American Heritage Essay Winner: The Constitutionality of Vaccine Mandates

Editor’s Note: The following is the winning essay in the 2021 American Heritage Scholarship Series essay contest. It was written by Oakdale High student Emma Lowe, who wrote on this year’s topic: Mandatory vaccine mandates.

In the 1700s, a deadly epidemic hit the United States, killing 3 out of every 10 people infected and leaving the survivors with painful sores and large scars. This virus was smallpox, a disease that was seemingly unpreventable at the time; that was until a British doctor named Edward Jenner created the first vaccine in 1796 (CDC, “History of Smallpox”). Using material from the similar, but much less deadly virus, cowpox, Jenner inoculated his patients with the first ever vaccine. The shot effectively immunized them against the fatal smallpox. After successful vaccination campaigns throughout the 19th and 20th centuries, the World Health Assembly declared that the disease had been eradicated globally in December 1980 (“Smallpox”). The use of vaccines has expanded greatly, with commonly used vaccines for chickenpox, influenza, measles, and polio saving countless lives every year. Such childhood immunizations are even required at most public and private schools before students can attend.

In January of 2020, a new virus hit the nation, called COVID-19; a respiratory illness that would spread like wildfire across 50 states and the rest of the world, shutting down businesses and trapping millions of citizens in their houses for months. But, because of the modern day widespread use and study of vaccines, pharmaceutical and virology research companies were able to produce a vaccine in record time, less than a year after the initial outbreak. Millions of Americans rushed to get vaccinated in order to stop the spread of this virus and to protect themselves. However, even now, with over 181 million Americans fully vaccinated against COVID 19, the virus continues to spread throughout our country.

So what is the problem? An anti-vaccine movement led to only 55.2% of the nation being fully vaccinated, allowing the virus to continue spreading and mutating among the other 44.8% of unvaccinated Americans (Mayo Clinic, “U.S. COVID-19 Vaccine Tracker”). The question then becomes: Does the government have the constitutional right to mandate vaccines, and if they do, should they? Vaccine mandates can be simplified to the questions of why, what, and who. Or in other words: Why should the COVID-19 vaccine be mandated? In addition, what level of government should be the one to issue the mandate, federal or state? And who, if anyone, should receive exemptions? Current science, as well as historic precedent regarding the U.S. Constitution, has shown the answers to these questions: in order to prevent the spread of the Coronavirus, vaccines should be mandated on the state level with little to no religious or philosophical exemptions.

The question of why there should be a vaccine mandate in the first place can be answered by looking at the evolution of the COVID virus throughout the past year and a half. According to the Associated Press, unvaccinated individuals accounted for about 99.9% of current COVID-19 hospitalizations (Johnson, “Nearly All COVID Deaths in US Are Now Among Unvaccinated”). So, the need for a vaccine mandate is clear when looking at these numbers, as the virus will never be under control with so many hospitalization-level cases. As well as preventing hospitalizations, the vaccines have been proven to be 95% effective in protecting against the virus in those who are vaccinated; as stated by Erwin Chemerinsky, the Dean of University of California Berkeley School of Law, in the video lecture, “If there are one hundred people who are unvaccinated who get COVID, five who are vaccinated would get COVID” Meaning that, in addition to greatly lowering the chances of contracting the virus, the COVID vaccine also makes breakthrough cases far less severe.

So if vaccines are really this effective, why do people refuse to get them? One possible explanation was the concern surrounding the Food and Drug Administration’s Emergency Use Authorization, rather than full approval, of the first COVID vaccines. Some individuals claimed to not trust what they viewed as a “rushed” approval process. But with the full FDA approval of the Pfizer vaccine issued in August of 2021, there are still many holdouts. It has become more obvious than ever that the main reason for being unvaccinated is not health or safety related, but rather it is political.

Regardless of the reason for a person’s vaccine hesitation, the necessity and constitutionality of a vaccine mandate is clear. Making the next question: Should mandates be enforced at the federal level, or if it is best left to each state to decide? Although many people have called for a federal mandate, as it would provide one unified national response to the problem, the US Constitution, and precedent better support mandates at the state level. Obviously the Constitution, a document created in 1776, doesn’t explicitly mention the government’s power to mandate vaccines, so we instead must apply constitutional principles to modern problems. One part of the Constitution that points towards mandates at the state versus the federal level is the Tenth Amendment, which states that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” (U.S. Constitution, amend. 10).

Often cited in states’ rights arguments, this amendment gives individual states the power to make decisions about problems not specifically mentioned in the Constitution based on what is best for their residents. Then the argument becomes: are vaccine mandates within the power of the state governments, or do they infringe on personal liberties? The Supreme Court Case Jacobson v. Massachusetts sets the precedent for this issue, declaring that, “It is within the police power of a state to enact a compulsory vaccination law”(1905). This integral case limits the power of the individual when their actions can have a negative effect on those around them. This essentially means citizens must sacrifice some of their individual liberty in the name of the “common good”.

Despite many workplaces already requiring employees to be vaccinated for COVID, some companies have gotten around these requirements by allowing religious or medical exemptions. These kinds of exemptions have existed long before the COVID-19 vaccine though. In some states, schools allow students to remain unvaccinated for different reasons: all fifty states allow medical exemptions, forty-five states allow religious exemptions, and nineteen allow philosophical or personal belief exemptions (Findlaw, “School Vaccine Exemption Laws by State). But, key Supreme Court cases like Oregon v Smith cement the idea that states do not legally have to provide vaccine exemptions to their residents. The Smith case stated that a law does not violate an individual’s First Amendment rights, “If the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons” (1990). So, a state government could legally issue a vaccine mandate without allowing for religious or philosophical exemptions, as long as the mandate is not specifically targeting any individuals based on their religious beliefs.

Although there is a great deal of legal backing for states’ rights to mandate the COVID vaccine, many people still oppose that plan. Some believe that it would be infringing on their personal freedom and bodily autonomy. But there are already laws in place that effectively place public safety over the rights of individuals, including the aforementioned immunization mandates for children in schools and seatbelt laws. Mandating seatbelts may seem very different from mandating vaccines, but there are similarities between the two. There was a similar pushback to the 1986 seat belt laws, including some of the same arguments used against COVID vaccines about personal liberty and individual rights. In the Iowa Supreme Court case of State v Hartog, Hartog claimed that requiring seat belts violated his Fourteenth Amendment right to privacy, and exceeded the police power of a state. But the court ruled against him, stating that the law was constitutional (1989). This further contributed to precedent declaring that public health and wellness mandates are, in fact, constitutional.

One argument against leaving the power to mandate vaccines with individual states is that many would choose not to enact vaccine requirements or a state could create very weak rules. This is supported by the fact that as of September 16, 2021, only 10 states in the union have reimposed mask mandates, even though COVID cases are back on the rise, with a current weekly average of 146,182 cases, even though mask-wearing has been proven to help prevent the spread of the virus (CDC, “Vaccinations > Variants”). However, the Spending Power clause of the Constitution gives the federal government the ability to promote states vaccine mandates by providing grants to those states that create COVID vaccine mandates (“The Federal Spending Power”). In this way, the federal government plays its role in eradicating the virus by incentivizing the creation of mandates at the state level.

Vaccine mandates are effective in preventing illness and protecting public health. They also have strong legal backing in both federal and state courts. Furthermore, the Constitution illustrates that these vaccines should be mandated at the state, rather than the federal, level without religious or philosophical exemptions; mandates are supported by the Tenth Amendment as well as Supreme Court cases like Jacobson v Massachusetts and Smith v Oregon. As Thomas Jefferson once said, “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution” (Fair Copy of the Kentucky Resolutions of 1798). Whenever there is a dispute about power with regards to people versus the government, individual opinions should not guide decisions. Instead, citizens should trust the Constitution to lead them on the path towards the greater good.