The Biggest Threat to a Coronavirus Vaccine Is the American People
The derangements of our current era could threaten the rock-solid legal precedents that provide states with the right to act in the interests of public health.
by Matt Ford
President Donald Trump claims that a coronavirus vaccine will be available by the end of the year. Anthony Fauci, the country’s top infectious disease expert, expects one within 18 months. Most other experts believe those are optimistic timelines at best, even as countries and companies pour resources into programs to find one. Until one is developed by researchers and approved by regulators, the pandemic will not truly be over.
To make matters worse, developing a coronavirus vaccine will only be half the battle. The other half will be getting people to actually take it. A survey released Wednesday by the Associated Press and the NORC Center for Public Affairs Research suggests that it may be an uphill fight. Only 49 percent of Americans said they planned on getting a coronavirus vaccine when it becomes available, according to the poll, while 31 percent said they were unsure. Perhaps the most troubling finding was that 20 percent of Americans said they would not get the vaccine at all.
If large numbers of Americans opt out of getting a coronavirus vaccine, states may feel pressure to invoke moribund laws that allow local health officials to order mandatory vaccinations. The Supreme Court has long upheld such orders, concluding that the states’ duty to safeguard public health in a pandemic outweighs the infringement upon an individual’s personal liberty. But not all of the constitutional questions around mandatory vaccinations are settled, including the role that religious exemptions might play. In today’s political and cultural environment, such a challenge might find a more receptive audience on the Roberts court—and among the Trump-aligned right.
In theory, the states are on solid legal and constitutional footing to compel vaccinations in the interest of public health. In 1902, health officials in Cambridge, Massachusetts, ordered mandatory smallpox vaccinations after a local outbreak of the disease. Henning Jacobson, a local pastor, refused them for himself and his son. After his arrest, he questioned the safety and efficacy of the smallpox vaccine and claimed that forcing him to receive it violated the Fourteenth Amendment. Three years later, the Supreme Court ruled in Jacobson v. Massachusetts that mandatory vaccination was a legitimate use of the state’s police powers.
“The 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,” Justice John Marshall Harlan wrote for the court. “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.”
Jacobson was one of the earliest major cases to discuss police powers, which the court defined as the state’s ability to make “such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” In the 1922 case Zucht v. King, the court sided with a San Antonio school district that refused to admit a student who hadn’t been vaccinated. Justice Louis Brandeis, writing for the court, said that Jacobson had “settled” that it fell “within the police power of a state to provide for compulsory vaccination.” Zucht laid the legal groundwork for today’s requirements that students receive a slate of vaccinations before attending public schools.
The high court has not heard a major case on mandatory-vaccination orders of any kind since Zucht, and for good reason. Thanks to medical advancements in the twentieth century, infectious diseases that once periodically struck American cities, such as cholera and yellow fever, are no longer endemic on this continent. Smallpox, the scourge that prompted Cambridge officials to order Jacobson’s vaccination more than a century ago, was eradicated in 1980. Many states still retain the power to compel mass vaccinations in a public health emergency; the Florida Department of Health recently reasserted its authority to do so in an executive order issued last month by Governor Ron DeSantis.
Even before the coronavirus, however, states wrestled with a newer challenge to public health: the resurgence of the anti-vaccine movement. Fueled by a discredited study claiming a link to autism, as well as a deluge of misinformation on the internet, anti-vaxxers in the U.S. and Europe have contributed to a decline in overall vaccination rates. As a result, some childhood diseases that had previously been kept in check by herd immunity have begun to make a resurgence. In 2018 and 2019, New York experienced its worst measles outbreak in almost three decades, which infected hundreds of children and spread to other states.
Many of the New York cases arose in two Orthodox Jewish communities with low vaccination rates in and around New York City. While every state has mandatory vaccination laws for schoolchildren, all but five of them allow exemptions for religious or personal beliefs, according to the National Conference of State Legislatures. New York became the fifth state last July, when lawmakers scrapped its religious exemption in response to the measles outbreak. A state court dismissed a legal challenge to the change in December, citing Jacobson and Zucht and asserting that the law wasn’t driven by “religious animus” simply because it repealed a privilege afforded to religious groups.
State and federal courts have largely upheld stay-at-home orders during the coronavirus pandemic in recent months, citing the same Supreme Court precedents. At the same time, conservatives have increasingly raised religious-freedom challenges to the emergency orders, especially when church gatherings are involved. Some have even succeeded. Judge Justin Walker, a federal judge in Kentucky and current U.S. Court of Appeals for the District of Columbia Circuit nominee, blocked the city of Louisville from enforcing some restrictions on Easter services last month. In his hyperbolic ruling, he all but accused Mayor Greg Fischer of criminalizing Christianity, in a wide-ranging meditation on the history of religious liberty in America.
The religious-freedom challenges to anti-pandemic measures have drawn sympathy from the Trump administration. Trump demanded last week that governors lift restrictions on in-person religious services, declaring houses of worship to be “essential” and warning that he would “override” the states if they didn’t comply. While Trump’s override threat was legally hollow, Attorney General Bill Barr has warned states that the Justice Department might intervene in cases where it thinks states have gone too far in restricting access to religious services. The department’s Civil Rights Division sent letters to California and other states in recent days that expressed concern about the impact on religious freedom.
The Supreme Court is also generally receptive to religious-freedom claims brought by plaintiffs who aren’t Muslim. The court’s conservative justices are already poised, this term, to strike down state constitutional amendments that block religious schools from receiving taxpayer funds, which would mark a portentous shift on church-state separation. Next term, the court will hear Fulton v. City of Philadelphia to decide whether Employment Division v. Smith should be overturned. In Smith, the court held that the First Amendment’s Free Exercise Clause can’t be invoked by litigants to carve out religious-freedom exemptions to “neutral laws of general applicability.” Though Justice Antonin Scalia wrote the court’s majority opinion in the 1990 case, the court’s other conservatives have since signaled their disapproval of it.
None of this necessarily means that the Supreme Court is poised to upend its long-standing precedents on the state’s ability to confront pandemics or mandate vaccinations. But the court has never directly ruled upon religious objections to mandatory vaccinations, and it’s likely that legal activists will at least try to bring the issue before the justices once a coronavirus vaccine is available. Anti-vaxxers, who were once more commonly associated with the American left, have made common cause with conservative protesters who opposed stay-at-home orders over the past two months. And while few of the major American religious traditions formally oppose vaccination, individual believers may still find reasons for concern. In an op-ed for The Federalist earlier this month, Reverend Gifford Grobien noted that some vaccines are produced using cell lines that came from post-abortion fetal tissue, arguing that it showed why states should allow for religious exemptions to vaccination for Christians.
To complicate matters further, Trump and conservative media outlets have already sought to turn public health measures like mask-wearing and social distancing into another front in the culture wars. In recent days, Trump derided former Vice President Joe Biden for wearing a mask in public over the Memorial Day weekend and claimed a White House reporter who wore one was being “politically correct.” The president also has a long history of publicly disputing the scientific consensus on vaccines and even reiterated concerns about the disproven link to autism. If he and his allies find political value in stoking fears and doubts about a coronavirus vaccine when it becomes available, then a safe way out of this crisis might be even further out of reach.