The Volokh Conspiracy

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Mandatory Vaccination Plans Seem Premature, Until All Willing Recipients Are Vaccinated

|The Volokh Conspiracy |

Josh posted below about whether a law requiring vaccinations—perhaps even physically coercing people to get vaccinated—would be constitutional. This is an interesting legal question.

But the question, and the New York bill he's discussing, seems a bit premature. First, if there aren't enough vaccine doses to go around at first, it seems odd to take time and effort coercing vaccinations of those who say "No, thanks" when there are others who are saying, "Hey, I'll take that!" (And it likely would take time and effort; at least so long as there is any medical or religious exemption available, each such exemption request—including the ones that are doomed to lose—will have to be litigated.)

I realize there might be some unusual twists in some situations; for instance, perhaps the person saying no is someone who, if infected, will likely come into contact with lots of other people he could infect, but the would-be substitute wouldn't provide as much social value in getting immunized. But on balance, I expect the vaccine resister problem won't be a real problem, if at all, until after there's enough for everyone.

Second, say enough vaccine doses can quickly be made; there may still be lines to get them for other reasons, such as limited personnel capable of administering them. There too it seems better to focus on the willing recipients, rather than taking time and effort to go after the unwilling.

Third, say that everyone who wants to get the vaccine (and is medically safe to get it) does get it. Maybe at that point we'll get the much-talked-about "herd immunity," where enough of the population is immunized that the existing virus will largely stop spreading; again, we might avoid the need to go through the huge problems involved in coerced vaccination. Or maybe at that point we'll learn that the vaccine does have some serious side effects, at least for some categories of people, so perhaps the justifications for refusing vaccination are stronger. Or maybe by then we'll have learned something else; scientists have been learning more about this illness every month, and I expect they'll learn more by then.

Now perhaps at some point we will need to physically force people to get vaccinated—or, short of that, threaten them with fines or even jail to coerce them into getting vaccinated. But that seems like a decision for legislatures to make then, with more information about availability, herd immunity, side effects, and more. It seems premature to make it now.