Getting to “Normal” – COVID-19 Vaccinations: Vol. 1 Historical Vaccination Mandates

Sean LaPorta Education Law, Employment Law, Litigation, Sean LaPorta

There is a lot of excitement about the release of various vaccines for the novel coronavirus and getting back to “normal.” However, there has been less discussion about what will happen on the road to “normal” – including implementation of the vaccines and whether there is significant appetite for taking the vaccine. Over the upcoming weeks, I will take a dive into questions that employees, employers, parents, students and others have regarding the impact vaccines will have on our daily lives. This series will focus on questions such as, but not limited to:

– Can my employer require me to be vaccinated?
– Can the government require me to be vaccinated?
– Can my school/daycare require my child to be vaccinated?
– Will my decision not to become vaccinated affect my employment?
– Will my decision not to become vaccinated affect my unemployment/pandemic assistance benefits?

Historical Justification for Mandated Vaccinations (the government)

While we call the latest pandemic-causing virus by many names – such as novel coronavirus and COVID-19 – the reality is there is nothing novel about the situation we are in. History tells us that outbreaks of all sizes, scope, and severity have been common throughout the world for thousands of years. While this certainly does not provide comfort, it does give us guidance about what to expect moving forward.

The issue of mandated vaccinations – and penalties for failing to be vaccinated – was addressed by the Supreme Court of Massachusetts over 100 years ago. Although some would expect the issue to revolve around the often-cited Spanish Flu, it was actually the result of a smallpox outbreak in Cambridge, Massachusetts. In order to combat this illness, the Massachusetts Legislature enacted a statute where:

“The board of health of a city or town if, in its opinion, it is necessary for the public health or safety shall require and enforce the vaccination and revaccination of all of the inhabitants thereof and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirements shall forfeit five dollars.” R.L. c. 75, §137.

Two cases, Commonwealth v. Pear, 183 Mass. 242 (1903) and Jacobson v. Massachusetts, 197 U.S. 11 (1905) brought forward the legality of such a law. Generally, the courts found that under the Police Powers of the State, the Massachusetts’ legislature could establish laws and penalties for the good and welfare of the Commonwealth, such as the preservation of public health. At least in part, the statute was aided by the fact that the ultimate power to determine whether a vaccination was required rested with the Board of Health, which was well suited to make such a determination.

The United States Supreme Court found 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 free 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.” Jacobson v. Massachusetts, 917 U.S. 11, 26 (1905). Resting on this conclusion, the Court further explained that such restraints can be valid, if they are for the general comfort, health and prosperity of the State.

“Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law.” Id.

In short, the Supreme Court held the mandated vaccinations – under the circumstances present regarding the risks of smallpox – to be constitutional as applied, in that it was “the best known way to meet and suppress the evils of a smallpox epidemic that imperiled an entire population.” Id. at 30-31. The Court even went as far to say that a minority (those wishing not to be vaccinated) cannot avail itself of the protections of the Commonwealth while defying its laws, which were instituted in good faith. Id. at 37-38.

For those constitutional scholars among you, the decisions above are clearly missing a depth we are used to seeing when individual rights are restricted. This has not been lost on modern legal minds, and was pointed out squarely in Agudath Isr. v. Cuomo, 983 F.3d 620 (2d. Cir. 2020). To clarify, both cases, “predated the modern constitution jurisprudence of tiers of scrutiny, [and were] decided before the First Amendment was incorporated against the states.” Id. It was further pointed out that the decisions “involved an entirely different mode of analysis . . . [and that] even if based on the acknowledged police powers of a state, a public-health measure must always yield in case of conflict with any right which the constitution gives or secures.” Id. citing Jacobson.

Despite the apparent opening to dismantle the holding of Jacobson, recent precedent by the courts suggests that the Police Powers of the State may still hold enough muster to compel vaccinations under the circumstances we currently face. See Agudath Isr. v. Cuomo, 983 F.3d 620 (2d. Cir. 2020); CommCan, Inc. v. Baker, 2020 Mass. Super. LEXIS 70.

While the extent of the Commonwealth’s authority to institute mandatory vaccinations is unknown, it is clear that “[f]aced with a serious threat of disease, the Commonwealth has broad power to restrain personal liberty…to protect public health.” CommCan, Inc. v. Baker, 2020 Mass. Super. LEXIS 70.

Given the polarizing nature of the vaccine and the unresolved powers of the Commonwealth, legal challenges to vaccinations programs – should they come into existence – are expected to be met with much resistance.

Please stay tuned for the next installment where I will address how vaccinations may impact daycares/summer camps.