Forced COVID Vaccination: Against

Stephen Kershnar

Forcing COVID-19 Vaccination

Dunkirk-Fredonia Observer

May 24, 2020

In the next year, there might be a vaccine against COVID-19. Scientists are developing over 100 vaccine candidates. Five have reached the stage when they are tested in larger groups for effectiveness and safety. If a vaccine were to arrive, the country would have to decide whether to coerce people to take it.    

There is an anti-vaccine movement in the U.S. due to fear that various vaccines increase children’s risk of autism, damage their immune systems, cause schizophrenia, and so on. The scientific consensus is that vaccination poses no increased risk and, if were to do so, the risk would be greatly outweighed by its expected benefit. Vaccination proponents have argued that in the past, failure to vaccinate enough people resulted in outbreaks of measles, polio, smallpox, tetanus, and whooping cough.

As a legal matter, the government may coerce people into vaccination if necessary, whether via threat (for example, fine or imprisonment) or force (for example, strapping them down against their will and thrusting a needle into them). The Supreme Court has held that the Constitution permits the states to coerce people to be vaccinated. In Jacobson v. Massachusetts (1905), in the context of smallpox, the Court found that the states may compel vaccination through fine on the basis of the states’ police-power justification. On this justification, the Constitution permits states to regulate citizens’ behavior on the basis of health, safety, morals, and welfare. The Court’s decision did not rule out imprisonment or force.

The Supreme Court would likely hold that the federal government may also coerce people into being vaccinated. In the Selective Draft Law Cases [Arver v. United States (1918)], the Court found that the Constitution permits a military draft. Specifically, it found that the draft does not violate the Thirteenth Amendment’s ban on slavery, involuntary servitude, or any other Constitutional right. The reasoning in the case was abysmal. Still, if the Court thinks that the Constitution permits the government to coerce young men into fighting and dying for their country, even in idiotic wars such as World War I, it would likely find that it may coerce these same men and others into being vaccinated.

Let us consider the moral issue. The University of Richmond’s Jessica Flanigan argues that the government has a moral right to coerce people into getting vaccinated. Her argument is that the failure to vaccinate infringes the right of innocents not to be exposed to undue risk of harm. She argues that not getting vaccinated is similar to firing a gun into the air to celebrate July 4^th. Both risk death or injury to innocents and do so for no good reason.

Flanigan further argues that the state may exclude those who are not vaccinated from public services (for example, public schools), restrict their employment, fine them, and make them liable for harm caused by their refusal to vaccinate themselves or their children. Her reasoning supports force or imprisonment, if necessary, as a way to make people get vaccinated.

Flanigan’s argument does not work. The balance of an activity’s costs and benefits determine whether it imposes an undue risk. This is an issue of economic efficiency. Our moral rights do not depend on economic efficiency. For example, it might be inefficient for people to drop out of high school, have children out of wedlock, or smoke, but they still have a right to do these things. Similarly, parents of immunosuppressed children have no right that children with colds or other minor diseases refrain from going to school even if it is efficient that they so refrain.  

If a cost-benefit analysis is used to set the threshold for a right against harm or risk of harm, then the state may ban a number of contagious behaviors. Studies show that divorce and obesity are contagious. Both are bad for children. If Flanigan’s argument were to succeed and the risk of harm were great enough, the state may restrict the divorced and obese in ways that would prevent them from influencing their peers and harming children. Perhaps this might be done via restricting their presence at schools and jobs. Alternatively, this might be done by fines or imprisonment. The state has no moral right to restrict, fine, or force divorced and obese people to isolate themselves.   

Other academics argue that in economic terms, vaccination is highly efficient. That is, its benefits far outweigh its cost. They argue that economic efficiency is a good reason for coercion. They argue that efficiency justifies speed limits, blood-alcohol ceilings, and safety-belt and motorcycle-helmet requirements. On this theory, the state’s way of regulating behavior - incentives, fines, imprisonment, or force - is also a matter of efficiency. Like Flanigan’s argument, this argument allows the state to do absurd things. Even if the military draft were efficient, this is not a good enough reason to enslave young men in order to make them fight our wars.

NYU’s Arthur Caplan argues that children have the right to the best available medical care, and this includes vaccines. If the parents will not voluntarily vaccinate them, the government should make them do so. In a legal parallel, a 2017 study found that in seven out of nine cases, courts found that parents who refused to vaccinate their children committed medical neglect. Apparently, similar reasoning does not apply to education and health neglect. For example, the law permits Amish children to leave school before entering high school. It does not fine or otherwise punish parents whose children are functionally illiterate, morbidly obese, or pregnant. 

In any case, the latest estimates indicate that the fatality rate for the Covid virus is surprisingly low (0.26%). This rests on Centers for Disease Control’s current best estimate of a 0.4% fatality rate for those who are infected and symptomatic with 35% of those infected being asymptomatic. Given this low rate, the empirical case for coerced vaccination weakens considerably, regardless of whether moral argument succeeds.