Can the Government Force You to Get a Coronavirus Vaccine?

State and federal governments can't force people to receive a new coronavirus vaccine against their will, experts said, but lawmakers may be able to create a mandate that imposes consequences for not being vaccinated.

Vaccine research for a new coronavirus is moving forward at an unprecedented rate and experts champion high rates of immunity in a population as a solution to stopping a virus from spreading. But a recent Reuters poll found about a quarter of the American public isn't interested in a vaccine for SARS-CoV-2, and the federal government may have a tough time creating a requirement that people be inoculated.

It's possible Congress could have the power to mandate a vaccine under the commerce clause since the virus travels across state borders, constitutional law experts told Newsweek. The question is whether that power actually includes the power to require vaccines and Steven Wilker, a partner at the law firm Tonkon Torp, told Newsweek that it would likely be a "reach."

If the federal government did want to pursue mandating vaccines, the more realistic scenario is to tie it to federal funding or tax individuals who refuse to vaccinate. The Supreme Court upheld the individual mandate in the Affordable Care Act, signaling to Wilker the tax may be permissible.

"In either case, that does not mean an individual could be vaccinated against their will if they were willing to suffer the consequences of not doing so," Wilker said.

coronavirus vaccine mandate state federal government
This picture taken on Saturday shows a laboratory technician holding a dose of a COVID-19 novel coronavirus vaccine candidate ready for trial on monkeys at the National Primate Research Center of Thailand at Chulalongkorn University in Saraburi. Researchers are racing to find a vaccine and experts told Newsweek it's possible for the government to mandate a vaccine, although they can't require people to be vaccinated. Mladen ANTONOV/AFP/Getty

The federal government could also leave the decision up to states. In the 1905 case, Jacobson v. Massachusetts, a citizen argued forced smallpox inoculations infringed on his personal liberty. The Supreme Court upheld the Cambridge Board of Health's authority to require the vaccination under the 10th Amendment that grants state police powers.

As it's still a "perfectly good law," Laurence Tribe, a Carl M. Loeb University Professor at Harvard Law School told Newsweek. The answer to whether states could mandate vaccinations, he said, was a "clear yes."

Sylvia Law, a law professor at New York University, called it "easy" for states to require vaccinations and pointed out that they've already done so in a number of contents. Students are often required to be vaccinated to attend school and in the case of COVID-19, she said. "I think they have a reasonable basis for doing so."

Wilker said he wasn't convinced that a state's police power by itself would be enough to allow a vaccination mandate. To answer that question, he said officials would have to review each state's laws in regard to public health emergencies.

Officials have confirmed more than 1.6 million cases of a new coronavirus in America and nearly 100,000 people have died as of Tuesday. Inoculations are known to help establish herd immunity, a concept where most of the population's immunity protects those who aren't, and officials claim high immunity rates are key to safely resuming gathering in large numbers and once again moving about freely.

Not everyone can be vaccinated safely, though. Law said if states impose a mandate, they should include a health exception for those who could be put at risk. All 50 states already grant exemptions for medical reasons, according to the National Conference of State Legislatures, and 45 have religious exemptions.

In the case of a new coronavirus vaccination, Tribe said disputing the mandate on a religious basis would be difficult because the danger to public health is likely to "trump any claim" to special treatment. An argument that the mandate violated the 14th Amendment would have a "slightly better chance" against a federal mandate than a state mandate, but Tribe said he wasn't confident a person would be successful in either instance.

"Either way I think the odds are if we came to the point politically where the federal government began mandating that people be vaccinated against COVID-19 it's almost certain there'd be some appropriate federal statute or regulation that would back it up," Tribe said.

It's not enough to have a mandate, experts said, and officials need a way to enforce it. States exclude children from school if they aren't vaccinated, but there's no mechanism in place to enforce a mandate with adults. One option that would "appear consistent" with restrictions on students, Wilker said, was to impose limitations on adults, but he added, "they might be much harder to enforce."