All of us are long-time defenders of prescription medical product manufacturers, and some of us are veterans of the vaccine wars of the 1980s and 1990s involving DPT vaccine and thimerosal.  We are big fans of vaccines and the tremendous health benefits they have bestowed on humanity, and are mystified by the alliance between anti-vaccine fringe elements and the COVID-19 virus that has politicized the public health response to the worst pandemic in a century.  It has gotten to the point where some people would prefer to risk dying of COVID-19 because they perceive the “get vaccinated” message as coming from the opposite side of the political spectrum.  Such suicide-by-virus is occurring despite the widespread availability of safe and free vaccines that are:  (1) almost 100% effective at preventing hospitalization and death from COVID-19; and (2) over 90% effective at preventing any COVID-19 infection at all (a third vaccine is somewhat less effective (67%-85%), but only requires one jab and is easier to store and transport).

COVID-19 itself looks to be fatal in about 1.7% of cases (610,952/34,533,179 according to Johns Hopkins, as of this writing).  That’s about 1 in 60.  With only about half of the population of the United States vaccinated (and a current jab rate of around half-a-million a day), that means somewhat over 160 million Americans are fully vaccinated.  The latest surge, driven by the extremely contagious delta (Δ) variant has resulted in “breakthrough” COVID-19 infections in already vaccinated people.  According to the CDC, by the end of April:

A total of 10,262 SARS-CoV-2 vaccine breakthrough infections had been reported. . . .  Based on preliminary data, 2,725 (27%) vaccine breakthrough infections were asymptomatic, 995 (10%) patients were known to be hospitalized, and 160 (2%) patients died.

At that point, “approximately 101 million persons in the United States had been fully vaccinated.”  That works out to a risk of breakthrough infection of around one in 10,000, a risk of hospitalization from breakthrough infection of around one in 100,000, and a risk of breakthrough death of about one in 600,000.  You do the math.

So the COVID-19 pandemic in the country (and more gradually, the world) is changing.  It’s now become a pandemic of the unvaccinated, with every report we’ve seen of hospitals – and mortuaries − filled with almost entirely people who were either vaccine ineligible or, worse, who were eligible but had simply declined to get vaccinated.  As a result, all of us, vaccinated or not, are likely to face the “return of the mask.”  Unfortunately, too many people can’t be trusted to get vaccinated for the good of all of us, and many of those same people also can’t be trusted to mask themselves voluntarily.  So everybody has to mask.

And things can get worse.  Children, more than four million of them, have already been infected by COVID, representing 2.2% of national hospitalizations and 0.7% of deaths.  That’s despite almost all schooling having been conducted remotely for over a year.  According to American Academy of Pediatrics statistics, this pediatric death rate is more than twice the flu, and pediatric infections have tripled in recent weeks.  But this fall, with in-person schooling resuming, the current trajectory means that large numbers of vaccine ineligible children, exposed to COVID-19 from unvaccinated family members, will attend school, thereby putting at risk everyone else in the schools − other children (and their family members), teachers, and school staff.  As the president recently said, “This is an American tragedy.”

In sum, the time has come to turn to mandatory COVID-19 vaccination, which as we discuss below has been done through the country, mostly in schools, during epidemics for over a century.  Recently, over fifty health-related organizations, including the American Medical Association, the American Nursing Association, and the American Pharmacists Association, have endorsed mandatory vaccination for all health care and elder care workers:

Due to the recent COVID-19 surge and the availability of safe and effective vaccines, our health care organizations and societies advocate that all health care and long-term care employers require their workers to receive the COVID-19 vaccine. This is the logical fulfillment of the ethical commitment of all health care workers to put patients as well as residents of long-term care facilities first and take all steps necessary to ensure their health and well-being.

Joint Statement in Support of COVID-19 Vaccine Mandates for All Workers in Health and Long-Term Care.  The federal government has started the process of creating vaccine mandates for federal workers and federal contractors.  New York City and the state of California are likewise considering mandatory vaccination for public workers.  Many corporations are making vaccination mandatory for their employees, led by Disney, Walmart, and Google.  We look forward to mandatory COVID-19 vaccination for common-carrier travel as well, since this is the only avenue allowing safe, unmasked travel in airplanes, trains, and busses.  While we swear by masks, we have also been known to swear at them.

So we’re putting our research where our mouths are.  What follows should save anyone defending against anti-vaxxers some time and money.

Anti-vaxxers will sue, of course, like they did in Bridges v. Houston Methodist Hospital, 2021 WL 2399994 (S.D. Tex. June 12, 2021), and as they have for well over a century.  But they have, and should, lose − again as they have for well over a century.  Mandatory vaccination has been recognized as constitutionally permissible for that long, even at the height of the substantive due process era.  While some jurisdictions allow exceptions to mandatory vaccination for “religious” reasons, that’s a matter of grace, not any sort of constitutional requirement.  No appellate court has ever required such an exemption, and that has been litigated a lot.

We further note that most of the older cases involve smallpox vaccine that, unlike COVID-19 vaccines, actually infected people with a less serious disease (cowpox, where the “vacc” in “vaccination” comes from) to prevent something much worse.  Thus COVID-19 vaccines are, if anything, a fortiori from smallpox precedent, since they are non-infectious.

The key case is Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).  During a smallpox outbreak, a Massachusetts town, exercising power delegated to it by that state, imposed a mandatory vaccination requirement.  An anti-vaxxer of that time sued, “insist[ing] that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination” and “that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health.”  Id. at 26.  Those arguments lost 7-2.  Justice Harlan (the elder) held.

[T]he 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.  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. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.

Id. (emphasis added).  Jacobson thereby rejected the legal malarkey currently known as “sovereign citizen” theory.

Rather, “persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state.”  Id. (citation and quotation marks omitted).  “Liberty” is “freedom from restraint under conditions essential to the equal enjoyment of the same right by others.”  Id. at 27.  “[T]hose who had no faith in vaccination as a mean of preventing the spread of smallpox . . . put in peril the health of the person vaccinated.”  Id. at 35.  Thus, the “fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for ‘the common good.’”  Id.  In other words, vaccine resistance need not be tolerated when it allows disease to spread and imperil others.

Under Jacobson, mandatory vaccination was in smallpox days, and is now in COVID-19 times, entirely constitutional.  “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.”  Id.  Where a communicable disease is “prevalent,” and worse, “increasing,” “the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case.”  Id. at 28.  Given, “the knowledge which, it is safe to affirm, in common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease,” mandatory vaccination was neither “arbitrary” nor “unreasonable.”  Id.

Just as “quarantines” are a valid means of fighting disease (see this helpful Reed Smith resource guide), so is mandatory vaccination – no matter what anti-vaxxers might say:

If the mode adopted by the commonwealth of Massachusetts for the protection of its local communities against smallpox proved to be distressing, inconvenient, or objectionable to some, . . . the answer is that it was the duty of the constituted authorities primarily to keep in view the welfare, comfort, and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few. . . .  [I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

Jacobson, 197 U.S. at 27-28 (emphasis added).

Arguments that “attach little or no value to vaccination as a means of preventing” disease, or that claim “that vaccination causes other diseases,” must give way to the modern consensus.  Vaccines work.  “What everybody knows the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief, and is maintained by high medical authority.”  Id. at 30.  It is not a court’s function to overturn a vaccine mandate.  “[T]he principle of vaccination as a means to prevent the spread of [disease] has been enforced in many states by statutes making the vaccination of children a condition of their right to enter or remain in public schools.”  Id. at 31-32 (string citation omitted).  What was “generally accepted” in 1905 is equally apropos today:

The common belief, however, is that [vaccination] has a decided tendency to prevent the spread of this fearful disease, and to render it less dangerous to those who contract it.  While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession.  It has been general . . . in most civilized nations for generations.  It is generally accepted in theory, and generally applied in practice, both by the voluntary action of the people, and in obedience to the command of law.

Id. at 34-35.  “We are not prepared to hold that a minority, residing or remaining in any [place] where [an epidemic disease] is prevalent, and enjoying the general protection afforded by an organized local government, may thus defy the will of its constituted authorities.”  Id. at 37.

As a result of the Supreme Court standing firm in Jacobson, smallpox has been entirely eradicated.

And the Supreme Court recognizes this success.  In the Bruesewitz case that we blogged about here, that radical liberal Justice Antonin Scalia observed that “the elimination of communicable diseases through vaccination became one of the greatest achievements of public health in the 20th century.”  Bruesewitz v. Wyeth LLC, 562 U.S. 223, 226 (2011) (quotation marks and footnote omitted).  Justice Breyer, concurring, agreed.  “[R]outine vaccination is one of the most spectacularly effective public health initiatives this country has ever undertaken.”  Id. at 245.  The result of Bruesewitz:  the effective elimination of product liability litigation involving vaccines.

Bruesewitz did not cite the century-old Jacobson case, but many other courts have for the proposition the mandatory vaccination (we’re not addressing Jacobson’s application to any number of non-vaccine public health measures) is not subject to judicial challenge and does not violate any recognized constitutional rights.  “Jacobson . . . settled that it is within the police power of a state to provide for compulsory vaccination.”  Zucht v. King, 260 U.S. 174, 176 (1922) (Brandeis, J.).

Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.”  Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905).  When those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude “must be especially broad.”  Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary.”

South Bay United Pentecostal Church v. Newsom, ___ U.S. ___, 140 S. Ct. 1613, 1613-14 (2020) (Roberts, C.J. concurring in denial of certiorari) (other citations and quotation marks omitted).  Nor are “compulsory vaccination laws” subject to “strict scrutiny” by “[t]he First Amendment’s protection of religious liberty.”  Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 888-89 (1990).

[A parent] cannot claim freedom from compulsory vaccination 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 the child to communicable disease or the latter to ill health or death.

Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (footnotes omitted) (emphasis added).  The Court has also recognized that, to apply religiously-based “strict scrutiny” to attack something like mandatory vaccination, would also mean allowing similar attacks advocating all sorts of other, supposedly religiously-justified conduct, from polygamy, to peyote, to not paying taxes.  Employment Div., 494 U.S. at 879, 889 (collecting cases).

The argument “that [a state] mandatory vaccination requirement violates substantive due process . . . is foreclosed by” JacobsonPhillips v. City of New York, 775 F.3d 538, 542 (2d Cir. 2015).  A state may “protect the health and safety of public school children through extensive vaccinations.”

The endgame is widespread vaccination, which is necessary, indeed essential, to promote adequate immunity.  The importance of extensive vaccination should not be understated − the efficacy of vaccination relies on the theory of “herd immunity.”  In essence, once a critical mass of the population is immune to a particular disease, the chance that unvaccinated individuals contract that disease drastically decreases.

Nikolao v. Lyon, 875 F.3d 310, 318 (6th Cir. 2017) (citations omitted).  “We are hard-pressed to envision a more secular purpose than” “protect[ing] children from serious and avoidable diseases.”  Id.

[T]he Supreme Court has consistently recognized that a state may constitutionally require school children to be immunized.  This is not surprising given the compelling interest of society in fighting the spread of contagious diseases through mandatory inoculation programs.

Workman v. Mingo Cty. Board. of Education, 419 F. Appx. 348, 356 (4th Cir. 2011) (quotation marks and citations to cases cited above omitted).  See Caviezel v. Great Neck Public Schools, 500 F. Appx. 16, 19 (2d Cir. 2012) (“substantive due process challenge to [state] immunization requirement is defeated by Jacobson”).

State appellate courts have agreed.  “[C]ompelling vaccination is constitutional.”  People v. Ekerold, 105 N.E. 670, 672 (N.Y. 1914).  “There is little question that a state may adopt a program of compulsory immunization for school-age children.”  Davis v. State, 451 A.2d 107, 111 (Md. 1982) (citations omitted).  “[W]e consider the Federal question to be definitely settled in favor of the validity of the requirement of compulsory vaccination.”  Seubold v. Fort Smith Special School Dist., 237 S.W.2d 884, 888 (Ark. 1951).

[T]he statute in question, requiring immunization against certain crippling and deadly diseases particularly dangerous to children before they may be admitted to school, serves an overriding and compelling public interest, and . . . such interest extends to the exclusion of a child until such immunization has been effected, not only as a protection of that child but as a protection of the large number of other children comprising the school community.

Brown v. Stone, 378 So.2d 218, 222 (Miss. 1979).

“It is well established that laws mandating vaccination of school-aged children promote a compelling governmental interest of ensuring health and safety by preventing the spread of contagious diseases.”  Love v. State Dept. of Education, 240 Cal. Rptr.3d 861, 868 (Cal. App. 2018).  “[C]ompulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases.”  Id. at 870.

[F]ederal and state courts, . . . have held either explicitly or implicitly that society has a compelling interest in fighting the spread of contagious diseases through mandatory vaccination. . . .  That interest exists regardless of the circumstances of the day, and is equally compelling whether it is being used to prevent outbreaks or eradicate diseases.  As stated in the statute on immunization requirements, the state’s objective is the eventual achievement of total immunization.

Brown v. Smith, 235 Cal. Rptr.3d 218, 226 (Cal. App. 2018) (citations and quotation marks omitted).  Our research was enlightening.  Indeed, one of the best analyses we found came from Georgia back in the early 1950s.

The ill effects of contagious disease, and its power to wipe out entire populations, is a matter of history.  Many of these scourges of the past have been completely dissipated by the preventive methods of medical science.  The purpose of the legislature in passing the [mandatory vaccination] statute . . . was to prevent the spread of these diseases, not only for the protection of those actually immunized but for the protection of others with whom they might come in contact.  The refusal of the defendants here to have their children vaccinated amounted to a transgression of the rights of others. . . .  Liberty of conscience is one thing.  License to endanger the lives of others by practices contrary to statutes passed for the public safety and in reliance upon modern medical knowledge is another.

Anderson v. State, 65 S.E.2d 848, 851-52 (Ga. App. 1951) (citation omitted) (emphasis added).  See Dalli v. Board of Education, 267 N.E.2d 219, 221 (Mass. 1971) (“compulsory or local option immunization laws” have been “universally upheld as proper exercises of the police power”); Wright v. DeWitt School Dist. No. 1, 385 S.W.2d 644, 647 (Ark. 1965) (“courts are not required to listen to conflicting evidence as to the need of vaccination”); Cude v. State, 377 S.W.2d 816, 819 (Ark. 1964) (“it is within the police power of the State to require that school children be vaccinated . . ., and that such requirement does not violate the constitutional rights of anyone”; guardian appointed to take custody of child); Mosier v. Barren County Board of Health, 215 S.W.2d 967, 969 (Ky. 1948) (given Jacobson, “little space will be devoted to the question that vaccination violates the constitutional rights of these children”); Sadlock v. Board of Education of Borough of Carlstadt, 58 A.2d 218, 220 (N.J. 1948) (taking “judicial notice . . . that vaccination is commonly believed to be a safe and valuable means of preventing the spread of certain diseases . . ., and that this belief is supported by high medical authority”); State v. Drew, 192 A. 629, 631 (N.H. 1937) (“A direct provision for vaccination, with a penalty for refusal to submit, is valid.”); Commonwealth v. Green, 168 N.E. 101, 101 (Mass. 1929) (“The requirement for vaccination has been held to be constitutional.”); Cram v. School Board. of Manchester, 136 A. 263, 263 (N.H. 1927) (summarily affirming under Jacobson); Barber v. School Board of Rochester, 135 A. 159, 160 (N.H. 1926) (“The constitutionality of vaccination statutes has been passed upon in many cases, and the uniform conclusion has been that they constitute a valid exercise of the police power of the state.”) (string cite omitted); People ex rel. Hill v. Board of Education of City of Lansing, 195 N.W. 95, 100 (Mich. 1923) (granting mandamus to enforce mandatory vaccination; “We think the board of health is to be commended, instead of condemned, for applying to the court to enforce its order.”); Spofford v. Carlton, 131 N.E. 314, 315 (Mass. 1921) (“the uniform policy of the commonwealth requires general vaccination as a preventative measure against the infection and spread of . . . dangerous and highly contagious diseases”); State v. Martin, 204 S.W. 622, 625 (Ark. 1918) (“an adult is not deprived of his liberty by the enforcement of a rule of a local board of health requiring the vaccination of all citizens”); Hagler v. Larner, 120 N.E. 575, 577 (Ill. 1918) (“in the event of a present or threatened epidemic” mandatory vaccination is “reasonable and should be upheld”); City of New Braunfels v. Waldschmidt, 207 S.W. 303, 304 (Tex. 1918) (“The contention that [mandatory vaccination] is inconsistent with the liberty guaranteed by the federal and state Constitutions” was “ completely repelled by the opinion . . . in Jacobson”); Herbert v. Demopolis School Board of Education, 73 So. 321, 322 (Ala. 1916) (“the long dominant opinion of professional men that [compulsory vaccination] is efficacious has merited and received the affirmative approval of legislative bodies and of courts throughout this country, as well as elsewhere generally”); Hill v. Bickers, 188 S.W. 766, 768 (Ky. 1916) (enforcing mandatory vaccination requirement; plaintiffs’ “unprofessional opinions jeopardize the health and lives of all the citizens of the county”; vaccination is “not to be decided according to the whims of laymen”); State ex rel. O’Bannon v. Cole, 119 S.W. 424, 428 (Mo. 1909) (“school boards in Missouri, in the event of a smallpox epidemic, or a threatened smallpox epidemic, have the right to enforce” mandatory vaccination); State v. Shorrock, 104 P. 214, 216 (Wash. 1909) (the state “has power to require all minors to attend the public schools, and to require them to be vaccinated before so attending”); Auten v. Board of Directors of Special School Dist. of Little Rock, 104 S.W. 130, 130 (Ark. 1907) (“we do not think there can be any ground for the contention that this requirement that pupils should be vaccinated before entering the schools was unreasonable and unnecessary”); State ex rel. Milhoof v. Board of Education of Village of Barberton, 81 N.E. 568, 569 (Ohio 1907) (“vaccination as a prerequisite to attendance upon the public schools, have been almost uniformly upheld and sustained by the courts, as a reasonable and proper exercise of the police power”); Stull v. Reber, 64 A. 419, 421 (Pa. 1906) (mandatory vaccination “is not only a justifiable but a wise and beneficent exertion of the police power over the public health”); F.F. v. State, 143 N.Y.S.3d 734, 742 (N.Y.A.D. 2021) (“recognizing “the significant public health concern” supporting “mak[ing] the vaccine requirement generally applicable to the public at large in order to achieve herd immunity”); C.F. v. New York City Dept. of Health & Mental Hygiene, 139 N.Y.S.3d 273, 287 (N.Y.A.D 2020) (“implementation of a vaccine mandate in order to control [an] outbreak is a reasonable and proper exercise of the police power, adopted, not only to protect those required to be vaccinated but for the protection of all of the people”) (citation and quotation marks omitted); Maricopa County Health Dept. v. Harmon, 750 P.2d 1364, 1369 (Ariz. App. 1987) (“exclusion of unimmunized pupils from school” held constitutional under Jacobson); Syska v. Montgomery County Board of Education, 415 A.2d 301, 303 (Md. App. 1980) (“the State has the right under the police power, without offending constitutional proscriptions, to require immunization for the protection of the public health and safety”); McCartney v. Austin, 298 N.Y.S.2d 26, 27 (N.Y.A.D. 1969) (“That [mandatory vaccination] statutes . . . are within the police power and thus constitutional generally is too well established to require discussion.”); Board of Education of Mountain Lakes v. Maas, 152 A.2d 394, 404 (N.J. Super. A.D. 1959) (“that there may be differences of opinion as to the necessity or efficacy of vaccination or immunization does not deprive the State of the power to enact legislation requiring compulsory vaccination or immunization”), aff’d mem., 158 A.2d 330 (N.J. 1960); In re Marsh, 14 A.2d 368, 370 (Pa. Super. 1940) (mandatory vaccination “upheld as a valid exercise of the police power of this Commonwealth”; willful refusal to vaccinate resulted in loss of child custody); Abney v. Fox, 250 S.W. 210, 213 (Tex. Civ. App. 1923), writ refused (“That an order requiring vaccination is not in violation of the Constitution is settled”); Commonwealth v. Aiken, 64 Pa. Super. 96, 102 (1916) (“The law requiring vaccination of children in the public schools is a proper one” and “vaccination may be compelled.”); McSween v. Board of School Trustees of City of Ft. Worth, 129 S.W. 206, 208 (Tex. Civ. App. 1910), writ refused (mandatory vaccination was “the exercise of police power for the protection of the health of the pupils of the public schools, and therefore” constitutional under both state and federal constitutions).  Cf. Matter of Christine M., 595 N.Y.S.2d 606, 618 (N.Y. Fam. Ct. Dec. 21, 1992) (finding parent’s failure to comply with mandatory vaccination law caused child to be “neglected” within meaning of child abuse statute).

Likewise, federal district courts recognize that, “[i]n this country there is a long history of disagreements − scientific and otherwise − regarding vaccinations . . ., and courts have repeatedly found that it is for the legislature . . . to choose between opposing theories within medical and scientific communities in determining the most effective way in which to meet and suppress public health threats.”  Doe v. Zucker, ___ F. Supp.3d ___, 2021 WL 619465, at *21 (N.D.N.Y. Feb. 17, 2021) (Jacobson citations omitted).  As we discussed in more detail, here, the district court in Klaassen v. Trustees of Indiana University, ___ F. Supp.3d ___, 2021 WL 3073926 (N.D. Ind. July 18, 2021), approved a university’s mandatory COVID-19 vaccination requirement, holding that, under Jacobson:

[S]tate and federal legislatures [enjoy] wide discretion to pass legislation in areas where there is medical and scientific uncertainty.  Based on this power, states and their authorized arms have historically adopted vaccination mandates. For instance, all fifty states and the District of Columbia have laws requiring students to receive certain vaccines before they may attend school.

Id. at *18-19 (citations, quotation marks, and footnotes omitted).

[T]he purpose of quelling the outbreak by encouraging county-wide vaccination, [is] a measure permitted in a variety of constitutional contexts by Jacobson and its progeny.  For that reason, too, the complained-of restrictions are distinguishable from those in [cases] which had nothing to do with vaccination.  Indeed, to the extent that Plaintiffs argue the Declaration was unconstitutional because it conditioned their children’s rights to attend school on becoming vaccinated, that contention is foreclosed by well-established precedent holding that mandatory vaccination laws are consistent with the Constitution,

W.D. v. Rockland County, ___ F. Supp.3d ___, 2021 WL 707065, at *28 (S.D.N.Y. Feb. 22, 2021) (citations omitted).  See Doe v. Zucker, 496 F. Supp.3d 744, 759 (N.D.N.Y. 2020) (“the public health concerns in maintaining high immunization rates for vaccine-preventable diseases and in avoiding outbreaks of communicable diseases provide ample basis for the newly enacted regulations”); V.D. v. State of New York, 403 F. Supp.3d 76, 87 (S.D.N.Y. 2019) (“[c]onditioning school enrollment on vaccination has long been accepted by courts as a permissible way for States to inoculate large numbers of young people and prevent the spread of contagious diseases”); W.B. v. Crossroads Academy-Central Street, 2019 WL 6257963, at *1 (W.D. Mo. Nov. 22, 2019) (“The most current State and Federal decisions also uniformly support vaccination requirements, including governmental advocacy of vaccinations, despite various scientific, religious, family autonomy and general libertarian objections by parents.”); Whitlow v. California, 203 F. Supp.3d 1079, 1083 (S.D. Cal. 2016) (“For more than 100 years, the United States Supreme Court has upheld the right of the States to enact and enforce laws requiring citizens to be vaccinated.”); Middleton v. Pan, 2016 WL 11518596, at *6-8 (Mag. C.D. Cal. Dec. 15, 2016) (rejecting a variety of constitutional attacks on mandatory vaccination), adopted, 2017 WL 10543984 (C.D. Cal. July 13, 2017); Schenker v. County of Tuscarawas, 2012 WL 4061223, at *12 (N.D. Ohio Sept. 14, 2012) (“It has long been recognized that local authorities may constitutionally mandate vaccinations.”); Scott v. Goodwin, 2010 WL 2926222, at *6 (Mag. W.D. La. June 29, 2010) (“Vaccinations are a legitimate and neutral method to prevent the spread of a contagious and/or dangerous disease in the [prison] inmate population.”), adopted, 2010 WL 2926233 (W.D. La. July 21, 2010); Boone v. Boozman, 217 F. Supp.2d 938, 954 (E.D. Ark. 2002) (“it cannot be questioned that compulsory immunization is a permissible exercise of the State’s police power”); Sherr v. Northport-East Northport Union Free School Dist., 672 F. Supp. 81, 83 (E.D.N.Y. 1987) (“one area in which religious freedom must be subordinated to the compelling interests of society involves protection against the spread of disease”); Hanzel v. Arter, 625 F. Supp. 1259, 1262 (S.D. Ohio 1985) (given Jacobson, “the immunization decision is not encompassed by the right of privacy”); Marsh v. Earle, 24 F. Supp. 385, 387 (M.D. Pa. 1938) (“it is for the legislature and not the courts to determine in the first instance whether vaccination is the best mode for prevention of” disease).  Cf. United States v. Schwartz, 61 M.J. 567, 570 (Navy-Marine Crim. App. 2005) (“There can be little doubt that the vaccination of service members has a valid military purpose.”), aff’d, 64 M.J. 199 (C.A. Armed Forces 2006); United States v. Chadwell, 36 C.M.R. 741, 749-50 (Navy B.R. 1965) (“If we may attach any value whatever to medical knowledge which is common to all civilized peoples, we must conclude on the basis of common knowledge that an order to take immunization shots is legal and necessary in order to protect the health and welfare of the military community and that failure to take such shots would represent a substantial threat to public health and safety in the military.”).

We arbitrarily researched only back to the 1905 Jacobson case.  However, there are dozens of earlier cases (including both New York and California) likewise affirming the constitutionality of vaccination requirements, going back to at least to Hazen v. Strong, 2 Vt. 427, 432-33 (Vt. 1830) (upholding tax to pay for vaccinations).  So in any jurisdiction, additional favorable older precedent may well exist.

What about the FDCA?  Well, for now COVID-19 vaccines are all available only through “Emergency Use Authorizations” (“EUAs”) governed by 21 U.S.C. §360bbb-3.  One of the required “conditions of authorization” for an EUA is informed consent, as “necessary or appropriate to protect the public health,” including “to the extent practicable” information concerning:

the option to accept or refuse administration of the product, [and] the consequences, if any, of refusing administration of the product.

21 U.S.C. §360bbb-3(e)(1)(a)(ii)(III).  Does the FDCA thereby imply that there actually is such an “option,” or only that information is to be provided in the event that such an option exists?

Bridges held that this provision “neither expands nor restricts the responsibilities of private employers” and “does not apply at all to private employers.”  2021 WL 2399994, at *2.  A recent “Memorandum Opinion for the Deputy Counsel to the President” also looked at this argument and concluded that §360bbb-3(e)(1)(a)(ii)(III):

concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.  By its terms, the provision directs only that potential vaccine recipients be “informed” of certain information. . . .  In the sense used here, the word “inform” simply means to “give (someone) facts or information; tell”. . . .  Neither the statutory conditions of authorization nor the [individual vaccine] Fact Sheet itself purports to restrict public or private entities from insisting upon vaccination in any context.

Id. at 6-7 (citations omitted).  As a whole, §360bbb-3 “only has legal effect on a person who carries out an activity for which an authorization under this section is issued” and thus “expressly forecloses any limitation on the activities of the vast majority of entities who would insist upon vaccination requirements.”  Id. at 8.

Thus the “information” that persons receiving an EUA vaccine are entitled to under §360bbb-3(e)(1)(a)(ii)(III) could simply be the “consequences” − that if someone doesn’t get the vaccine, his or her employer is within its rights to terminate employment, or that a health/life insurer might charge a higher premium.  Memorandum Opinion at 12-13.  If Congress had wanted to preclude vaccine mandates, “Congress could have created such a restriction by simply stating that persons (or certain categories of persons) may not require others to use an EUA product.”  Id. at 9 (citations omitted).

[W]e also read [§360bbb-3] as giving FDA some discretion to modify or omit “the option to accept or refuse” notification, or to supplement it with additional in-formation, if and when circumstances change.

Id. at 11 (citing the “to the extent practicable” language).  Thus, “FDA’s responsibility to impose the ‘option to accept or refuse’ condition is not absolute” and can be “modif[ied] or omit[ted]” where “necessary or appropriate to protect the public health.”  Id. at 12.  In any event, any issue with §360bbb-3 disappears as soon as the COVID-19 vaccines receive full FDA approval.

Since we have the vaccine technology to prevent COVID-19 from becoming the next plague or influenza, recurring year after year, preservation of the public health demands that we use it while we still can.  For well over a century science deniers of various stripes have tried, but failed, to stop mandatory vaccination.  We fully expect them to keep trying – and to keep failing.  This post is our contribution to the cause.