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Like most people, I expect, I am excited by the prospect that a vaccine against COVID-19 will rescue us from this purgatory of a year, perhaps in the relatively near future. I have no insight when that might be, and I hope the line doesn't form alphabetically because for once. I don't want to be the first.
At this point during the "New Abnormal," I am pleased to see Event Safety Alliance members starting to reopen some indoor venues as well as outdoor events. In my own practice, I am genuinely thrilled to help several clients plan safe and healthy events for this Fall. Sweet humanity!
What Does a Vaccine Do?
About that vaccine. It's actually a two-part issue. First, the smart scientists obviously need to create a vaccine that is effective at fighting COVID-19 and doesn't make us sick in some other way. Second, there is the matter of getting it into enough people to create "herd immunity." Here is how an entire society develops immunity to a disease, according to the U.S. Department of Health and Human Services:
Germs can travel quickly through a community and make a lot of people sick. If enough people get sick, it can lead to an outbreak. But when enough people are vaccinated against a certain disease, the germs can't travel as easily from person to person - and the entire community is less likely to get the disease.
That means even people who can't get vaccinated will have some protection from getting sick. And if a person does get sick, there's less chance of an outbreak because it's harder for the disease to spread. Eventually, the disease becomes rare - and sometimes, it's wiped out altogether.
I interpret this to mean that everyone who can get vaccinated should do so, to protect both themselves and people who cannot get vaccinated for one reason or another.
So I've been thinking about how the vaccine will be distributed, and how to maximize the number of people who will get vaccinated. The sooner we achieve herd immunity through a vaccine (as opposed to letting people do what they want until they get sick or die - looking at you, Governor Noem), the sooner we can all get back to work and throw our doors wide open again.
Jacobson to the Rescue
An old U.S. Supreme Court case may help. In Jacobson v. Massachusetts, a pastor in Cambridge, MA refused to get a compulsory smallpox shot during an outbreak at the turn of the 20th century. He violated a local ordinance and was fined $5. Rather than pay it or get his shot, he sued the state, claiming that the vaccine requirement violated his liberty interest guaranteed by the Preamble to the Constitution.
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The highest court in the country disagreed. The Court first noted that the words "life, liberty, and the pursuit of happiness" were not enforceable rights, they were a preface to the rest of the document, whose language at the time did enumerate the rights of (some) citizens. If you remember me saying this Spring that no one has a "liberty interest" in refusing to wear a face covering, this is the reason - the Preamble is noble language, nothing more.
Next, the Court addressed the question of the state's authority to regulate public safety during a public health crisis. The short answer is that states have nearly unlimited authority in this area. Jacobson has some wonderful passages about individual rights when they conflict with the rights of society.
The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best... But 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. 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.
Since March, Jacobson has gotten quite a workout. A pastor in California sued the state and local government by claiming that stay-at-home orders violated his First Amendment right to speak, assemble, and practice religion as he chose. He lost. The court upheld executive orders banning mass gatherings because they "flow[ed] from a larger goal of substantially reducing in-person interactions." During a health crisis, "government officials must ask whether even fundamental rights must give way to a deeper need to control the spread of infectious disease and protect the lives of society's most vulnerable" and such measures deserve judicial deference even when they "encroach on otherwise protected conduct" and "even when thoughtful minds could disagree about how to best balance the scales."
Jacobson will usually result in a state health law being upheld, but there are limits. An Alabama stay-at-home order that required postponement of all non-emergency dental, medical, or surgical procedures was successfully challenged on the basis that it effectively outlawed all abortion procedures in the state. The court held that "if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."
No recitation of bizarre behavior would be complete without a case from Arizona. (The quip goes, "you can't spell 'crazy' without AZ.") A gentleman in Flagstaff claimed that even our really lame restrictions infringed on his due process right to "wander about without any specific purpose." Actually, they didn't. Jacobson was cited among other authorities to uphold the state's right to enact reasonable health and safety regulations, denying the claim by this footloose would-be constitutional scholar.
Laws Are Not Self-Enforcing
Let's recap. A case that has been around a long time, which exactly addresses our current situation, upholds the authority of states to require people to get vaccinated. And that old case has recently been applied specifically to COVID-19. Jacobson v. Massachusetts is, as we lawyers say, "squarely on point."
So we're good, right? Once there is a vaccine, everyone gets their shots - herd immunity right away - big party?
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No?
Alas, no. Laws do not enforce themselves. Anyone who has been stiffed on a bill knows the feeling of having the law on your side, but being unable to compel compliance anyway. Jacobson, and the recent cases that have applied it, all stand for the legal right of a state to put society's health interests above any individual's interest in not getting vaccinated during this pandemic. (This really is a state issue - despite certain elected officials' occasional wrong pronouncements, the U.S. federal government has no authority to compel any behavior in the name of public health.) Enforcement, however, is a separate matter.
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