Pharmaceutical companies are now racing to develop a vaccine against the coronavirus and now there are several legal questions emerging. Could the government force people to get the vaccine and will there be a corresponding jail time of the public refuses it?
Can you be jailed for refusing vaccine?
According to Dov Fox, a law professor and the director of the Center for Health Law Policy and Bioethics at the University of San Diego, the answer is yes.
Fox said in an interview with Complex that states can compel vaccinations in more or less intrusive ways. States can limit access to schools or services or jobs if someone does not get vaccinated. The government can impose fines or even arrest those who will refuse to get the vaccine.
Fox also stated that authorities in the United States have never attempted to jail people for refusing to vaccinate, but countries like France have practiced the aggressive tactic to make sure people gets vaccinated.
The legal precedent dates back to 1905 in a U.S Supreme Court case, Jacobson v. Massachusetts wherein the court ruled Massachusetts had the authority to fine those who refused vaccinations for smallpox.
The case was the reason behind the formation of vaccine requirements at schools and its legal basis, it has also been upheld in subsequent decisions. Fox stated that courts have found that when medical necessity requires it, the public health ultimately outweighs the rights of an individual.
In 2019, New York City passed an ordinance that fined those who refused vaccination for measles. Fox said that the recent protests over masks show that there could be massive backlash to a vaccine mandate. He added that just because states have the power to do it, it does not mean it is the best public policy.
Even though states would have the authority to mandate vaccinations, there is more doubt about whether Congress could enact a federal requirement.
The most likely federal vaccination requirement would come in the form of a tax penalty, however Fox said that given the current composition of the Supreme Court, a federal vaccine requirement would likely be found unconstitutional.
Religious and philosophical grounds
Opponents could cite the 2012 decision of the Supreme Court on the Affordable Care Act. In that case, the justices rules that Congress could not use its powers to regulate interstate commerce to require people to purchase health insurance even though the ACA's individual mandate was upheld on separate grounds.
This means that America may not be united when it comes to vaccine requirements as it will depend on each state. Fox said that states that explore a vaccine requirement should only do so if the vaccine is available.
States need to allow exemptions for those with legitimate medical risks, like those who are pregnant, but not exemptions on philosophical grounds and religious grounds.
Meanwhile in the workplace, private employers would have the flexibility to require vaccinations and fire employees who refused them for anything but medical concerns.
Fox said that as long as employers show that there are significant costs linked with having employees that are not vaccinated, they would not need to offer religious and philosophical exemptions to employees.
Employers are not required to accommodate religious employees if doing so would be more costly, according to the 1964 Civil Rights Act.
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