Will The Courts Once Again Take Up The Issue of Mandatory Vaccination?

Jeffrey A. Singer

The first‐​in‐​the‐​nation case against mandatory COVID vaccination was filed today by a Dona Ana County, N.M. detention officer who claims he was fired for refusing to receive the first dose of the mRNA vaccine. Last month the County Manager mandated vaccination of all county‐​employed first responders—which includes sheriff’s deputies, firefighters, and detention officers.

According to a report in the Las Cruces (N.M.) Sun‐​News, the plaintiff, Isaac Legaretta, argues that the Centers for Disease Control and Prevention’s advisory committee stated that vaccines given emergency use authorization should not be mandated. Further, the plaintiff points to federal law protecting the right of patients to refuse administration of any unapproved product, asserting that emergency use authorization is not the same as formal approval.

The County Manager’s office contends that, unless special working arrangements are made for those refusing vaccination, “being vaccinated is a requirement and a condition of on‐​going employment with the County due to the significant health and safety risks posed by contracting or spreading COVID-19.”

As I have written:

In a free society, no person should initiate force against another, and should use force only in retaliation or self‐​defense. Forcibly injecting substances into someone else’s body cannot be justified as an act of self‐​defense because there is no way to determine if the person will ever be responsible for disease transmission.

On the other hand, people cannot be forced to associate with someone they consider—rightly or wrongly—to be a threat to their health. And employers cannot be forced to employ people they consider a threat to the health of their customers, clients, other employees, or themselves.

Advocates of mandatory vaccination often point to the landmark 1905 U.S. Supreme Court decision in Jacobson v Massachusetts to claim that states may mandate vaccination. Actually, the decision was more nuanced. The Court upheld the Massachusetts Supreme Judicial Court’s finding that the state did not have the power to vaccinate by force a person that “deem[s] it important that vaccination should not be performed in his case.” However, the state could require the person to pay a nominal fine, which it did not consider a violation of that person’s “fundamental right.” In that case, in which the city of Cambridge, Massachusetts instituted compulsory smallpox vaccination, Henning Jacobson, after losing in the Massachusetts Supreme Judicial Court, took his case to the U.S. Supreme Court. He ultimately paid a fine but did not get vaccinated.

While I have been very impressed with the efficacy and safety of the new COVID-19 vaccines and encourage people to get vaccinated as quickly as possible, I respect the right of individuals to refuse vaccination along with the right of others to refuse to associate with unvaccinated individuals.

It will be interesting to see how this case plays out.