COVID-19 Vaccine


With the recent rollout of the first batch of the COVID-19 vaccine, many are wondering whether the government can require individuals to take the vaccine, or any vaccine for that matter. Klenda Austerman attorney, Michael Baumberger addresses this question through the lens of a previous court ruling for the smallpox vaccination.

Can the government require individuals to take a COVID-19 vaccine? The short answer is yes, states can pass laws requiring individuals to be vaccinated. However, such laws are not without limitation.

It is the states, not the federal government, that have the general authority to enact laws requiring vaccination through their police powers, which allow states to regulate matters affecting health, safety and the general welfare of the public. To this end, many states have already passed laws requiring child vaccination as a condition for school attendance. In Kansas, for instance, children must receive such vaccinations as the secretary of the state Department of Health and Environment deems necessary in order to attend school, unless the child is exempted on religious or medical grounds.

In 1905, the United States Supreme Court issued its most significant decision upholding a mandatory smallpox vaccination law in the case of Jacobson v. Commonwealth of Massachusetts. The Court stated that  “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 free 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.”

In this vein, the Court recognized the fundamental principle that persons and property are subject to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state. However, the Court also noted several limitations on mandatory vaccination laws: (1) the law must be necessary for the public health and safety (i.e. to stop the spread of disease); (2) the law must have a real or substantial relationship to the objective of public health and safety; (3) the law may not be exercised in an arbitrary, unreasonable manner such that it goes beyond what was reasonably required for the safety of the public (i.e. mandated on individuals who are unfit for such vaccination) and (4) the law cannot be a plain and palpable invasion of rights secured by the Constitution.

While it does not appear likely at this time that states will make the COVID-19 vaccination mandatory, the foregoing makes it clear that the states could do so under their police powers as long as the law passes the Constitutional muster set out in Jacobson and its progeny.