united-states criminal-law medical
Can a vaccine be required by law?
<p>This question came up because I read that Bolsonaro, Brazil's president, was criticized by the opposition for saying that COVID-19 vaccinations won't be mandatory. The opposition said that the vaccine should be a requirement, which means that if they were in power, then everyone in Brazil would be forced to get vaccinated.</p>
<p>Specifically for the United States, is it possible that getting vaccinated become a law? In other words, I would be breaking the law if I decide not to get vaccinated.</p>
<p>Is something like this remotely possible?</p>
<p>The reason I ask: countries are trying to develop a vaccine as fast as humanly possible and <em>possibly</em> trying to cut corners to have the vaccine approved. Superpowers like the US, Russia, and China are all making claims.</p>
<p>Here in the US, being an election year, <a href="https://www.nytimes.com/article/covid-vaccine-a-b.html" rel="noreferrer">the CDC is already saying that two unidentified vaccines will be available in October or November</a>. I feel this is being done in a hurry, and I wouldn't want the government to force me to get vaccinated with a brand-new drug with limited testing.</p>

<p>It was decided back in 1905 in the case of <a href="https://supreme.justia.com/cases/federal/us/197/11/" rel="noreferrer">Jacobson v Massachusetts</a>, 197 U.S. 11, that mandatory vaccination laws are constitutional in the US (the specific example being mandatory smallpox vaccination - through vaccination, this illness was eradicated globally). The court observed that</p>
<blockquote>
<p>in every well ordered society charged with the duty of conserving the
safety of its members the rights of the individual in respect of his
liberty may at times, under the pressure of great dangers, be
subjected to such restraint, to be enforced by reasonable regulations,
as the safety of the general public may demand. An American citizen,
arriving at an American port on a vessel in which, during the voyage,
there had been cases of yellow fever or Asiatic cholera, although
apparently free from disease himself, may yet, in some circumstances,
be held in quarantine against his will on board of such vessel or in a
quarantine station until it be ascertained by inspection, conducted
with due diligence, that the danger of the spread of the disease among
the community at large has disappeared.</p>
</blockquote>
<p>The power of the government to protect is not totally unfettered: its actions must be necessary.</p>
<blockquote>
<p>Smallpox being prevalent and increasing at Cambridge, the court would
usurp the functions of another branch of government if it adjudged, as
matter of law, that the mode adopted under the sanction of the State,
to protect the people at large was arbitrary and not justified by the
necessities of the case. We say necessities of the case because it
might be that an acknowledged power of a local community to protect
itself against an epidemic threatening the safety of all, might be
exercised in particular circumstances and in reference to particular
persons in such an arbitrary, unreasonable manner, or might go so far
beyond what was reasonably required for the safety of the public, as
to authorize or compel the courts to interfere for the protection of
such persons.</p>
</blockquote>
<p>An attack on a mandatory vaccination law would probably focus on the question of necessity.</p>

<p><strong>Yes.</strong> In its 1904 term, the Supreme Court upheld the constitutionality of a Massachusetts law requiring small pox vaccinations in <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep197/usrep197011/usrep197011.pdf" rel="noreferrer">Jacobson v. Massachusetts</a>. The Court held that the law did not violate the 14th Amendment by depriving Jacobson of his &quot;liberty&quot; without &quot;due process of law.&quot;</p>
<p>In upholding compulsory vaccination, the Court used the &quot;police power&quot; analysis that is standard in cases involving the due process clause. It held mandatory vaccination was a &quot;reasonable&quot; exercise of the &quot;police power,&quot; the power to regulate for the &quot;good and welfare of the Commonwealth.&quot; It added that &quot;the legislature&quot; was &quot;primarily the judge&quot; of when and how to use this power. Courts could only step and overturn a statute if it was so &quot;arbitrary&quot; and &quot;unreasonable&quot; as to be &quot;oppressive.&quot; In reviewing legislative decisions about the police power, the court had to be mindful of the separation of powers. It was &quot;no part&quot; of the judicial &quot;function&quot; to worry about the &quot;expediency&quot; or effectiveness of a statute.</p>
<p>Here is how the majority described the police power:</p>
<blockquote>
<p>in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great, dangers, be subjected to such restraint, to be enforced by reasonable regulations, as
the safety of the general public may demand</p>
</blockquote>
<p>Here is how the Court dealt with the claim that these regulations were unconstitutional because they interfered with liberty:</p>
<blockquote>
<p>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. 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.</p>
</blockquote>
