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States have the authority to fine or jail those who refuse COVID-19 vaccine, expert says

"States can compel vaccinations in more or less intrusive ways," said Dov Fox, a law professor and the director of the Center for Health Law Policy and Bioethics at the University of San Diego.

States have the authority to fine or jail those who refuse COVID-19 vaccine, expert says
Cover Image Source: Lisa Taylor receives a COVID-19 vaccination from RN Jose Muniz as she takes part in a vaccine study at Research Centers of America on August 07, 2020, in Hollywood, Florida. (Photo by Joe Raedle/Getty Images)

While drugmakers across the world race against time and the rising COVID-19 death toll to develop a vaccine against the Coronavirus, the question remains as to how the general public would respond to a potential vaccine. The anti-vaxxer movement and conspiracy theories calling the pandemic a "hoax" give cause for worry as they represent a population that will undoubtedly denounce such a discovery, hampering global efforts to completely eradicate the virus. This brings us to the legal side of this conundrum: Could the government take legal action against those who refuse to undergo a mandatory COVID-19 vaccination?



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. Speaking to KGTV in a recent interview, Fox explained that individual states could be legally authorized to impose criminal penalties on individuals who refuse to be vaccinated against the deadly virus. "States can compel vaccinations in more or less intrusive ways," he said. "They can limit access to schools or services or jobs if people don’t get vaccinated. They could force them to pay a fine or even lock them up in jail."



Fox cited a 1905 Supreme Court decision in the Jacobson v. Massachusetts case, which set a legal precedent for the same by ruling that Massachusetts had the authority to fine people who refused vaccinations for smallpox. This case formed the legal basis for vaccine requirements at schools and has been referenced in subsequent decisions. "Courts have found that when medical necessity requires it, the public health outweighs the individual rights and liberties at stake," Fox explained. He further noted that while authorities in the United States have never attempted to jail people for refusing vaccination, countries like France have adopted the aggressive tactic.



He also observed that the rising anti-mask protests across the country show there could be a significant backlash to a vaccine mandate. Although states have the power to take legal action against such individuals, it doesn't necessarily mean it's the best public policy, he said. It also remains to be seen whether Congress could enact a federal vaccine requirement. If it does, Fox believes it would most likely come in the form of a tax penalty. However, he noted that such a mandate would likely be found unconstitutional given the current composition of the Supreme Court.



As for those who oppose a federal mandate, Fox explained that they would cite the Supreme Court’s 2012 decision on the Affordable Care Act when the justices ruled that Congress could not use its powers to regulate interstate commerce to require people to buy health insurance. This indicates that the country would ultimately have a mix of different vaccine requirements in different states. But as for states that do explore a vaccine requirement, Fox advises that it should only be done if the vaccine is widely and readily available. "Otherwise you create an underclass of people who are less safe and without access to the basic means of society," he warned.



Coming to the topic of exemptions, Fox said that while states would need to allow exemptions for people with legitimate medical risks, it shouldn't be permitted on religious or philosophical grounds. "Religious exemptions are not constitutionally required by the First Amendment's Free Exercise clause, provided that the vaccine mandates don't single out religion; they're not motivated by a desire to interfere with it," he said. Meanwhile, according to the fact-checking website Snopes, the New York State Bar Association in May issued a call for mandatory vaccination programs in states and even on a federal level.



"For the sake of public health, mandatory vaccinations for COVID-19 should be required in the United States as soon as it is available," the association wrote. "Mandatory vaccinations are supported by the authority of the state police power when the vaccinations are necessary to protect the health of the community […]. The gravity of COVID-19 presents a compelling justification for State legislatures and Congress to mandate a COVID-19 vaccination."


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