Henning Jacobson, Carrie Johnson, Professor Lindsey discussed on NPR Politics Podcast


Covered demographics and culture. And i'm carrie. Johnson the national justice correspondent and we have a special episode today. This is the docket our ongoing series where we look at the big legal questions of the day. Today we're talking about something very much in the news we're talking about vaccine mandates as yet another wave of cove in nineteen spreads throughout the us. We've seen businesses cities and parts of the federal government begin to require proof of vaccination and with that comes a debate over not just the ethics of vaccination but also legality whether it's legal to require vaccination to do any number of things like get a job or go to a sporting event or a restaurant and talk about this. We have legal expert. Carrie johnson but also another expert. Who've you brought kerry. Yeah we have law. Professor lindsey widely from american university. Here with us. Today she directs the health law and policy program there. Hi professor wiley. Thanks for inviting you to join you. Oh we're happy to have you. And i guess the best place to start is with kind of a simple question isn't legal to require. Vaccinations for cove in nineteen. I think there may be a very old supreme court case about this from all the way back to nineteen o five. There is an that decision jacobson. Be massachusetts has gotten a lot of attention over the last A year and a half or so. It's actually a decision that was very relevant to the kinds of social distancing measures and business restrictions. That were used a four. we had A a widespread availability for a safe effective vaccine the case itself was about a vaccination mandate this case actually involved a pastor who had immigrated from sweden and i think he had a bad reaction to a vaccine years before right so in the early nineteen hundreds smallpox outbreaks were fairly frequent and many people had been vaccinated earlier. You know as children but needed to be reback stated as their immunity wayne so henning jacobson was one of those people. The the state of massachusetts passed a law that gave authority to local boards of health to make a decision at any given moment in response to an outbreak that smallpox vaccination should be mandatory for all residents of their local area. If in the opinion of the medical experts who were serving on the board it was necessary to protect the public health so the city of cambridge made that determination. They then you know went through the effort of outreach to get get everyone vaccinated. When they came to henning jacobson. he objected. Now he happened to be a pastor but in the litigation he did not raise religious liberty. And that's the cause in nineteen o five. The supreme court had not yet applied the first amendment to state governments. And so it just wasn't an option on the table for him at that time instead he argued that vaccines are ineffective. He argued that they don't prevent transmission and he argued that they were harmful Sound familiar the f. The court described those arguments as not seeking a medical exemption but rather reciting the alternative views. that differ from medical consensus and that those arguments did not warrant an exemption extension from the requirement to be vaccinated so Jacobson was actually The subject of a criminal enforcement action the city initiated proceedings in criminal court to collect the penalty It was five dollars which Just as gorsuch recently pointed out He looked it up So he thought it was important and said it was about one hundred forty dollars By today that's real money. Yeah that's real money In that criminal proceeding by the state back was when jacobson raised his arguments against vaccination. There was some indication i believe. Historians have found that he was being supported by active anti vaccination groups. At the time we tend to think of antibac- saination something recent but it has been a lot around as long as vaccination been around. It seems like the overarching theme from most of the jurisprudence from nineteen o five has been a public safety and public health sometimes will prevail over individual desires in and give way to the common good. Am i getting the overall stream of legal decisions right there. That's exactly right Our individual rights under the constitution are not absolute bay can be counterbalanced by pressing public health or public safety needs and that's true in a pandemic as it is in in routine times as well that old case we just discussed jacobson. V massachusetts talked about the power of state. But it's this analysis different when it comes to the federal government we haven't seen president biden issue a nationwide mandate but is it law or politics. That's causing some reluctance there. I think it's a combination of the two. Actually there are different constraints not based on individual rights but based on federalism and also separation of power. What i do think we were likely to see is some incentives An and conditions on things like participation in medicare for hospitals and maybe skilled nursing facilities nursing homes That's very different from the kinds of mandates that were seeing employers adopts and that we're seeing at least a couple of local jurisdictions consider for patrons at certain businesses and speaking of employers. What you were just talking about private companies have really been in a big way leading the charge here on requiring vaccines and. I'm wondering if you can tell us about some history here. The the covent vaccine isn't the first or only vaccine that businesses have required for their employees. Am i right on that note. That's correct although we typically seen those requirements limited to certain sectors where the risk of transmission is higher or where the employees are working with vulnerable populations and so for example very common for healthcare employers to require flu shots and a whole host of other shots as a measure to protect patients but also to some extent to protect health workers themselves so for example many require on hepatitis. Vaccinations in addition to flu shots. All kind of Childhood vaccines that we tend to get as a condition of attending school the other Kind of common requirement applied to adults who are over. The age of eighteen has been university requirements college Attendance requirements college students in many states are required by law. Not just by the option of the college to get a meningitis vaccine. Because of a higher incidence of of meningitis outbreaks in kind of congregate setting on on campuses. And we've seen these same groups sort of lead the charge on vaccination requirements for cova. Did that makes sense because some of the same concerns. Apply to kobe as apply to flu or meningitis. And also because these are entities employers universities who already have the basic infrastructure in place to impose these kinds of requirements..

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