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October 7, 2021

COVID-19 Vaccine Mandates—A Wider Freedom

Author Affiliations
  • 1O’Neill Institute for National and Global Health Law, Georgetown University Law Center, Washington, DC
JAMA Health Forum. 2021;2(10):e213852. doi:10.1001/jamahealthforum.2021.3852

President Biden has required COVID-19 vaccinations across much of the US workforce, reaching nearly 100 million workers. Opponents call it unconstitutional, a violation of personal freedom, and even “un-American.” The truth is that vaccine mandates are lawful and deeply entrenched in US history and values. They constitute a “wider freedom” so that everyone in society can feel safer where they work, learn, worship, and live.

Vaccine Mandates Integral to US Culture and Tradition

Vaccine mandates are very much part of US culture and tradition dating back to the colonial era, even before Edward Jenner’s 1796 discovery of cowpox vaccinia. George Washington required smallpox inoculations for the Continental Army in 1777, writing that “we should have more to dread from [smallpox], than from the sword of the enemy.” He condemned a Virginia law restricting inoculations, saying he would rather move for a law to compel inoculation of all children “under severe penalties.” Massachusetts enacted the first law mandating immunization in 1809, and by the time the US Supreme Court upheld its constitutionality in Jacobson v Massachusetts (1905), municipal and state smallpox vaccination mandates were prevalent across the US.

States began requiring childhood vaccinations as a condition of school entry by the mid-19th century and by 1963, 20 states had school vaccine mandates. Although the US Centers for Disease Control and Prevention (CDC) has a recommended schedule for child and adolescent immunization, it does not set vaccination requirements for schools. The CDC points out that each state makes its own decisions about which vaccines are required for school attendance in that state. All school immunization laws grant medical exemptions, 44 states grant religious exemptions, and 15 states allow philosophical exemptions. Although vaccines are not routinely required for adults in most settings, they are often mandated for military service members, new immigrants seeking permanent US residence, college and university students, and health care workers. Previous epidemics like the 2018-2019 measles outbreak in New York City were quashed by emergency vaccine mandates for adults in affected zones. Even before President Biden’s COVID-19 vaccine mandate announcement, several cities and states, businesses, and institutions of higher education had issued their own COVID-19 vaccine mandates.1

COVID-19 vaccine mandates, therefore, should not be viewed as an aberration but as the continuation of a long tradition in the US to prevent or mitigate infectious disease outbreaks and epidemics. The CDC recognizes vaccinations as among the top public health achievements of the 20th century.

Vaccine Mandates Lawful

Cities and states have broad “police powers” to require vaccinations, upheld twice by the US Supreme Court in 1905 and 1922. The Pfizer-BioNTech COVID-19 vaccine is fully licensed for individuals aged 16 years or older and has received Emergency Use Authorization for children aged 12 to 15 years. (It is likely that vaccines will soon be authorized for children aged ≥5 years.) The police powers of cities and states enable them to require eligible individuals to be vaccinated against SARS-CoV-2 for school attendance, as the Los Angeles Unified School District recently did covering more than 600 000 students. New York City’s “Key to NYC” program requires proof of COVID-19 vaccination for indoor activities such as dining, fitness, and entertainment. The courts have upheld Jacobson v Massachusetts for more than a century, affording municipalities and states wide discretion in exercising public health powers, including mandatory vaccinations.2

Unlike cities and states, the federal government does not have broad public health powers. The president has only limited public health powers and could not, for example, issue a nationwide vaccine mandate. President Biden’s 3 vaccine requirements, however, have strong legal support. First, President Biden ordered all federal workers and contractors to be vaccinated. There is no option to be tested for COVID-19 instead of being vaccinated. As head of the federal workforce, Biden has the power to set evidence-based safety standards, including mandating masks and vaccines. The Equal Employment Opportunity Commission and the Department of Justice both advised that governments and businesses can require COVID-19 vaccines as a condition of employment, so long as they provide religious and medical exemptions. Courts also have upheld COVID-19 vaccine mandates for employees as well as college students.

Second, President Biden ordered all health care facilities to require COVID-19 vaccinations as a condition of receiving certain Medicaid or Medicare funding. The Supreme Court has ruled that the federal government can set reasonable conditions for the receipt of federal funds. In South Dakota v Dole (1987), the Supreme Court upheld a law requiring states to adopt a minimum drinking age of 21 years as a condition of receiving certain federal highway funds. So-called conditional spending must be reasonable. For example, the Supreme Court struck down a requirement in the Affordable Care Act for states to expand Medicaid as a condition of receiving all Medicaid funding, ruling that the amount of funding at stake made the contingency unduly coercive.

President Biden’s third, and most controversial, vaccine mandate requires businesses with 100 or more employees to either mandate COVID-19 vaccinations or institute weekly testing and other risk mitigation measures. Opponents have called it an “overreach” and unconstitutional, but President Biden is acting at the height of his presidential powers. He is not making a unilateral executive decision but is rather acting through specific congressional authorization. In 1970, Congress enacted the Occupational Safety and Health Act precisely because of a weak patchwork of state worker safety regulations. It empowered the Department of Labor to set uniform national workplace safety standards, including emergency temporary standards in response to workplace hazards. Exposure to SARS-CoV-2 can be just as hazardous as workplace injury risks. The Occupational Safety and Health Administration (OSHA) has already set emergency temporary standards for COVID-19 exposures in health care settings. Previously, OSHA set bloodborne pathogen standards that included hepatitis B vaccinations. OSHA is currently devising emergency temporary standards for COVID-19 vaccination or weekly testing, which is expected to be issued soon.

Two Freedoms

Freedom holds deep ethical and legal value in the US. There are at least 2 types of freedom—freedom from personal restraint and a wider freedom to engage in daily life without significant risk of exposure to safety hazards. Vaccine mandates are justified under both notions of freedom. Certainly, competent adults have the right to bodily integrity and to make their own health care decisions. Yet, the right of informed consent has clear limits. No one has the right to expose others to a potentially serious infectious disease. Even though breakthrough SARS-CoV-2 infections after vaccination do occur, vaccinated individuals pose transmission risks for much shorter periods compared with unvaccinated individuals. Thus, a fully vaccinated workforce, especially if layered with other risk mitigation measures such as wearing a mask and improved ventilation, creates a far safer environment for everyone.

In his annual address to Congress in 1941, Franklin D. Roosevelt identified “Four Freedoms”—for speech and worship, as well as freedom from want and from fear. By freedom from fear, he meant that the public has the right to engage in daily social and economic life without fear of avoidable harms. It is unknown how much COVID-19 vaccination coverage is needed to contain SARS-CoV-2, but it probably requires rates exceeding 80% of the population. It is important to remember that everyone in society is interconnected. Our individual choice to not get vaccinated poses avoidable risks to the people we interact with and those with whom they interact. The higher the vaccination coverage, the safer we all are.

Highly vaccinated populations create a wider freedom to return more safely to the ordinary activities people value—such as going to work, school, cafés or restaurants, the theater, or sporting events, as well as traveling. COVID-19 vaccines are a remarkable scientific tool that enables society to live in greater freedom and with less fear. Using every tool—including mandates—to achieve high vaccination coverage enhances freedom.

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Article Information

Open Access: This is an open access article distributed under the terms of the CC-BY License. © 2021 Gostin LO. JAMA Health Forum.

Corresponding Author: Lawrence O. Gostin, JD, Georgetown University Law Center, 600 New Jersey Ave NW, Washington, DC 20001 (gostin@georgetown.edu).

Conflict of Interest Disclosures: None reported.

References
1.
Gostin  LO, Shaw  J, Salmon  DA.  Mandatory SARS-CoV-2 vaccinations in K-12 schools, colleges/universities, and businesses.   JAMA. 2021;326(1):25-26. doi:10.1001/jama.2021.9342PubMedGoogle ScholarCrossref
2.
Gostin  LO.  Jacobson v Massachusetts at 100 years: police power and civil liberties in tension.   Am J Public Health. 2005;95(4):576-581. doi:10.2105/AJPH.2004.055152PubMedGoogle ScholarCrossref
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    6 Comments for this article
    EXPAND ALL
    The Right Answer and the Effective Answer
    Steven Zeitzew, M.D. | West Los Angeles VA Healthcare Center
    There is a large difference between being correct and being effective. As an orthopaedic surgeon I learned long ago that telling patients what to do is less effective than informing them effectively about the consequences of the choices before them, and gently guiding them so they can make the correct choice willingly. Sometimes mandates are effective and necessary, such as vaccines for schoolchildren or for healthcare workers in at least some circumstances. What we are learning is that telling people we are forcing them to do the right thing is sometimes not an effective technique for getting them to actually do the right thing. Sometimes telling a "biker dude" that he cannot put weight on his leg after fracture surgery won't work, because he won't do something just because he is instructed to, and is in fact more likely to do the opposite. That same patient is smart enough to make a good decision if he is informed of the poor prognosis associated with excessive premature weight-bearing before fracture healing. That is human nature. We don't like being told what to do. We do like making well-informed decisions on our own. Even a well-intended mandate based on the best evidence will sometimes be a less effective technique for getting people to make the right choice.

    It might be more effective to provide reliable information and allow patients to decide about vaccination on their own in many circumstances, even though some will make the poor choice of declining vaccination, in spite of the overwhelming and persuasive evidence supporting COVID vaccination. Liberty and freedom are important to human beings, and threatening to take it away will have consequences. We will find we cannot force all people to do the right thing. We will also find that most people will make the choice to do the right thing when they are allowed to give informed consent, the same standard we use for other medical interventions, even when they face a life and death choice that affects them and those around them. Yes, sometimes we must impose a choice in order to protect others. Forcing our choice may not be the most effective technique in this instance.
    CONFLICT OF INTEREST: None Reported
    READ MORE
    The Consequences of “Poor Choices”
    Thomas Stanton, MD | Retired
    The “biker dude” cited in Dr. Zeitzew’s example is not legally permitted to run a red light, even if he chooses to accept the risk to his person (his broken leg), because society recognizes that his choice also puts others at risk. Vaccine mandates try to protect society at large from such foolish choices made by individuals.
    CONFLICT OF INTEREST: None Reported
    Not News
    Jean Crawford, MD | Nostrumlaboratories inc.
    This mandate is truly not news to most of us, schools have for decades at least demanded proof of vaccination prior to admitting children into schools. And because of said vaccines and mandates, the U.S. until recently has had the luxury of excusing parents from experiencing, up close and personal, polio, tetanus, and other transmissible diseases in their children. I mention these 2 because the potential outcome of either is horrid. Yet these parents have never seen them so they cannot possibly understand the consequences, even if you show them pictures, "it won't happen to them". Therefore the combined lack of experience of what chickenpox, or measles can truly do, and the current anti-vax movement, creates an environment for disaster. What is a physician supposed to do?
    CONFLICT OF INTEREST: None Reported
    READ MORE
    Solution Requires a Viable, Secure, Efficient Vaccine Verification System
    David Gans, MSHA | Medical Group Management Association
    The author describes that the U.S. needs to mandate vaccinations to minimize COVID-19 transmission. While he justifies why we need a vaccine mandate, he neglects an important element of a mandate policy. When President Ronald Reagan discussed arms control with the Soviet Union, he cited a Russian proverb that became his signature quotation: "Trust, but verify."

    It is past time for the U.S. to have a viable, secure, and efficient vaccination verification system. While some states have developed electronic vaccine passes that function within their boundaries, the U.S. lacks a national standard for what constitutes proof of
    vaccination. Worse, there are numerous examples of people falsifying credentials, forging vaccination cards, or hacking digital certification tools to meet entry requirements for bars, restaurants, health facilities, mass gatherings, and places of business.

    Creating a national standard for cell phone-enabled vaccination verification should be a priority. Verification needs to be easy to use at point of entry, inexpensive, and widely recognized as legitimate proof of vaccination.

    As soon as COVID-19 vaccines were first administered, we knew the CDC vaccination card was inadequate for this purpose. It is easily forged and, being paper, is not a durable product that can withstand constant use.

    A universal, easy to use, reliable, and secure vaccine verification/certification need not be a national vaccination passport. Instead, it can be a single standard that state governments and multiple private businesses can use to independently create cell-phone applications that are universally accepted. If providing proof of vaccination is to be a commonplace part of our lives, we need a simple solution that every resident can use in confidence that their personal information is secure, and which provides unequivocal proof of vaccination.
    CONFLICT OF INTEREST: Technical adviser to a company that is developing a blockchain-based vaccine passport.
    READ MORE
    Covid Mandates
    Boyd Hoddinott, Bsc, MD, MPH | Private Practice
    How can we force people to take a vaccine that may not prevent spread? It does, of course so far protect the vaccinated against serious illness. So encourage people to get it to protect themselves.
    CONFLICT OF INTEREST: None Reported
    Mandatory CV Risk Factor Treatment?
    Keith Woollard, MB BS | Retired

    Vaccination is highly effective at preventing death from COVID-19 but is only moderately effective at preventing transmission so it is possible that everyone will eventually be exposed regardless of vaccination mandates.

    Premature, preventable deaths from cardiovascular disease are a much greater problem for society and those deaths are profoundly harmful to family, friends and colleagues.

    Perhaps mandatory detection and treatment of hypertension and hyperlipidemia should be first cab off the rank!

    CONFLICT OF INTEREST: None Reported
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