The Covid-Vaccine Mandates Are Unprecedented

T he starting point for any arguments about mandating Covid vaccination should be that the policies currently being proposed, implemented, and contemplated are unprecedented.

This has nothing to do with whether you believe that vaccines are beneficial and that more people should be taking them (I do) or whether you think that the benefits of requiring them outweigh civil-liberties concerns (I don’t). People can disagree about whether taking unprecedented steps to coerce people into getting vaccinated is justified. But everybody should agree up front that the Covid-vaccine mandates are not like anything we’ve seen before.

At the outset, it is worth reviewing what vaccine mandates have already been imposed or are being discussed.

On Friday, the Supreme Court will hear two challenges to President Biden’s vaccine mandates. One case concerns the requirement, issued as an OSHA emergency order, that large employers require their workers to either get vaccinated or submit to weekly testing. Given the difficulty of getting tested right now — with reports of six-hour waits in surging regions — weekly testing can no longer be seen as a plausible alternative, in effect making Biden’s policy a vaccine mandate. A second Biden mandate applies to all health-care workers at facilities receiving funding through either Medicare or Medicaid. Taken together, these rules, if the justices allow them to go into effect, would apply to 100 million workers.

Biden has also said he would consider issuing a vaccine requirement for domestic travel if his medical team recommends it. Anthony Fauci, the president’s chief pandemic adviser, has already said the idea should be “seriously considered.”

Separately, liberal cities such as New York, Los Angeles, Boston, and Washington, D.C., have adopted sweeping rules to bar the unvaccinated from a wide range of activities — and the rules apply to customers as young as five. In New York City, kindergartners aren’t allowed in restaurants, movie theaters, museums, aquariums, zoos, or a number of other places without showing proof of vaccination.

Defenders of these broad requirements have attempted to downplay how extraordinary they really are by pointing to other, more limited, ways in which society has tried to get people vaccinated that have no particular relevance to the current actions.

Some have tried to normalize the vaccine mandates by arguing that they date back to George Washington. It is true that Washington required his Continental troops to be inoculated against smallpox. But this was to counter the fact that he was struggling to maintain enough soldiers and could not afford to lose any to disease. It was a wartime measure that did not affect those who were not in the Continental Army.

Others point to Jacobson v. Massachusetts, a 1905 Supreme Court decision in which justices allowed Massachusetts to implement a vaccine mandate. But regardless of what one believes about the decision, it referred to a state law rather than federal rule, and the law allowed people to opt out of vaccination by paying a fine that would be equivalent to $150 in today’s money.

More contemporaneously, people cite vaccine mandates in public schools, which have been common for decades. Again, this is nowhere near the same. Public schools, which are governed at the state and local level, mandate that students receive certain vaccinations as a condition of enrollment, with a few exceptions depending on the area (such as for medical or religious reasons). The public-school mandates do not apply outside of school. They do not prevent people from holding jobs or entering a wide range of public spaces.

It’s also worth noting that public-school mandates have typically involved vaccines such as MMR (against measles, mumps, and rubella), which offers lifetime protection. The current Covid vaccines have shown waning efficacy after a few months. Israel, which has been a leading indicator so far, has begun giving out a fourth dose to those in their 60s. Meanwhile, the CDC has shifted away from describing people as “fully vaccinated” if they received two doses and instead is using the term “up to date,” which includes those with a booster. The agency’s recently updated isolation guidance lumps together those who have received two doses of an mRNA vaccine with the unvaccinated.

The idea of receiving regular shots to counter a virus is not in itself unprecedented. The flu shot, for instance, is offered annually. But the difference is that the flu shot is not generally required by schools in the same way as MMR, and certainly not as broadly as the Covid-vaccine regime being implemented and contemplated.

What we are moving toward is a system in which vaccination is required for an expanding number of activities while there is a constantly changing definition of what it means to be vaccinated. This will require a level of coercion and surveillance of people trying to hold down jobs and participate in everyday life that has never before been imagined in the United States.

Advocates for such policies must be forced to grapple with this reality.