Freedom does not include a right to endanger others. COVID vaccines should be mandatory

No one’s freedom provides the right to endanger others. That is the point of the adage that my right to swing my fist ends at another person’s nose. The government always has the power to impose restrictions on behavior to protect other people from harm, including to stop the spread of a communicable disease. Yet these basic principles are forgotten by those who opposed a mask mandate and who now are trying to prohibit vaccine passports.

Indeed, the government can and should require that everyone be vaccinated against COVID.

There is no constitutional right to refuse to wear a mask in public. Scientific studies conclusively demonstrate that masks lessen the spread of COVID. Yet, astoundingly, opposition to wearing masks has been championed as an exercise of personal freedom and mask mandates have been repealed as part of protecting this liberty. From a constitutional perspective, that is just nonsense. There is no right to risk infecting others with a deadly disease.

Opinion

Nor is there any constitutional limit on the ability of the government to require that everyone be vaccinated. In Jacobson v. Massachusetts, in 1905, the Supreme Court considered a constitutional challenge to a law requiring that people be inoculated against smallpox. A minister challenged this requirement, saying it unconstitutionally infringed his liberty and his right to control his body and his health. The Supreme Court decisively rejected this argument and held that in order to protect public health, the government may require inoculations against communicable diseases. It declared: “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.”

Since then, there have been many challenges to compulsory vaccination laws, such as when they are required to attend school. Virtually without exception, the laws have been upheld, even if they have no exceptions for religious or conscience objections to vaccinations. Every court has stressed the government’s compelling interest in stopping the spread of communicable diseases.

The government can and should require that everyone be vaccinated against COVID, unless there is a medical reason why this is inadvisable for a specific person. To this point, 563,000 people in the United States have died from COVID at this time. The epidemic cannot end until enough people are vaccinated to produce “herd immunity.”

Yet, there is little public advocacy of mandatory vaccinations. The misguided claims of personal freedom are chilling such discussion. At this point, there still is not enough vaccines available for everyone who wants it. But soon there will be enough for all and at that point, the government should act to mandate vaccinations.

Short of a general government mandate, employers can require vaccinations for their employees and schools can require it of teachers and students. I fully expect that my campus, and likely the entire University of California system, will require vaccinations to return in the Fall.

Similarly, those holding public events, such as concerts and sports, or those with businesses, can require proof of vaccination as a condition for admission. So-called “vaccine passports” are an easy way to accomplish this, but states like Texas and Florida have acted to prohibit these. Again, this is based on the mistaken sense that people have a right to refuse to be vaccinated. It puts the freedom of those who choose not to be vaccinated ahead of the freedom of those who wish to limit their services to those who have been inoculated against COVID.

Of all of former President Donald Trump’s wrongdoing, nothing was worse than politicizing a communicable disease. Instead of unifying the country to stop COVID, Trump minimized it and fueled false claims of freedom. A recent study shows that 40% of Marines are refusing to be vaccinated. That surely reflects the politics of those who enlist in the military.

It is time to focus on the duty we all have to protect each other and to end this pandemic. The government should require vaccinations as soon as vaccine supplies allow, and we should remind everyone that freedom does not include a right to endanger others.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.