The trend seems to be going in the direction of requiring and approving compulsory vaccinations as a condition of employment. A Texas federal judge recently required a nurse at Houston Methodist Hospital either to be vaccinated or to lose her job. He correctly characterized as “reprehensible” the nurses’ argument that a vaccination requirement is akin to medical experimentation done during the Holocaust.
The medical experimentation done by Dr. Josef Mengele and others in Auschwitz was designed to kill the patients, not to help them. Vaccines are designed to save lives. To make any analogy to the Holocaust is to suggest that the Holocaust was no worse than vaccination. That is a form of Holocaust denial, deserving only of condemnation.
But even without that exaggerated, bigoted hyperbole, the argument offered by the Houston nurse and her fellow plaintiffs is not constitutionally sound.
The United States Supreme Court, more than 100 years ago, ruled that the public health power of government extends to mandating vaccines against highly communicable and often lethal diseases. In that case it was small pox. In this case it is COVID-19. It’s up to the government to determine the safety requirements for vaccinations, and here it has been determined that, in the light of the seriousness of the current pandemic, the vaccine is safe enough.
The Texas court went out of its way to emphasize that nobody is threatening the nurse with imprisonment. She has a choice: She can refuse to be inoculated, but she cannot work in the hospital if she makes that decision. That is a perfectly rational judicial conclusion.
The hard case may never come. That would be if all Americans were required to be vaccinated without regard to religious or philosophical beliefs. We haven’t reached that point yet because there are still more people who want to be vaccinated and haven’t received their doses than there are conscientious objectors. It is unclear whether we will be able to reach herd immunity without some kind of compulsory vaccination, but we can come a lot closer than we now are.
During the Revolutionary War, Gen. George Washington required all of his troops to receive the primitive vaccinations then available to prevent the spread of small pox. I am aware of no objection to that order, nor to the modern-day mandate that all American military personnel must be vaccinated against multiple diseases.
Even for those who oppose vaccination on medical or ideological grounds, sacrifices are often required as a condition of living in a free and democratic society. Many people don’t want to pay taxes, or to send their children to school, or to show ID when they get on airplanes. But the law requires them to do so.
In general, our nation has provided exceptions for conscientious objections, based on religion or closely related philosophical beliefs. But this doesn’t mean that conscientious objectors for vaccination should be allowed to endanger others. Recall that the vaccine is only about 95 percent effective. No one would get on an airplane if there was a 5 percent chance of a crash — nor should a vaccinated person be required to encounter an unvaccinated person. So perhaps conscientious objection should be permitted, but it should be conditioned on not exposing others.
The issue of mandatory vaccination is emotionally wrought. Unfortunately, like everything else in America today, it has been caught up in politics. Extremes on both sides of the political spectrum are more opposed to it than people at the center, and people on the center-right seem more skeptical than people on the center-left. Skepticism is healthy in a democracy. As the great jurist Learned Hand once said, “The spirit of liberty is the spirit that is not too sure that it is right.”
But, in a democracy, emotional issues are resolved under the rule of law — by legislation, executive orders and judicial review. That process is now going forward. There will probably be decisions both ways, and they will vary with the facts of each case. In the end, public health considerations almost certainly will prevail over any individual preferences. That is not a sign of tyranny. It is a sign of democracy at work.
Alan Dershowitz, professor emeritus for Harvard Law School, served on the legal team representing President Trump for the first Senate impeachment trial. He is author of the recent book, “Cancel Culture: The Latest Attack on Free Speech and Due Process,” and his podcast, “The Dershow,” is available on Spotify and YouTube. You will find him on Twitter @AlanDersh.