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President Biden’s promise to have enough vaccines for all Americans by July 4, 2021, is quickly approaching, and the conversation is changing.

We are spending less time talking about how to make more vaccines and who should be the next in line. We are beginning to discuss vaccine requirements and mandates.

Some companies are already flirting with the idea of requiring full vaccination for employees to return to work in person.

In December, U.S. Equal Employment Opportunity Commission ruled that employers could require proof of vaccination prior to returning to work.

This has been a growing trend since the H1N1 flu pandemic. In 2009, hospitals across the country began requiring employees to receive flu vaccinations.

This continues today, with a majority of U.S. hospitals requiring employees to receive an annual flu vaccine. Other sectors like education, manufacturing and finance are beginning to follow suit.

All of this raises the question of individual freedom. Can the government and companies require this in the interest of public health?

Both vaccine mandates and their legal challenges have a long history.

School vaccination requirements began to appear in Massachusetts in 1855 as a response to smallpox. By the early 20th century, half of the US had vaccination requirements for children entering school.

The most notable challenge at the time was Jacobson v. Massachusetts in 1905.

The Supreme Court ultimately decided that a rejection of vaccine mandates “would practically strip the legislative department of its function to care for the public health and the public safety when endangered by epidemics of disease.”

“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,” the Court went on to explain. “There are manifold restraints to which every person is necessarily subject for the common good.”

In 1922, the Supreme Court addressed childhood vaccination laws in Zucht v. King by rejecting a 14th Amendment challenge against the city’s ordinance that required children to show a vaccination certificate prior to attending school.

The court argued, “These ordinances confirmer not arbitrary power, but only that broad discretion required for the protection of the public health.”

This trend is continued in Prince v. Massachusetts when, in the 1940’s, the U.S. Supreme Court summarized the doctrine of parens patriae (Latin for “parent of the nation”) saying, “Neither rights of religion nor rights of parenthood are beyond limitation.”

“Acting to guard the general interest in youth’s wellbeing, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways,” the Court said.

“Thus (parents) cannot claim freedom from compulsory vaccinations for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or child to communicable disease.”

The discussion died down for a few years until public health official pushed to eradicate measles in the late 1960’s. This ultimately resulted in every state adopting a school age immunization requirement, but this did not come without challenges.

The era of the 1960’s saw not only a push for civil rights but also religious liberty, which impacted vaccine mandates when several religious groups argued for a rejection of government mandates.

Most notable was Sherbert v. Verner in 1963 where the high court ruled that the freedom of religious conviction is absolute but the freedom to practice is still subject to the protection of society and the greater good.

This was later challenged in Wisconsin v. Yoder (1972) when Amish communities filed suit with regard to forced school enrollment until age 16. Ultimately, SCOTUS ruled that the state did not demonstrate the societal benefit discussed in Sherbert.

Things changed in 1990 with Employment Division of the Department of Human Resources of Oregon v. Smith where the Supreme Court moved beyond previous rulings and lowered the burden of proof for the state.

The court argued that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes conduct that his religion prescribes.’”

Congress attempted to reestablish the compelling interest test defined in Sherbert, but this effort ended when the Supreme Court threw out The Religious Freedom Restoration Act of 1993.

Since the 1990’s, there have been no significant legal challenges regarding the constitutionality of vaccine mandates at the national level, but different states have enacted varying rules. To date, 45 states have religious exemption laws and 15 have philosophical exemptions.

The federal government only has the authority to make recommendations to state agencies and legislatures, so it cannot impose a nationwide vaccine mandate.

Since most states have developed religious and philosophical exemption rules, it is unlikely that there will be a national mandate related to COVID-19 vaccinations.

Most likely, any such mandates would be enacted at the level of individual employers and service providers. So, do employers have this kind of authority?

The doctrine of “employment at will” – which applies in most states save for when it conflicts with protected classes, collective bargaining agreements or existing statutes – asserts that employers have a right to set the expectations of employment, which would include vaccinations.

In Virginia Mason Hospital v. Washington State Nurses Association (2007), the nursing union argued that, under their collective bargaining agreement, the hospital could not create a vaccine mandate without union approval.

While this was upheld by both a federal district court and the Ninth Circuit Court of Appeals, the hospital ultimately was able to institute a flu vaccine requirement two years later. Countless healthcare facilities have followed suit.

In summary, the Supreme Court, state courts and legislatures have upheld that the government has a limited right to restrict personal freedom in order to protect the public health and the greater good. This is a right that is rarely used.

In addition, several states and the Equal Opportunity Employment Commission have upheld an employer’s right to insist upon vaccinations.

The fact that the state government and/or employers can insist upon vaccinations is a topic that needs to be evaluated further, as this issue goes beyond COVID-19 vaccines.

Most ethicists will affirm that both individual freedom and public health are important. As we move closer to what we hope is the end of this pandemic, we need to take both principles seriously as we craft additional solutions.

When is it moral to require a vaccination? What kind of exemptions should be allowed? Who decides which vaccines will be imposed? Where is the line between personal freedom and public health benefit?

Editor’s note: This is the first of a two-part series. Part two, exploring some of the questions raised in part one, is available here.

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