COVID-19 Vaccine Mandates: For the Public Safety or a Violation of Constitutional Rights?

In response to the COVID-19 pandemic that quickly changed the world, many scientists and epidemiologists worked diligently to develop vaccinations to help recipients build immunity against the virus and its variants.[1] Despite the large-scale administration of vaccinations potentially ending the pandemic, many Americans have expressed opposition to receiving the vaccinations and even greater opposition to being forced to do so.[2]

In America, COVID-19 vaccine mandates started to become more of a reality when President Biden announced his “Path Out of the Pandemic Plan,” which has been put in place to ensure that the government is “using every available tool to combat COVID-19 [to] save even more lives in the months ahead, while also keeping schools open and safe, and protecting our economy from lockdowns and damage.”[3] Specifically, President Biden’s plan is a six-pronged comprehensive strategy that aims to (1) vaccinate the unvaccinated; (2) further protect the vaccinated; (3) keep schools safely open; (4) increase COVID-19 testing and mask requirements; (5) protect economic recovery; and (6) improve healthcare treatment for those with COVID-19.[4]

A vaccination mandate is

a requirement that says you must be vaccinated to do certain things like working, [and] traveling . . . But the government or other authorities can’t physically force you to get vaccinated. A vaccine mandate means that if you don’t, businesses, schools, and others can legally stop you from entering the building or using their services if they choose to.[5]

President Biden’s plan requires all employers with over one hundred employees to ensure their workers are vaccinated or tested weekly, all federal workers and millions of contractors that do business with the federal government to be vaccinated, and over seventeen million healthcare workers at Medicare- and Medicaid-participating hospitals to be vaccinated.[6]

In light of these federal mandates, the Occupational Safety and Health Administration (“OSHA”) has implemented an Emergency Temporary Standard (“ETS”) to minimize the risk of COVID-19 transmission in the workplace.[7] Like the Biden plan, the ETS applies to private employers with more than one hundred employees.[8] At its heart, the ETS requires employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy. There is an exception for employers to allow employees to undergo weekly COVID-19 testing and wear a face covering at the workplace, in lieu of vaccination.[9] Originally, because the ETS was effective immediately upon publication in the Federal Register, which occurred on November 5, 2021, employers had to comply by January 4, 2022.[10]

Litigation, however, has delayed implementation of the ETS by OSHA and delayed the employer compliance date. On November 6, 2021, the Fifth Circuit Court of Appeals implemented a stay on OSHA’s ETS pending judicial review.  The court expressed concern regarding whether OSHA had the authority to even implement such a plan and potential concerns about violations of First Amendment rights,[11] which has since been lifted by the Sixth Circuit in a 2-1 decision.[12] In fact, in America, there have been

[n]umerous lawsuits challenging the constitutionality and legality of COVID-19 vaccine mandates . . . These cases challenge policies in both the public and private sectors at the local, state, and national levels. These challenges raise multiple arguments, including: [1] Constitutional substantive due process arguments alleging violations of fundamental rights of bodily privacy or bodily integrity; [2] First Amendment-based arguments, including those involving the right to free speech and the right to free religious exercise; [3] Fourth Amendment unreasonable search and seizure arguments; and [4] Federal or state law violations, including arguments pursuant to the Americans with Disabilities Act (ADA), the Civil Rights Act (CRA), and the federal Food, Drug, and Cosmetic Act (FDCA).[13]

Despite the plethora of lawsuits filed, many of the arguments advanced in these suits against vaccine mandates have historically failed and will likely continue to fail.[14] The seminal mandatory vaccination case is Jacobson v. Commonwealth of Massachusetts.[15] In this case from 1905, a town was facing a smallpox outbreak, so it exercised its state-delegated power and imposed a mandatory vaccination requirement to protect against smallpox.[16] An opponent of the vaccine sued, “insist[ing] that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination” and “that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health.”[17] Ultimately, Justice Harlan found his argument unpersuasive and held that

. . . the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.[18]

Essentially, our Constitution entrusts “the safety and the health of the people to the politically accountable officials of the States to guard and protect.”[19] These officials should not be “subject to second-guessing by an ‘unelected federal judiciary.’”[20] Currently, “many COVID-19-related mandatory vaccination requirements are being upheld under [the] Jacobson [standard].”[21]

With recent advancements in technology that have helped to develop the COVID-19 vaccinations in a safe manner to prevent COVID-19 from becoming more dangerous, many are hopeful that there is an end in sight to the pandemic. For well over a century, many Americans have alleged constitutional violations because of vaccination mandates but have failed to succeed in doing so. Only time will tell if Americans will come up with more novel and creative arguments in resisting vaccination mandates in the future. For now, it appears that COVID-19 vaccination mandates are constitutional and will continue to be upheld for the public health and safety of the country throughout the pendency of the pandemic.

[1] Developing COVID-19 Vaccines, Ctr. for Disease Control (Sep. 8, 2021), www.cdc.gov/coronavirus/2019-ncov/vaccines/distributing/steps-ensure-safety.html [perma.cc/Z6HL-RSCM].

[2] See generally Tom Spiggle, Could Opposition to the Coronavirus Vaccine Be a Form of Political Speech?, Forbes (Nov. 3, 2021), www.forbes.com/sites/tomspiggle/2021/11/03/could-opposition-to-the-coronavirus-vaccine-be-a-form-of-political-speech/?sh=42c24757e7e0 (stating that “[e]mployees opposing the vaccine mandates have recognized this and have come up with the argument that an employer requiring them to state their coronavirus vaccination status infringes on their free speech rights as guaranteed by the First Amendment”).

[3] Path Out of the Pandemic: President Biden’s COVID-19 Action Plan, White House, www.whitehouse.gov/covidplan/ [perma.cc/PD5L-S53U] (last visited Jan. 5, 2022).

[4] See id. (listing six primary goals of plan).

[5] Vaccine Mandates: What to Know, WebMD, www.webmd.com/vaccines/covid-19-vaccine/vaccine-mandates#1 (last visited Jan. 5, 2022).

[6] See Path Out of the Pandemic, supra note 3 (explaining implementation of first goal: vaccinating the unvaccinated).

[7] Emergency Temporary Standard Fact Sheet: COVID-19 Vaccination and Testing ETS, Occupational Safety & Health Admin., www.osha.gov/sites/default/files/publications/OSHA4161.pdf [perma.cc/Q3P7-9EEA] (last visited Jan. 5, 2022).

[8] Id.

[9] Id.

[10] COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 6142 (Nov. 5, 2021), www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard [perma.cc/CZ8W-8Z57].

[11] See BST Holdings, L.L.C., et al. v. OSHA, Case No. 21-60845, Fifth Circuit Court of Appeals (Nov. 12, 2021), www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf [perma.cc/FQ9U-Y7HM].

[12] In re MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-7000, et al. (6th Cir., Dec. 17, 2021).

[13] COVID-19 Vaccination Mandates – Recent Cases, Network for Pub. Health L. (Oct. 8, 2021), www.networkforphl.org/wp-content/uploads/2021/10/Western-Region-Memo-COVID-Vaccine-Mandate-Cases.pdf [perma.cc/A2T6-TXFR].

[14] See generally James M. Beck, Not Breaking News: Mandatory Vaccination Has Been Constitutional for Over a Century, Am. Bar Ass’n (Oct. 28, 2021), www.americanbar.org/groups/litigation/committees/mass-torts/articles/2021/winter2022-not-breaking-news-mandatory-vaccination-has-been-constitutional-for-over-a-century/ [perma.cc/5Y8L-RTWR] (recounting these arguments made in historic court cases and insisting that they will continue to fail).

[15] Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 22 (1905).

[16] Beck, supra note 14.

[17] Id. (citing Jacobson, 197 U.S. at 26).

[18] Id.

[19] South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613-14 (Roberts, C.J., concurring) (citing Jacobson, 197 U.S. at 26 (internal citations omitted)).

[20] Id.

[21] Beck, supra note 14.