In the second year of the COVID-19 pandemic, widespread distribution and administration of vaccines are raising hopes of achieving herd immunity—and returning to some sense of normalcy—in the U.S. Right now, vaccine supply is below demand, but that will soon change.
Health care providers, long-term care facilities, airlines, restaurants, universities, and other entities are currently considering, or have already implemented, COVID-19 vaccine mandates, leaving Americans wondering whether these entities can require them to get vaccinated. The short answer is yes, though different kinds of requirements apply in different situations. Vaccine mandates are legal (within specific parameters) as affirmed by the U.S. Supreme Court in 1905’s Jacobson v. Massachusetts.
Complex questions underlie the legality of vaccine mandates. Public misperceptions blur the lines between voluntary, mandated, and compelled vaccinations, highlighting controversial gray-area cases. Though often used interchangeably, public health law distinguishes between these three approaches to vaccination requirements.
Any suitable candidate for a COVID-19 vaccine can voluntarily choose whether to get the shot when the opportunity arises. Mandates, however, set conditions on participation to encourage vaccination: If you want to go to work, attend school, or travel, get vaccinated. With compulsory vaccination, individual consent is not an option. Force is used if necessary. Though a vestige of a bygone era of public health practice, limited legal authority remains for forcible vaccination among certain groups.
The term mandate may be particularly confusing. Compared with voluntary vaccinations, some may view mandates as absolute requirements, but they’re not. Mandates attach consequences to one’s choice, to encourage (but not actually require) vaccination, subject to legally recognized medical, religious, philosophical, or other exemptions.
Mandates typically apply to health care providers or other at-risk essential workers. They may also include proposed “travel passports” necessary to board mass transit or attend specific events. The most common example of a mandate, however, is conditioning children’s day care or school attendance on completing certain vaccinations. Parents or caregivers still can choose whether to vaccinate their children, but failing to do so carries consequences, including having to home-school them or keep them home during specific disease outbreaks.
Consequences tied to mandates, like school/university attendance or potential job loss, can sometimes make vaccines difficult to turn down. These kinds of mandates may feel forced or required—how can one possibly refuse? Indeed, a few recent lawsuits have emerged to challenge employment mandates, illustrating the difficulty behind these choices. The important defining characteristic of a mandate, though, is that even if the choice of whether to get vaccinated is difficult, the option still exists. When that option disappears, a vaccination measure shifts from mandatory to compulsory.
Compulsory vaccinations are physically administered irrespective of one’s choice or philosophical preferences. Notorious historical practices involved forced vaccinations to combat other infectious disease outbreaks. At the turn of the 20th century, for example, New York City public health officials, sometimes accompanied by law enforcement, went door to door to physically vaccinate adults against smallpox.
The idea that government can physically restrain people to administer vaccinations may seem antiquated. Indeed, no autonomous adult in the U.S. today can be forcibly vaccinated for COVID-19. Yet limited legal authority to compel vaccinations still exists among certain groups. Members of the U.S. military may be physically required to undergo vaccination as a binding condition of their service. Adults or minors housed involuntarily as wards in congregate, or communal, settings—including prisons or mental health institutions—arguably can be vaccinated to protect the health of others. Despite the potential for significant abuses underlying forced medical interventions, public health and safety may prevail in these settings.
Nevertheless, those who are medically unfit for vaccination, perhaps because of severe allergy to an ingredient, are always exempted. No one may be constitutionally compelled to be immunized if the vaccine directly threatens their health or life, often based on the Centers for Disease Control and Prevention’s recommendations identifying medical contraindications to vaccination. Other exemptions for religious or philosophical reasons are state-specific, with each jurisdiction outlining criteria for claiming an exemption.
What about people residing in other environments (such as juvenile facilities or immigration detainment centers) or those lacking full autonomy (such as children)? Can they be forcibly vaccinated for COVID-19? Concerning minors, the answer is clearly no. COVID-19 vaccinations are not yet authorized for children under 16, and even when one is, CDC’s Advisory Committee on Immunization Practices must still add it to its recommended immunization schedule before it would be mandated for school attendance.
As for others, the answers are not so simple. Take, for example, a minor, age 17, who does not want to be vaccinated but is required by his parents to do so. Or an elderly woman found partially incompetent by a court and ordered to live in a state-run long-term care facility. If the facility mandates immunization for all residents, is her vaccination essentially forced? Answers lie in a gray area of the law. In the case of the elderly woman, she (or her guardian) may still petition a court to seek an exception on grounds that vaccination is not in her best interests. This legal option alone may deem the vaccination mandatory and not compulsory.
Legal questions aside, strong public health justifications underscore long-term care facility vaccine mandates. Although less than 1 percent of the U.S. population resides in long-term care facilities, 34 percent of U.S. COVID-19 deaths have occurred within them (as of March 4).
In three states (Connecticut, New Hampshire, and Rhode Island), more than 70 percent of COVID-19 deaths (before Nov. 25, 2020) occurred in long-term care facilities. The congregate nature of the living environment, combined with most residents’ advanced years and underlying medical conditions, substantially heightens the risks of contracting COVID-19 and experiencing severe illness.
Stopping the spread of vaccine-preventable diseases hinges on herd immunity: ensuring enough individuals receive the vaccine to protect those who cannot be vaccinated (for medical reasons or age). Protecting at-risk populations from preventable diseases is a guiding principle behind all vaccine mandates. Dire circumstances in long-term care facilities, hospitals, mental health institutions, and prisons may mean that, ethically, all who medically can receive a vaccine must do so. Other congregate settings (including university housing or boarding schools) may also be justified in implementing mandates to protect those who cannot medically be vaccinated—but again, those affected have options to refuse.
Reaching herd immunity will require both sufficient vaccination and ensuring strong protections against potential vaccine abuses that could lead to distrust. These include seeking voluntary vaccination as a first resort; mandating vaccination based on epidemiological findings of efficacy; compelling vaccination only as warranted to protect vulnerable, nonautonomous people and their communities; monitoring vaccine safety through constant surveillance; assuring fair access to vaccines for all Americans; and ensuring judicial or other decision-makers are at the ready to assess gray-area cases in light of individuals’ best interests and public health promotion. Prioritizing vaccination and protecting against potential abuses in this way will help legally and ethically pave the road to herd immunity.
Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.
