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The U.S. Has A Long Precedent For Vaccine Mandates

ASMA KHALID, HOST:

States, cities, universities and even individual employers across the country are considering vaccine mandates in an attempt to drive up vaccination rates and protect people from contracting COVID. But the very mention of a mandate is prompting protests. Some people argue it would be a violation of their civil liberties, although our next guest says history may not be on their side. Lawrence Gostin is a professor of global health law at Georgetown University. He joins us now. Welcome, Professor Gostin.

LAWRENCE GOSTIN: Thank you very much for having me. I appreciate being with you.

KHALID: I gather there's two centuries of legal precedent on whether states are allowed to mandate vaccines. I used to actually live in Massachusetts, and I recall hearing quite a bit about this case from the early 1900s that went all the way up to the Supreme Court. Wasn't it about this very issue?

GOSTIN: It was. And, you know, the first vaccine mandate law was enacted in the United States in 1809 for smallpox. But the Supreme Court in 1905 in a very famous case called Jacobson v. Massachusetts upheld a Cambridge City law, which required smallpox vaccination. That was something where the Supreme Court said that we don't have a right to place other people at risk. And by 1922, in another case, Justice Brandeis, writing for unanimous court, upheld childhood school mandates, calling it settled law.

KHALID: Just this month, the Supreme Court, in fact, declined to take up a case that was challenging a vaccine mandate at Indiana University. Do you interpret this as being a sign that the courts are willing to stand by other mandates?

GOSTIN: I think the courts will absolutely support and uphold vaccine mandates, particularly in the private sector, and they also will when states and cities require vaccines. But I should say that it's a misconception that President Biden has the power to have a nationwide vaccine mandate. Traditionally, vaccine mandates have been imposed by cities and states.

KHALID: Meaning, he does not have the authority to require every citizen of the United States to be vaccinated, or that just historically it's been done at a state and city level?

GOSTIN: I think both. States and cities have the power to regulate public health even before the Constitution was ratified. And the federal government has no power to reach into a state and require all the citizens of that state or the entire country to be vaccinated.

KHALID: So, professor, let me ask you about the reverse. Do states, do local cities have the authority to ban vaccine mandates or to ban proof of vaccinations?

GOSTIN: Both Florida and Texas's ban on mandates are on hold because the courts have temporarily blocked them. These are, on their face, irrational laws because, you know, they basically ban a scientifically proven intervention. But on the other hand, states have traditionally had very considerable authority to regulate local governments and businesses in their states. But in this case, it just - you know, for the judges, it just may be a bridge too far.

KHALID: I think when people hear the word mandate, it feels very strong and that there's a sense that there's no escaping it, no exemption from it. But the United States has a history of, for example, religious exemptions to vaccine mandates. So what is the history there?

GOSTIN: The Equal Employment Opportunity Commission has ruled that businesses can require vaccines, but they have to offer a religious exemption. Most states, for childhood vaccinations, do offer religious exemptions, and, of course, everyone requires medical exemptions. But states don't have to give a religious exemption. The courts have upheld states like New York, California and West Virginia who literally eliminated religious exemptions.

KHALID: Before I let you go, I want to ask you one final question. And I wanted to ask, what the future you see looks like for vaccine mandates?

GOSTIN: Yeah, I think in the immediate future, throughout this year and into next, we're going to see mandates very widely imposed throughout the public and private sector workforce. I absolutely predict that in a year or two, CDC will recommend COVID-19 vaccines as part of the required vaccination of children as a condition of going to school. And most states, but not all, will comply with that.

KHALID: That's Lawrence Gostin, Georgetown University's professor of global health law. His new book, "Global Health Security," is out in September. Thank you so much for being with us.

GOSTIN: Thanks for having me. I appreciate it.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.