Harvard law professor emeritus Alan Dershowitz has made quite a media stir by claiming that the government can force us all to receive COVID-19 vaccines if one is developed.
Here is what he said in a streamed interview:
"Let me put it very clearly: you have no constitutional right to endanger the public and spread the disease, even if you disagree. You have no right not to be vaccinated.…And if you refuse to be vaccinated, the state has the power to literally take you to a doctor’s office and plunge a needle into your arm."
Dershowitz justified that rather shocking conclusion as settled law under a 1905 Supreme Court case, Jacobson v. Massachusetts. That seemed like an awfully Draconian decision, so I read it. And what do you know: it isn’t nearly as broad in scope as Dershowitz indicated.
The case involved federalism and the power of local governments authorized in a law passed by Massachusetts that allowed municipalities to require smallpox vaccinations of all residents during local outbreaks. The Cambridge Health Board issued such an order during a community epidemic. An anti-vaxxer of the time refused, was prosecuted, and ultimately, convicted of violating the order.
The defendant brought the case to the Supreme Court arguing that the Massachusetts law and Cambridge order violated the U.S. Constitution. The Supreme Court ruled that it did not. From the ruling:
"The Supreme Law of the Land [the Constitution]…should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law."
Thus, the decision does not stand for the principle that the federal government—or even state authorities—have the power to force everyone to receive a vaccination because there is a health emergency. Rather, it found that the United States cannot impose a national legal standard on a locality unless mandated by the Constitution, which in this case, it wasn’t.
The Court enunciated the legal standard necessary to justify the government assuming such sweeping power:
"Liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand."
Now, let’s apply the Jacobson ruling to the current COVID-19 crisis. First: The authority granted Cambridge was limited in scope and applied only within that city. In other words, the Cambridge order had zero impact on the residents of Cape Cod.
Second: Government cannot just pass any law it wants because there is a health emergency. So, here’s a question that must be answered in assessing Dershowitz’s claim of a broad power of the government in the current circumstance: Is the COVID-19 pandemic such a “great danger” that it would be “reasonable” to secure “the safety of the general public” for the government to force everyone in the country to be vaccinated?
It seems to me that the answer must be no.
Context matters. The Jacobson case dealt with smallpox, one of the deadliest diseases known to man, with a 30 percent mortality rate and scarring afflicting the majority of survivors. COVID-19 comes nowhere close to being that deadly. Those at material risk of death from COVID-19—still a lower risk than smallpox—are the elderly and people with serious comorbidities. Children and healthy adults do not face a dire peril. Almost all recover from the illness and some don’t experience serious symptoms of any kind.
Third, since we can identify the minority most at risk from COVID-19, is it reasonable to force everyone in the country to be vaccinated? Absolutely not. The government can deploy far less intrusive means to shield such people with limited quarantine orders and locking down nursing homes, as two examples.
Finally, the pandemic has had widely divergent impact throughout the country. Would it be reasonable to force people in Montana to all be vaccinated because New York and New Jersey were hit by a catastrophe? Surely, the answer has to be, no. Given that high-risk populations can be identified and isolated for their protection without materially impacting the freedom of the rest of society, I believe that state or federal laws requiring universal vaccination would be viewed by the courts as an unreasonable overreach of government power.
Our leaders are, of course, free to use persuasive means to convince us to be inoculated should a vaccine be perfected. But in this particular circumstance and given the exigencies of this specific disease, it can’t force us. And the government, Dershowitz’s opinion notwithstanding, certainly doesn’t have “the power to literally take you to a doctor’s office and plunge a needle into your arm.”
Award-winning author Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism. His most recent book is “Culture of Death: The Age of ‘Do Harm’ Medicine.”