law has developed since 1900).

But those decisions don’t suggest a broad federal authority to do the same (hence my question) and I don’t think there’s really much support for such a power. Certainly, I can imagine the federal government imposing a vaccine requirement for air travel, or train travel, or even in certain businesses (but see the constitutional right to free travel as well as the racial issue); as a federal employee, the weak employer mandate that has been adopted seems perfectly permissible to me.

(I also don’t know how a federal mandate would work. You talk about a “regulation,” but a regulation under what authority? Requiring what? I suppose it’s could be part of the supposed plenary power of the CDC).

17

That’s an understatement. Maybe you get Thomas and on a good day Alito to uphold Buck, but there is no way that the rest of the Court finds that case is still good law. And likewise with Jacobson. I’m not saying that there are not good constitutional arguments that states can mandate vaccination, but the rationale of these cases have been undermined by 100 or more years of development of the individual rights line of cases.

I feel that legal scholars blindly quoting Jacobson are not presenting the full picture.

18

Fun fact: Over 6 million New Yorkers got vaccinated against smallpox during the last outbreak of the disease in America, in 1947. It was entirely voluntary, though NYC apparently could mandate such a campaign if it wished.

*the smallpox vaccine carried a much higher risk of serious side effects than Covid-19 vaccines.
**“The Case of the Man From Mexico”, Berton Roueche’s story about the '47 outbreak is a great read.

19

I presume all this means that the government can enact penalties for refusing to be vaccinated; they can’t literally grab you, strap you to a gurney and give you an injection.

20

So far, AFAIK, no country without a vaccine shortage is making COVID vaccines mandatory. Not Vatican City. Not Singapore. Not China. So it is hard for me to see large democracies doing it — even though local vaccine mandates are historically normal, in the U.S., during an epidemic.

This is alarming to me and shows lack of valuing human life.

As for countries having a mandatory law that will presumably take effect when supply is unlimited, it looks, from web search, like there are two — Indonesia and the Federated States of Micronesia. And Saudi Arabia and Sri Lanka look like they are going to make it difficult, but still possible, to remain legally unvaccinated:

Countries making vaccine mandatory