Post Authored By Laura Wibberley

Now that vaccines designed to protect against the virus that causes COVID-19 have entered clinical trial stages, the question now posed is, can the government mandate that the public receive the vaccine?

The classic case of Jacobson v. Massachusetts, posed the question in the context of a state law that required adult citizens to obtain the small pox vaccination or face a fine. 197 U.S. 11 (1905). The United State Supreme Court held that the state law was constitutional. Id. at 39. The Court reasoned that the state’s police powers included the ability to enact laws that will protect the public health and safety of its citizens. Id. at 25. Although the state citizen argued that the state law was an invasion of his right to liberty, the Court found that the liberty secured in the Constitution was not an absolute right. Id. at 26. “The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the county essential to the safety, health, peace, good order and morals of the community.” Id. at 26-27. Thus, the Court found that a state’s police power included the ability to mandate a vaccine in the midst of the smallpox epidemic in the interest of public health and safety. Id. at 30-31.

Today, there are several laws in place that mandate immunizations in the interest of public health and safety. Most of these laws are in the context of vaccination requirements prior to entrance into schools and daycare settings. Some states also have similar laws for individuals practicing in health care fields. Though, the majority of these state laws do have exceptions that traditionally may apply. Common exceptions to mandatory vaccination laws include: 1) a valid medical reason or 2) religious beliefs. There are also some states that allow exceptions for personal, moral, or other beliefs.

In order to qualify for the first exception, individuals need to obtain confirmation from a licensed physician that a particular vaccination is medically contraindicated. This exception is ubiquitous and is typically delineated in most state immunization mandate laws. The second exception generally requires that the individual be a member of a recognized religious organization with sincerely held religious beliefs whose teachings conflict with the immunization mandates.

Some courts have narrowly construed this second exemption. For example, in Mason v. General Brown Cent. School District, the parents argued that their child should be exempt under a New York immunization mandate law for religious beliefs. 851 F.2d 47, 48-49 (2d Cir. 1988). However, the Court found that the parents’ beliefs were not associated with any religious organization rather their opposition was merely a lifestyle choice. Id. at 50-52. This was not enough to qualify for the religious exemption from the vaccination requirement law. Id.

Illinois already has several immunization mandates in place. Illinois law currently requires citizens to receive vaccinations prior to entrance in childcare, public and private schools, or college. See 105 ILCS 5/27-8.1. Each individual must present proof of immunity, i.e. a form completed by a medical professional confirming that the vaccine had been administered, prior to enrolling in the program. Id.; see also 77 Ill. Admin. Code 665.230. The current list of required immunizations includes, tetanus, measles, rubella, mumps, pertussis, to name a few. Id. at 665.230. As discussed above, exemptions do apply if the individual or parent objects for religious or medical reasons. Id. at 665.510 and 665.520.

Illinois state law also mandates immunizations for adults in specific fields of work, such as health care. Similarly, exceptions apply to health care workers for vaccinations that are medical contraindicated or for religious beliefs. Id. at 956.30. Illinois does not recognize an exception for philosophical differences or beliefs in any circumstance.

Given the prevalence and danger of the virus that causes COVID-19, we will likely see this vaccine added to the list of immunizations already required prior to the entrance into schools, daycare programs, and employment in the healthcare field. However, is it possible that even greater mandates will be implemented given the tremulous impact of the COVID-19 pandemic.

About the Author:

Laura Wibberley concentrates her practice in the areas of medical malpractice and health care defense. Laura received her J.D. from The John Marshall Law School in 2017, where she graduated Valedictorian and summa cum laude.  While in law school, Laura was a student publications editor of the John Marshall Law Review and an associate justice board member of the Moot Court Honor Society. She received the CALI award in Evidence, Civil Procedure, and Contracts.