The Constitution “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, known for defending civil liberties, wrote. “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”
The State of Vaccine Mandates in the U.S.
- Vaccine rules. On Aug. 23, the F.D.A. granted full approval to Pfizer-BioNTech’s coronavirus vaccine for people 16 and up, paving the way for mandates in both the public and private sectors. Such mandates are legally allowed and have been upheld in court challenges.
- College and universities. More than 400 colleges and universities are requiring students to be vaccinated against Covid-19. Almost all are in states that voted for President Biden.
- Schools. California became the first state to issue a vaccine mandate for all educators and to announce plans to add the Covid-19 vaccine as a requirement to attend school, which could start as early as next fall. Los Angeles already has a vaccine mandate for public school students 12 and older that begins Nov. 21. New York City’s mandate for teachers and staff, which went into effect Oct. 4 after delays due to legal challenges, appears to have prompted thousands of last-minute shots.
- Hospitals and medical centers. Many hospitals and major health systems are requiring employees to get vaccinated. Mandates for health care workers in California and New York State appear to have compelled thousands of holdouts to receive shots.
- Indoor activities. New York City requires workers and customers to show proof of at least one dose of the Covid-19 for indoor dining, gyms, entertainment and performances. Starting Nov. 4, Los Angeles will require most people to provide proof of full vaccination to enter a range of indoor businesses, including restaurants, gyms, museums, movie theaters and salons, in one of the nation’s strictest vaccine rules.
- At the federal level. On Sept. 9, President Biden announced a vaccine mandate for the vast majority of federal workers. This mandate will apply to employees of the executive branch, including the White House and all federal agencies and members of the armed services.
- In the private sector. Mr. Biden has mandated that all companies with more than 100 workers require vaccination or weekly testing, helping propel new corporate vaccination policies. Some companies, like United Airlines and Tyson Foods, had mandates in place before Mr. Biden’s announcement.
In the court of public opinion, there was no such resolution.
The polio vaccine was less controversial, mainly because it wasn’t initially mandated and because it had been funded by a widely respected nonprofit: the National Foundation for Infantile Paralysis, now called the March of Dimes. This reduced opposition based on mistrust of pharmaceutical companies, and most parents willingly got their children vaccinated. The measles vaccine, too, was not particularly controversial because mandates were not initially enforced.
“Nobody was enforcing vaccination, and so it simply didn’t elicit that mistrust,” Professor Conis said. In the smallpox era, by contrast, “skeptical people said, ‘Well, why are we doing this? It just benefits the companies making the vaccine and the doctors administering the vaccine, and why should we trust any of them?’”
But the fear and anger came roaring back with the introduction of childhood vaccination mandates in the 1970s. By 1980, all 50 states required schoolchildren to be vaccinated against an array of diseases.
None of it is new, but one thing distinguishes today’s anti-vaccination protesters from those of the past. The opposition was always political. It wasn’t always partisan.
“There are plenty of echoes today: There are liberty claims, there are strong sentiments about parental rights, there are concerns about the science, there are concerns about the profit involved,” Professor Willrich said. “But this party divide in terms of who is most likely to be hesitant or refuse a vaccine mandate is really, I think, something of our own 21st-century moment.”