By MIKE MAGEE

The power to mandate vaccines was litigated and resolved over a century ago. Justice John Marshall Harlin, a favorite of current Chief Justice Roberts, penned the 7 to 2 majority opinion in 1905’s Jacobson v. Massachusetts. Its impact was epic.

In 1905, Massachusetts was one of 11 states that required compulsory vaccinations. The Rev. Henning Jacobson, a Lutheran minister, challenged the city of Cambridge, MA, which had passed a local law requiring citizens to undergo smallpox vaccination or pay a $5 fine. Jacobson and his son claimed they had previously had bad reactions to the vaccine and refused to pay the fine believing the government was denying them their due process XIV Amendment rights.

In deciding against them, Harlan wrote, “liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty]…” 

Of course, a state’s right to legislate compulsory public health measures does not require them to do so. In fact, as we have seen in Texas and Florida among others, they may decide to do just the opposite – declare life-saving mandates (for masks or vaccines) to be unlawful. At least 14 states have passed laws barring employer and school vaccine mandates and imposing penalties in Republican-controlled states already.  

So state powers are clearly a double-edged sword when it comes to health care. 

Questions anyone?

Does the Federal government have the power to come to the rescue? 

NO. Judgments thus far refer specifically to states’ rights. These include the 1922 decision, Zucht v. King, where the decision supported a local public school district’s right to require vaccination for admission to the school. In this decision, Judge Louis Brandeis wrote, “a state may, consistently with the federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative.” 

Can the federal government forcibly require or compel you to get vaccinated in the U.S.(with exceptions for religion and disability)?  

NO.

Isn’t that what they are doing with a mandate? 

NO. A vaccine mandate means the government is “setting a condition on you returning to society or participating in a particular activity.” 

If a state doesn’t mandate masks, distancing, or vaccines and a business decides to, is that legal? 

With appropriate exceptions for religion and disability, when the intent is to protect employees and customers, legal scholars believe YES, although this remains to be adjudicated..

If a business asks me if I’m vaccinated on entry, is that a HIPAA violation? 

NO. HIPAA regulations restrict hospital and health care workers, not store clerks.

Doesn’t the First Amendment give me the right to reject vaccines?

NO. According to legal scholars: “Freedom to believe in a religion is absolute under the First Amendment. However, freedom to act in accordance with one’s religious beliefs ‘remains subject to regulation for the protection of society.’”

Didn’t the FDA “Emergency Use Authorization” require vaccine mandates? 

NO. This authorized the sale and distribution of the vaccine but did not require anyone’s use of it.

Is President Biden doing all he can, within the powers of the Executive Branch, to protect Americans from the pandemic? 

Legal expert, Georgetown Law professor Lawrence Gostin, says YES. “While states have near plenary power to protect the public’s health, the federal government’s powers are limited…(Biden) is acting fully lawfully pursuant to those powers.

1. the president “is using his executive power to order vaccinations for the federal workforce. (this includes members of the Military.) 

2. He is using his spending power through Medicaid and Medicare to ensure vaccine mandates in health care settings. 

3. And he is using the Occupational Health and Safety Act to mandate vaccinations in all businesses of 100 or more employees. All of these are comfortably within the president’s power.”

Biden could go farther and attempt, by providing financial rewards to states that mandate vaccines, or through the Commerce Claus to limit non-mandated states interstate travel, to extend compliance, but these would most certainly generate extended legal challenges. Federal Law under Title VII of the Civil Rights Act of 1964 and Title I of the Americans with Disability Act also require vaccine exemptions for religious and medical reasons to be in place. (Nationally, less than 1% have claimed these exemptions.)

As for the states, it’s a messy affair. While Texas Governor Abbott grandstands, the federal District Court in Texas in Bridges et al v. Houston Methodist Hospital refused relief for any of the 117 employees suspended and threatened with termination if they refused to get vaccinated. The decision read: plaintiffs “can freely choose to accept or refuse a COVID-19 vaccine; however, if [they] refuse, [they] will simply need to work somewhere else…Every employment includes limits on the worker’s behavior in exchange for his remuneration. This is all part of the bargain.”

In another recent case, the US Court of Appeals for the Seventh Circuit in Indiana, and the Supreme Court in an appeal, denied relief to eight Indiana University students barred from attendance because they refused to comply with mandated vaccination. Students had chosen not to apply to the university for a medical and religious exemption, which if granted would permit attendance if they wore masks.

States nationwide generally require entering students to have proof of up-to-date vaccines to prevent 11 childhood diseases.

Over a century ago, the fight over vaccines was no less heated than it is today. A New York Times editorial at the time of the Jacobson 1904 decision, tagged the dispute as  “a conflict between intelligence and ignorance, civilization and barbarism” 

On the “intelligence” side, Nearly 60 top medical organizations released a joint statement on July 22^nd in support of mandated vaccines for all health care and long-term care workers as a “logical fulfillment of the ethical commitment” to patients.

Mike Magee, MD is a Medical Historian and Health Economist and author of “Code Blue: Inside the Medical Industrial Complex.“