Mandates and Liberty: A Historical Examination of Vaccine Mandates (Bauervic Essay Contest winner)

The Founding Fathers stated in their Preamble to the United States Constitution they hoped to “secure the Blessings of Liberty” for generations to come (U.S. Const. pmbl.). As Americans, we have been gifted with numerous liberties, nonexistent in other areas of the world. Most Americans take these freedoms for granted to speak at their own free will or practice the religion of their choosing. However, as COVID-19 sparked conversations and legislation surrounding a vaccine mandate, this topic of which freedoms Americans possess and how far those freedoms reach has become a popular and highly-politicized discussion. Knowing where to draw the line when it comes to vaccine mandates requires a further examination beyond that simple line from the Preamble to the Constitution to understand if and how vaccine mandates violate personal liberties. Those that argue in favor of vaccine mandates for the COVID-19 vaccination, often point to historical examples where vaccine mandates have been implemented. Despite using vaccine mandates historically, these mandates have been used under circumstances and conditions that differ from the most recent predicament with COVID-19 and cannot be used to justify a mandate for the entire population.
Vaccine mandates have historically been implemented in the military. One controversial vaccine mandate came in 1998, when the Department of Defense launched the Anthrax Vaccine Immunization Program. Ordinarily B. Anthracis is not considered threatening and is only concerning under certain conditions in agricultural and industrial circumstances. However, the program ignited as a result of fear that Iraq would be using weapons that contained anthrax spores, creating the need to protect military personnel if they were exposed, as this weaponized form of exposure was predicted to be very detrimental to one’s health. It can be noted that these biological weapons were never used, although evidence was later found for Iraq possessing an arsenal of these weapons (Jollenbeck et al., 2002). This program was received poorly by members of the Air Force Reserve and Air National Guard, resulting in members transferring to different units or choosing to leave the military altogether in the first two years after the mandate was imposed. The Department of Defense admitted in a report in late October 2002 that the mandate had hindered the ability to retain the appropriate personnel with knowledge and expertise needed to serve the country. The loss of members of the Air National Guard and Air Force Reserve ignited a study to survey the perception of the mandate. The study revealed that 16% of crew members and pilots transferred, moved, or left their duties altogether to avoid taking the vaccine (Roos, 2002). The Department of Defense eventually changed their approach to the mandate. The vaccination is now only required for personnel being deployed in a region that is categorized as high risk for a period lasting greater than 15 days. The anthrax vaccine is encouraged for other members but is not considered mandatory. A Supreme Court case that followed revealed that it was inappropriate for the Department of Defense to mandate a vaccination without informed consent. Additionally, the vaccination which still had not received FDA approval was not viable and could not be mandated until its approval (Howitt, 2011). Depending on the manner in which one is exposed to anthrax, it can be fatal in 90% of cases (Minnesota Department of Health, 2019). In comparison, COVID-19 has a fatality rate of 1.2%. When comparing the severity of exposure to anthrax and COVID-19 with regard to fatality rates and understanding that the anthrax vaccination was adjusted to only be mandated for a small portion of the military population, a mandate for the COVID-19 vaccine seems petty.
Using vaccine mandates in the military has been practice for hundreds of years, dating back to 1777 when George Washington was leading the Continental Army. On the battlefield, the Continental Army was fighting more than just the British troops. Due to the lack of medical resources and exposure to diseases, many soldiers became ill and lost their lives to the diseases they contracted in their travels. English troops had exposure to more diseases, allowing them to develop immunity and providing them with an upper edge. Their troops did not suffer from disease as severely as the colonists, where less than 25% had exposure to diseases. It is estimated that of the deaths the Continental Army suffered, 90% can be attributed to disease. The most lethal was smallpox. As disease was killing soldiers in large numbers, Washington realized he could not put up a proper fight. He followed the appropriate procedures for the government in place at that point in time, by informing the Continental Congress of the decision and necessity to enact such a mandate for inoculations for smallpox (Aker, 2021). Inoculations were conducted as a method of developing immunity. This was primitive, much less sophisticated than the injections most are accustomed to in modern society. Skin was sliced and stitched with thread that was contaminated with smallpox. While it may seem gruesome today, for its time, this was a common method of developing immunity without natural exposure to a disease. Inoculations dated back to the 1500s in China. For the time, this technology was accepted and believed to be effective in developing immunity for individuals and communities. Following the mandate, infections did not disassemble any regiments in the army, taking away any advantage the English had previously being immune to diseases such as smallpox (College of Physicians of Philadelphia). Smallpox was highly destructive, causing a significant percentage of deaths, unlike COVID-19 with a low fatality rate. Additionally, the method used to achieve immunity was proven effective and appropriate for the technology and research available for that time.
The military naturally has unique considerations, separate from the general population. Soldiers must be healthy to properly defend their country. However, even the military has drawn a line, only implementing a vaccination when risk was high for fatality, and there were still limits to this approach.
Certain groups have been subject to vaccine mandates such as the military, but vaccine mandates have also been used in educational environments including childcare facilities and schools since the early 1900s. Vaccination requirements in schools is a decision that is determined by each state government, not the federal government. All 50 states require students to receive certain vaccines before attending school. Most states design their vaccine requirements to coordinate with the Center for Disease Control recommendations. Exemptions are available in 44 states for religious reasons and there are 15 states that permit exemptions for philosophical reasons. Because these exemptions exist, there is a level of choice. While they are highly recommended and encouraged, students and families may refuse to receive a vaccination if their religious or philosophical beliefs justify their refusal (Skinner & Garcia, 2022). This is important in understanding that refusing a student’s vaccine is not as simple as stating one does not wish to receive the vaccine, but there is a rationale that is approved by the state. This is the state’s way of saying that they desire the student to receive the vaccination, but if one can justify their reasoning for choosing to not take the vaccine, and this reasoning if pre-approved by the state, either religious or philosophical, then the student can be exempt. It is not intended for the majority population to seek the exemption, but those that have reservations about a vaccination and are inclined to refuse it have that option. Although exemptions exist, most families still choose to receive vaccinations. For example, Idaho has among the most relaxed vaccine requirements allowing for numerous exemptions, both religious and philosophical (Dutton, 2019). Despite giving ample opportunities for parents and students to decline a vaccine, such as measles, 95% of students statewide have received their vaccines, leaving only 5% with nonmedical exemptions. This indicates, that although the opportunity exists to refuse a vaccine, the majority still choose vaccination, when given the choice.
When addressing the vaccine mandates for students, it should be acknowledged that the vaccines mandated have been mandated under different circumstances. For example, the chickenpox vaccine began development in the 1950s. It was only released to the market and approved by the Food and Drug Administration in 1995, allowing more than 40 years of research on the vaccine. In 1997, states began to mandate the vaccine in schools to prevent outbreaks. It can be understood, though, that technology was significantly less advanced during the development of the chickenpox vaccine and vaccinations can be developed quicker today, but there was still extensive research and caution when bringing this vaccine to market (Little, 2021). Accepting the chickenpox vaccine, which had decades of research behind it is different from accepting the vaccine for COVID-19 which had less than a year. Even the mumps vaccine, which was the fastest developed vaccine up until COVID-19 took four years to develop (Solis-Moreira, 2021). A more recent example is the Human papillomavirus vaccine, mandated for school in some states, which began development in 1991, experienced seven years of testing before beginning human trials and finally came to market in 2006 (Center for Cancer Research). Although all these vaccines are backed by research and science before mandating in a school environment, it is understandable and important to have reservations about the COVID-19 vaccine due to the fast rate of development, with a relatively small time frame for extensive studies and research. The vaccines previously mandated in schools were for diseases causing much greater harm than COVID-19 and had more time for research and development.
One historical landmark in vaccine mandates for schools came through with the case Zucht v. King. In this particular case, a city ordinance requiring vaccination to attend both public and private schools was questioned. A student, Rosalyn Zucht, was denied attendance in a public school and private school as she did not have the certificate necessary to prove vaccination and refused to receive vaccination. The debate surrounded whether liberties were violated by denying attendance due to vaccination status. The board of health had the discretion to decide which circumstances to enforce the vaccine, not having any particular rules to guide decisions and reduce bias. The court ultimately upheld the validity of the city ordinance deeming it appropriate to institute this regulation (Legal Information Institute). This was the same ruling made previously in Jacobson v. Massachusetts, which will be discussed later. It was decided that the police power of a state provided the authority to implement such an ordinance. Notice, that this falls within the power of the state, and not within the federal government to place a vaccination mandate.
Historically, schools have used vaccine mandates to an extent. Their objective has been to maintain the safety of students and protect public health. In many ways, these mandates have significantly contributed to reducing the spread and severity of infectious diseases. Polio, which was paralyzing up to 35,000 individuals each year leading up to the 1940s, has been eliminated due to polio vaccination efforts (Law, 2021). When examining the vaccinations that are commonly required for students in schools, the diseases being aimed have a much higher rate of mortality and greater long-term effects than COVID-19, which has a less than 1% mortality rate for children (Cull et al., 2022). So, while the supreme court has deemed it acceptable to implement vaccine mandates in schools historically, the context is different due to the nature of the diseases being vaccinated for and the level of research for these vaccines in comparison to COVID-19.
Some form of vaccine mandates have been in effect for members of the general population as well. Immigrants are required to receive a series of vaccinations before being allowed citizenship to the United States. To achieve permanent legal residence in the United States, a medical examination is required by the Health and Human Services and the Centers for Disease Control and Prevention. If proof of vaccination is not present for fourteen vaccines outlined by these organizations, a vaccine is administered during the examination. The first dose of a vaccine may be given in the examination, but the immigrant is not required to receive any follow up vaccines or complete the series. The CDC has criteria for determining the vaccines required to earn citizenship pertaining to age, degree of protection offered by the vaccine, and whether or not the disease being confronted has the potential for an outbreak. There are no exemptions for religious beliefs for immigrants entering the country (Centers for Disease Control). While most states provide this option pertaining to schools, immigrants lack this freedom. Individuals with visa status are also required to receive the vaccinations before becoming permanent residents. Although there are requirements for vaccinations among immigrants to earn citizenship, the population of unauthorized immigrants, which currently stands at approximately 10.5 million should be considered (Lopez et al., 2021). Unauthorized immigrants and those holding green cards are not required to and may not have vaccinations. This indicates that there are loopholes in these mandates, where one does not necessarily need a vaccination to reside in the United States, allowing the validity of these mandates to be questioned, if they are only applicable to those who use certain pathways for entry to the country. Additionally, there are no exemptions for religious beliefs which seems to contradict the freedom of religion outlined in the constitution and demonstrated by most states.
Public safety is a valid argument for enforcing a vaccine mandate as demonstrated in Jacobson v. Massachusetts. In Massachusetts, 1905, a law required citizens to receive the smallpox vaccine or pay a $5 fine, the equivalent of approximately $162 today. The law was instated due to increasing prevalence of smallpox in the region. Similar to Zucht v. King, the court ruled that the police power of the state, gave the ability to compromise personal liberty to protect public health and safety (Skelton). In examining this case of a vaccine mandate being applied to a more general population as opposed to students, the military or immigrants, there are a couple of important components. First, smallpox historically presents a higher mortality rate of 30%, being much larger than COVID-19 (Center for Biologics Evaluation and Research). Additionally, an exemption was permitted by implementing a fine, still allowing the individual to have the choice of whether or not to receive the vaccine. The Fourteenth Amendment was upheld as public safety was deemed important and there was the opportunity to deny the vaccination with a small consequence.
The final argument with regard to vaccine mandates and specifically the COVID-19 vaccination, involves the recent decision to withdraw the proposal by the Occupational Safety and Health Administration to require organizations with greater than 100 employees to vaccinate employees or undergo testing for COVID-19 on a weekly basis. The proposal was alarming to many, sparking significant concern and controversy. OSHA received more comments than any rules previously proposed, reaching 121,000, showing the level of interest and engagement with this proposal. The Supreme Court ruled that this initiative for private businesses could not be enforced. It was stated that this was an overreach by OSHA to force individuals to take a vaccine and dictate personal health decisions. OSHA’s governing statute does not provide them with the power to authorize a vaccine mandate, indicating they stepped out of line with their proposal (Stohr, 2022). Although there is currently no mandate for COVID-19 that applies to the general population, it is important to recognize that almost 66% of the United States population has been vaccinated, just shy of the minimum 70% required to achieve herd immunity (Hill, 2020). Numerous Americans have made the decision to receive the vaccine without being forced to by the federal government. This speaks to the power of individual liberty.
Proponents of a vaccine mandate for COVID-19 or any harmful disease, point to these examples of historical vaccine mandates. Certain groups such as the military, students, immigrants, and people living in a geographic region have been subject to vaccine mandates, but these mandates were for diseases whose consequences were and are far worse than COVID-19. COVID-19 has been detrimental to many, but in comparison to the diseases for which vaccine mandates have been used, this disease does not present the same level of harm and justification for a vaccine mandate. As discussed, the military even modified their vaccine mandate, schools allow for exemptions, and the recent ruling regarding OSHA indicated a mandate crossed some lines. Should a disease pose a level of harm that is extremely detrimental to public health and safety, then a mandate should carefully be considered. However, if a vaccine mandate is implemented for every disease possessing a fatality rate of 1%, where will we start and stop or draw that line in determining vaccine mandates? Never in the course of history has the United States instated an absolute vaccine mandate. Implementing one now would create a dangerous precedent. As society, if we are to foster choice, individual thinking, and basic freedoms, citizens should not be expected to blindly accept a vaccine mandate, should be allowed to consider a vaccine and understand the science before accepting. The context in which vaccine mandates are implemented should cautiously be examined and choice should be permitted whenever possible to “secure the blessing of liberty” for future generations of Americans (U.S. Const. pmbl).