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Vaccine Mandates: Are They Constitutional?

Updated: Aug 12, 2021



The Covid-19 vaccine.


“It’s a personal choice”. “You are violating my rights.” “You can’t make me get a vaccine!”


Misconceptions.


So, as Matt Ford from the New Republic eloquently puts it: “Those who claim that vaccine resistance is an expression of liberty are historically illiterate.”


But let me give you a partial answer that will make more sense as you continue reading. When asked: Do Americans have the autonomy to abstain from getting a Covid-19 vaccine? The answer is yes… but practically speaking, no.


In late May of 2021, an image was posted on Instagram that claimed that businesses cannot legally require customers to provide proof of vaccinations or deny entry. This post cited the Fourth Amendment that prohibits unreasonable searches and seizures and Title III of the U.S civil rights act. But this post was mistaken. The Fourth Amendment only applies to government entities and officials, and Title III does not mention discrimination based on medical conditions; businesses cannot discriminate based on gender, race, religion, disability, or national origin, but they sure can, based on vaccines.


According to Michele Goodwin, a professor of law at UC Irvine, if a person does not want to show their proof of vaccination, the business staff does not have the right to search them, but they do have the right to deny them service and entry.


But mandatory vaccines are spreading across states. Take for example New York, where the state announced that all employees will have to either get vaccinated or get tested weekly. Also, many private firms require vaccines now. Google, for example, has made it mandatory for its employees to receive vaccines. Plus, more than 600 colleges and universities require most of their students, faculty, and staff to be fully vaccinated.


And just remember, you don’t have to get a vaccine by law, but if you want to keep your job, then you should get vaccinated. Employment relationships in the U.S are mostly “at-will”, meaning that an employer can terminate an employee at any time for whatever reason even if you walked in with an ugly tie your boss doesn’t like, so you can definitely get fired for not being vaccinated.


But there are exceptions. If a person is unable to be vaccinated for specific medical reasons under the Americans With Disabilities Act, or they have a religious exemption under the Civil Rights Act of 1964, then the business must accommodate the customer by law. This can include requiring that an unvaccinated employee who is legally exempt from vaccination wears a face mask, gets periodic tests, works in more isolated areas, etc.


So it has been established that the federal government cannot make you get a vaccine, but they can incentivize you to get vaccinated by giving you a tax break. According to the U.S Department of Energy, the tax code gives numerous benefits to taxpayers who engage in behavior that Congress “deems desirable” like buying a home, having a child, or using an electric vehicle. But the government doesn’t only have to use carrots, they can require unvaccinated Americans to pay higher taxes. As a matter of fact, Congress can even take away federal programs such as Medicare if they wanted to.


So again, the government can’t make you get a vaccine... but they really can.



Furthermore, there is a legal precedent that substantiates these constitutional claims. Firstly, George Washington mandated vaccines during the American Revolution to protect his army against smallpox. And secondly, the 1905 7-2 Supreme Court decision in Jacobson vs. Massachusetts found that residents 21 and over in Cambridge, Massachusetts had to receive smallpox vaccinations. While Jacobson, a priest, argued that the decision to mandate vaccines was a violation of his liberty, Justice John Marshall Harlan wrote at the time: “upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Thus, under Jacobson, local and state governments may mandate vaccines to their residents.


But some Republicans are trying to protect anti-vaxxers in the form of anti-discrimination laws. Nonetheless, according to James Hodge, the director of the Center for Public Health Law and Policy at Arizona State University, legislative measures to protect anti-vaxxers’ personal choice does not hold water, and anti-vaxxers should not be “a protected status in the same way as race, gender, and religion.”


Ultimately, if you don’t have a religious or medical exemption, then you are being selfish for not getting vaccinated. If anti-vaxxers really want to see some more liberty and personal freedom, then get vaccinated so life can go back to normal.



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