It is the most recent question that divides the US and creates a desire to revitalize the country’s economy and cultural life safely against privacy and civil liberties concerns.
After roughly a quarter of the United States has been vaccinated, some states, companies, and schools are considering tools to track people’s status – also known as “vaccination records”. Supporters say it will help schools and businesses reopen safely. Critics say it violates an individual’s health choices.
Why we wrote that
Vaccination records are the latest issue to divide the US, raising legal and ethical issues. The law is clear. The ethics is not.
A 1905 Supreme Court case ruled that state governments may require vaccinations to protect public health. However, the current Supreme Court has raised particular concerns about religious freedom violations, including pandemic restrictions on worship. If there are mandates with no clear exceptions for sincere religious beliefs, it would not be surprising if the judges intervened.
And some facts are different this time. For example, the FDA never issued an emergency approval for a vaccine to an entire population until this pandemic. Two lawsuits filed so far make this central to their arguments.
“Reasonable opinions can differ. I think a mandate would be appropriate,” says Dr. Eric Feldman, Professor of Medical Ethics and Health Policy. “It’s an issue on which we have no precedent.”
It is the most recent question that divides the United States and creates a desire to revitalize the country’s economy and cultural life safely against privacy and civil liberties concerns.
With around 20% of the United States vaccinated so far, some states, companies, and schools are considering tools to track people’s status – also known as “vaccination records”. Supporters say it will help schools and businesses reopen safely. Critics say it violates an individual’s health choices. Israel has implemented it, and many European nations are trying to do the same thing that they did last summer.
Here in the US the law is relatively clear. The ethics is not.
Why we wrote that
Vaccination records are the latest issue to divide the US, raising legal and ethical issues. The law is clear. The ethics is not.
Can the government do that?
Legally, with reasonable exceptions, it would appear so. As for the federal government, however, the Biden government flatly rejected the idea this week.
“There will be no federal vaccination database or federal mandate that requires everyone to receive a single vaccination certificate,” said Jen Psaki, White House press secretary, at a press conference on Tuesday.
State governments have more legal leeway to implement such programs because of Jacobson v Massachusetts, a 1905 Supreme Court case. Massachusetts could mandate smallpox vaccinations to protect public health, the court ruled at the time, striking a balance between individual freedom and the common good that has largely been respected since then.
“Jacobson says yes, we have the right [to civil liberties]but it’s not an unlimited right, ”says Eric Feldman, professor of medical ethics and health policy at the University of Pennsylvania’s Carey Law School.
The fact that current vaccines have been approved for emergency use only represents a new legal wrinkle, according to experts, but so far more states – including Texas and Florida – have preventively banned vaccination passports than developed. The New York Excelsior Pass, a voluntary program developed with IBM, is the only vaccination pass to date.
Then what about private companies?
You have long been able to set entry requirements as long as they are non-discriminatory and allow certain exceptions. (See: “No shirt, no shoes, no service.”) We have seen many flex this muscle with mask requirements during the pandemic. However, the need for vaccines would raise further questions.
It is “clearly lawful” for companies to require proof of vaccination for employees, and they could likely do the same for customers, said Lawrence Gostin, a public health law expert at Georgetown University Law Center, in an email.
“I have a lot of vaccine mandates for employees, but fewer for customers,” he adds. “There are cases when it would be crucial to require customers to vaccinate, for example on cruise ships.”
The Equal Opportunities Commission has laid down guidelines on what employers can ask for and what they must exempt.
If a disability or a genuine religious belief prevents an employee from being vaccinated and the company cannot provide accommodation, the agency said, “Then it would be lawful for the employer to exclude the employee from the job.”
Are you waiting so someone may not be able to go to work if they haven’t been vaccinated?
Yes, and this is where the ethical and fair questions surrounding vaccination records become particularly sensitive – especially when vaccines are still only approved for emergencies by the US Food and Drug Administration (FDA).
When you factor in the context that blacks and Hispanic Americans were vaccinated at lower rates – in part because of access and reluctance issues – according to the Centers for Disease Control and Prevention – this gets particularly complicated.
“Requiring vaccination as a price of entry is likely to fuel these concerns [and] Hesitation and skepticism about vaccines, ”says Dr. Feldman.
“Multiplying the harm of restricting access to vaccines by restricting access to other things would find many to be appropriate,” he adds.
At least 17 public and private passport initiatives are being developed, the Washington Post reported, and as it spreads, those feelings of coercion and hesitation could intensify, says Jenin Younes, a New York City appeals attorney.
“It is an incentive for people to get vaccinated. But it’s not a good incentive, ”she adds. “It creates pressure to get the vaccine. … public trust [is lost] when people feel compelled. “
Schools already require students to have certain vaccinations, right? How do you approach that?
Requirements vary from state to state, but yes, public school systems across the country require students to have some vaccines. (While the majority of states allow religious exemptions, states like California, New York, and Maine don’t.) No vaccine for children under the age of 16 has been granted emergency clearance, but if it does, school districts will likely put it in their mandates record, tape. says Professor Gostin.
Particularly in schools with strong teacher unions, there is likely to be “overwhelming pressure to require vaccination of children entering schools,” added Drs. Feldman added.
Evidence of vaccination may be required for other “public housing” locations such as public parks, libraries, and museums. However, anyone with a disability who prevents them from receiving a vaccine would be exempt.
Could this end in the Supreme Court? If so, what can we expect?
It is very possible. The Supreme Court has raised particular concerns over religious freedom violations in recent years, including pandemic restrictions on worship. If there are vaccination mandates with no clear exceptions for sincere religious beliefs, it wouldn’t be surprising if the judges intervened.
It is also possible that the current court may judge a state’s power to mandate vaccination differently than the Jacobson Court of 1905. Some facts here are different from previous cases. For example, the FDA had never issued an Emergency Authorization (EUA) for a vaccine to an entire population until this pandemic.
Two lawsuits filed so far – one from a correction officer in New Mexico and one from employees of the Los Angeles Unified School District – make the EEA central to their arguments against vaccine mandates.
“Reasonable opinions can differ. I think a mandate would be appropriate,” says Dr. Feldman. “It’s an issue on which we have no precedent.”
Staff writer Stephen Humphries contributed to this report.
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