Can Vaccines Be Required? Should They Be Required?


Herd immunity means that enough people are immune to a disease that it’s unlikely to spread through a community. Herd immunity to COVID-19 could be achieved if enough people got vaccinated. How can we make sure the country reaches that point?

In an article published in the Wisconsin Law Review, Professor Debbie Kaminer of Baruch College examines the powers that federal and state governments have around vaccination, as well as the role that private businesses can play. Kaminer concludes that the best way forward is likely a mix of targeted mandates and positive, public encouragement, along with measures that make getting a vaccine convenient and free.

Resistance to vaccines in the U.S. now comes from multiple places. Anti-vaxxers have been joined by conspiracy theorists as well as people who think that vaccines against COVID-19 were developed too quickly, or with too much political motivation, to be safe.

Though the government has broad legal powers to enforce vaccination, Kaminer writes, far-reaching mandates aren’t likely. Many states haven’t even mandated mask-wearing, and vaccine mandates are likely to backfire by further escalating mistrust.

A better approach would be to use policies that specifically target people who either have a higher risk of COVID-19 complications, or who are likely to spread the virus. The government could require people to be vaccinated before returning to school, before acquiring or renewing a passport, or before using public transportation, for instance.

While controversy over religious exemptions are likely to arise, such exemptions are not required by the Constitution. Since “mandatory vaccination does not single out religion and is not motivated by a desire to interfere with religion,” Kaminer writes in an article in The Conversation, the First Amendment doesn’t necessitate such exceptions.

Businesses can help fill in the gaps by requiring employees to get vaccinated, with the option of a medical exemption. They could also require vaccinations for customers, though this would be harder to verify and enforce. There are a few exceptions to private industry’s ability to require vaccinations: In Oregon, it’s illegal for businesses to require employee vaccines that aren’t required by the state. And if a workforce is unionized, the union might be able to challenge the mandate. 

Public messaging could play a third, and gentler, role, Kaminer writes. Governments could work with public figures and religious leaders to encourage people to get vaccinated of their own volition. To nudge citizens a little more, officials should remove decision-making barriers, possibly by scheduling people for vaccine appointments rather than asking them to pick dates themselves. And to make immunity accessible, the vaccines should be free and convenient to get, for all.