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A mandatory Covid-19 vaccine?

As of 12 December, the U.S. Food and Drug Administration authorised Pfizer's COVID-19 vaccine and the United Kingdom, Bahrain, Canada, Saudi Arabia, Mexico and the European Union were quick to follow. Most countries have received the vaccine and the immunisation exercise is expected to start as soon as possible but while Pfizer's vaccine brings relief to many in the midst of the coronavirus crisis, it remains a point of concern for many others.

However, there is one issue: According to a Gallup survey from late October, a staggering proportion of Americans, 42%, said they would not be amenable to getting vaccinated even if it were to be provided free. Their main source of concern? That a vaccine developed so quickly might be of questionable safety. With this mentality prevalent in such a large part of the population, herd immunity would be seriously delayed and so certain officials have been pushing for the vaccine to be made mandatory.

In November, the New York State Bar Association made a suggestion to the state to make immunisation mandatory for all residents with the exception of those with valid medical reasons. This was followed up with in December as the number of coronavirus cases surged. A member of the New York State Assembly proposed a bill to require COVID-19 vaccines for all residents who are able to safely receive it.

The question on 42% of Americans minds was if it was within the powers of the federal government to make the shot compulsory. The answer is no, at least not for the general population. For certain groups in high-risk sectors like healthcare, yes. Currently, it is mandatory in most hospitals for staff to have received a flu vaccine.

Besides being almost unenforceable (like wearing masks) and highly impractical, compulsory nationwide vaccinations would also be unconstitutional. The powers of the federal government is limited and a larger proportion is vested in the states. But the federal government still can get people to vaccinate, by imposing it as a condition of getting a passport, for example.

Although it may be beyond the federal government's reach, it is decidedly not for states, cities or businesses which can issue orders regarding the mandating of vaccines. The consequences of not adhering to the mandate would likely result in a penalty such as a fine but forced vaccination would still not be an option. This can be done at schools which would make the vaccination a prerequisite to enrolment or businesses which can mandate it as part of healthy and rules at the workplace ( it is unlikely that businesses will have a vaccine mandate given the fuss kicked up over the previously attempted mask mandate).

The authority to regulate public health and wellbeing lies with the states who have in previous instances made vaccines mandatory, most notably in Jacobson v. Massachusetts in 1905, after a smallpox outbreak and more recently, in 2019, New York City required people living in certain areas in Brooklyn, who had not previously gotten a measles vaccine to get it or be slapped with a $1,000 fine and it is likely these cases will repeat themselves in due time if the pandemic does not come under control.

There is one small exception to the law in this case - the Civil Rights Act of 1964 offers protection to individuals who are unable to get immunised due to religious reasons. Employers would be expected to reasonably accommodate these individuals but this does not extend to businesses who would still be within their rights to refuse entry to said individual but might compromise with them in another manner.

This news probably comes as relief to the half of Americans still skeptical about vaccinations, but for the other half it means that the nightmare of the pandemic will not be close to ending anytime soon. The question we must ask ourselves if we are in the 42% is that if a vaccination not proven so far to have negative side effects really more dangerous than a virus that has provably killed 1.74 million people worldwide?



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