Phillip Meylan - Nov 22, 2020

Can the Government Mandate a Covid-19 Vaccine? Will It Have To?

With the emergence of two vaccines with high levels of effectiveness, there’s a strong prospect of having powerful new tools to combat Covid-19 in the months ahead. But the road between a vaccine and society returning to normal is far from certain. Millions of doses will need to be produced and intelligently distributed, and critically, people must be willing to take them. The last few months have seen already-low confidence in such a vaccine fall even further, with just two-thirds of Americans expressing a willingness to be vaccinated when one becomes available. Similar trends are playing out globally. 

Source: The Economist

Bringing the pandemic under control will likely require successfully vaccinating 60–70% of the population to halt community transmission. Vaccine skepticism puts rapidly reaching that goal in jeopardy. Can the government at the state or federal level mandate vaccination? What is motivating this growing skepticism in Covid vaccination and how might those sentiments shift over time? This week, The Factual looked at 28 articles from 24 sources to explore likely pathways toward vaccination, as well as related vaccine skepticism. 

Growing Vaccination Skepticism

A big surprise of the last few months has been that skepticism of a Covid-19 vaccine has intensified even while the virus has become increasingly worse — netting 1 million new cases in a single week and bringing the U.S. death toll to above 250,000. This shift in opinion is problematic for pursuing effective vaccination and is not specific to the U.S. All but three countries monitored in an Ipsos-MORI poll in October found that willingness to take a Covid-19 vaccine had fallen since the previous poll in August, bringing the worldwide average down from 77% to 73%. The U.S., with roughly 65% willing to vaccinate, scores similarly with some other countries such as Spain and Italy that have been hard-hit by the pandemic, while France, an outlier, scored just 54%.

Given the grim conditions, declining trust in a Covid-19 vaccine may be intuitively surprising, and most see this pushback as a general skepticism about the speed with which Covid-19 vaccines are being pursued, not growth of the anti-vaccination movement. Through inherent complexity and novelty but also human error, the pandemic has created no shortage of uncertainty and misinformation, which has at times reflected poorly on government authorities and at others provided fuel to those that want to cast doubt on both scientific and governmental authority.

Source: PBS

No wonder then that people globally are equally worried about potential side-effects (34%) and the fast pace of clinical trials (33%). In the U.S. in particular, the public has expressed concern about undue political pressure from the Trump administration to approve a vaccine, particularly given the Food and Drug Administration’s mixed record on resisting such pressure. The two vaccines that have emerged, from Pfizer/BioNTech and Moderna, have passed phase 3 trials with 43,000 and 30,000 participants, respectively. Fully analyzing the efficacy of either vaccine, including their potential side effects, which at this point look minimal, will have to wait for the release of full clinical data. It’s important to note that vaccines in recent history have an excellent track record in terms of safety and that early signs suggest these vaccines will be safe.

In the weeks and months that it might take for either to reach the public, much work remains to be done to address this skepticism. Even if these vaccines swiftly receive approval and are rapidly produced in the quantities needed, effective vaccination will depend on enough of the population taking part, leaving many to speculate about whether the government has a right to force specific populations to vaccinate and whether it will need to exercise such a power. 

Pathways to Vaccination

Vaccine believers and skeptics alike are interested in the same question: can the government force people to take vaccines? In the U.S., matters of public health are generally in the purview of state governments, and historic precedent shows that states are within their rights to enact vaccine mandates within their jurisdictions. The federal government, by contrast, would have a much more difficult time enacting such a mandate, though they and the private sector could use a variety of incentives encourage widespread vaccination. 

State

The legal precedent for vaccination mandates at the state level is laid out by a Supreme Court case from 1905, Jacobson v Massachusetts, which confirmed a state’s right to enact “reasonable regulations established by legislature to protect public health and safety.” In addressing an outbreak of smallpox in Massachusetts, this case clarified that such an order is not a violation of the 14th Amendment right to liberty, but rather that liberty could not exist if individuals could act in a way that is injurious to others, for example, by carrying a disease that could otherwise be vaccinated against. In determining if an action such as vaccination is helpful or harmful to public health, the state has a right to refer to a board of qualified individuals to make such an assessment. Furthermore, “it is immaterial whether or not the vaccine is actually effective, so long as it is the belief of state authorities that the mandatory vaccine will promote common welfare and is a reasonable and proper exercise of the police power.”

“While compulsory vaccination requirements have faced legal challenges since Jacobsen . . . courts have consistently rejected these challenges and given considerable deference to the use of the states’ police power to require immunizations to protect the public health.” - Congressional Research Service

This precedent has held since 1905, having most recently been the basis for mandatory vaccinations in several zip codes in New York City following a measles outbreak in 2019. But states don’t just exercise this power in times of major disease outbreaks — there are mandatory vaccinations for K-12 schoolchildren in all 50 states, as well as mandatory vaccinations for many college students and individuals that work in healthcare facilities and nursing homes. While some religious and philosophical exemptions exist, states like California and New York have ended these, citing that “religious exemptions are not constitutionally required under the First Amendment’s free exercise clause since mandatory vaccination does not single out religion and is not motivated by a desire to interfere with religion.”

In short, states almost certainly have the ability to force vaccinations within their jurisdictions and weather any legal challenges, though this doesn’t necessarily mean they will seek to do so.

Federal

The federal government would face more challenges if it wanted to mandate vaccinations for Americans, chiefly because the Constitution leaves the right to govern public health to states. But this hasn’t stopped people from musing about how, if the pandemic required, the federal government might press the issue. The federal government could, for example, take advantage of its right to regulate interstate commerce and transportation to mandate that individuals crossing state borders are vaccinated, though the Supreme Court could potentially rule that Congress was overreaching by doing so. Realistically, such a strategy seems doubtful given the legal constraints, but unprecedented times may call for unprecedented measures.

Far more likely, the federal government might exercise influence over spending in a way to incentivize states to pursue vaccination mandates. The federal government has expansive control in taxing and spending for general welfare, meaning they could tie funds distributed to states to adherence to vaccination goals. This strategy has been used in the past, such as to force states to raise the legal drinking age to 21 by withholding federal highway funding.

So, while federal measures to force vaccination seem improbable at present, they are not out of the question. In a similar vein, as many countries enact nationwide mask mandates, such a move in the U.S. would almost certainly face a strong legal challenge. This leads many to favor a strategy focused on persuasion and incentivization rather than punitive action.

Private

As with most issues of governance, there are those that favor a hands-off approach, letting the private market and personal discretion decide what’s right. The thinking here is that government mandates would be overkill, especially when businesses have rights and incentives to demand that customers vaccinate, as long as these measures are not discriminatory. As put in the Wall Street Journal, “[p]rivate entities have financial and reputational incentives to protect their employees, patrons and residents, and are therefore well-positioned to determine what protective measures, including vaccination, need to be taken in specific circumstances.” Furthermore, some argue that government action invites a higher risk of inefficiency by distorting the vaccine marketplace for personal, country-specific benefits

“Private initiatives creating narrow mandates that target those most likely to benefit from vaccines, alongside voluntary vaccination, will maximize public health while minimizing the threat to individual liberties.” - Wall Street Journal

Instead, proponents of the free market argue that positive incentives might be more effective. If someone wants to attend a sporting event, the venue may require proof of vaccination to protect against liability. Similarly, those who wish to travel by air may be forced by airlines to have a vaccination certificate or similar documentation. At a more granular level, however, this method would require many smaller businesses to follow through as well. The risk is that too few entities comply or that pockets or communities of people disproportionately skirt the needs for such action, permitting Covid-19 transmission to continue and potentially re-emerge. 

Conclusion

As governments assess how to contend with reaching effective levels of vaccination, they are preparing to tread carefully around vaccine skepticism while transparently and apolitically addressing common concerns about safety and due process. Attitudes could change as vaccines are distributed to the public and, hopefully, demonstrate safety and effectiveness, encouraging individuals to rapidly vaccinate.

For government, a heavy-handed approach could backfire, fueling further anti-government/anti-science sentiment, but not pursuing vaccination with ample vigor could mean a prolonged timeline for controlling the virus and returning to normal, raising human and economic costs. That’s why the likely approach to vaccination will lie in some combination of policies: using mandates only were strategically viable and necessary but relying on public and private incentives to reach most of the population.

 

Appendix

This appendix shows each of the articles used to inform the findings of this article, as well as how the articles scored according to The Factual's credibility algorithm. To learn more, read our How It Works page.

Title Author Publisher Publisher Bias Credibility Grade
Q&A: How far can Trump go in pushing a COVID-19 vaccine that isn’t ready? Melissa Healy LA Times Moderate Left 90%
Call to Action: CSIS-LSHTM High-Level Panel on Vaccine Confidence and Misinformation Katherine E. Bliss, J. Stephen Morrison, Heidi J. Larson Center for Strategic and International Studies Center 88%
Why Americans have grown more hesitant about the COVID-19 vaccine Laura Santhanam PBS Moderate Left 88%
Could employers and states mandate COVID-19 vaccinations? Here’s what the courts have ruled Debbie Kaminer The Conversation Center 86%
As U.S. Reaches 250,000 Deaths From COVID-19, A Long Winter Is Coming Laurel Wamsley NPR Moderate Left 86%
The Final Pandemic Surge Is Crashing Over America Robinson Meyer The Atlantic Moderate Left 85%
Biden’s Call for ‘National Mask Mandate’ Gains Traction in Public Health Circles Sheryl Gay Stolberg New York Times Moderate Left 85%
Historical Vaccine Safety Concerns N/A CDC Center 84%
Vaccine Nationalism Threatens Politicized Decisions to Fight a Global Pandemic J.D. Tuccille Reason Moderate Right 84%
Trump has launched an all-out attack on the FDA. Will its scientific integrity survive? Lev Facher STAT Center 83%
FDA commits to high safety standards in coronavirus vaccine review Cassidy Morrison Washington Examiner Moderate Right 83%
COVID-19 vaccines could become mandatory. Here’s how it might work. Jillian Kramer National Geographic Center 83%
Pfizer and Moderna Covid vaccines 95% effective in clinical trials Sukee Bennett PBS Center 81%
Black Americans face higher COVID-19 risks, are more hesitant to trust medical scientists, get vaccinated John Gramlich, Cary Funk Pew Research Center Center 80%
Why the US president can’t mandate a Covid-19 vaccine Katherine Ellen Foley Quartz Moderate Left 80%
Exclusive: Two-thirds of Americans say they won't get COVID-19 vaccine when it's first available, USA TODAY/Suffolk Poll shows Sarah Elbeshbishi, Ledyard King USA Today Moderate Left 78%
Fever, aches from Pfizer, Moderna jabs aren’t dangerous but may be intense for some Meredith Wadman Science Magazine Center 77%
What you need to know about the Moderna and Pfizer coronavirus vaccines Carolyn Y. Johnson, Aaron Steckelberg Washington Post Moderate Left 76%
Pfizer’s Art of the Deal Brent Orrell The Bulwark Moderate Right 76%
One-Third of Americans Won’t Get Coronavirus Vaccine, Poll Finds Alexa Lardieri U.S. News Moderate Left 75%
STAT-Harris Poll: Most Americans won’t get a Covid-19 vaccine unless it cuts risk by half Ed Silverman STAT Center 74%
Lower Flu Vaccination Rates Among Black, Hispanic, and Low-Income Seniors Suggest Challenges for COVID-19 Vaccination Efforts Juliette Cubanski, Tricia Neuman, Anthony Damico Kaiser Family Foundation Center 74%
KFF Health Tracking Poll - September 2020: Top Issues in 2020 Election, The Role of Misinformation, and Views on A Potential Coronavirus Vaccine Liz Hamel, Audrey Kearney, Ashley Kirzinger, Lunna Lopes, Cailey Muñana, and Mollyann Brodie Kaiser Family Foundation Center 74%
Worried About The Safety And Effectiveness Of The Covid-19 Vaccine? The SAVE Act Aims To Make Transparency A Priority Robert Glatter Forbes Moderate Right 74%
The world will soon have covid-19 vaccines. Will people have the jabs? N/A The Economist Center 59%
Is Mandatory Vaccination Legal in Time of Epidemic? Sara Fujiwara AMA Journal of Ethics N/A N/A
We Don’t Need Government Mandates for Covid Vaccination Joel M. Zinberg Wall Street Journal Moderate Right N/A
Pfizer, BioNTech Ask FDA to Authorize Their Covid-19 Vaccine Jared S. Hopkins Wall Street Journal Moderate Right N/A

Written by Phillip Meylan

Phillip is a writer, editor, and researcher. Before completing his MSc in Comparative Politics at the London School of Economics and Political Science in 2019, he worked as an editor and content strategist for the Center for Strategic and International Studies in Washington, D.C. When he’s not working, you can find him playing soccer, hiking, or cooking.

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