Can Employers Require Vaccines? In Courts, the Answer Has Been Yes.

For over a century, decisions have favored states’ power.
By Sandra McDaniel

President Joe Biden has ordered vaccinations for American workers to combat the sharp increase in Covid-19 infections as the Delta variant spreads. Can he do that?

The requirements cover about 100 million Americans: federal employees and contractors, health care workers and private sector employees at companies with more than 100 workers.

The president expressed frustration that a minority of Americans have so far refused the Covid vaccine. “We’ve been patient,” the president said. “But our patience is wearing thin, and your refusal has cost all of us.”

Governors in a handful of states are vowing to challenge the new requirements in court, but constitutional experts say the president is likely on solid legal ground. A long history of legal precedents gives the government the authority to act in the interest of public health and safe workplaces.

That authority has survived a series of challenges in landmark cases that began with a Massachusetts pastor who refused the smallpox vaccine nearly a century ago.

Jacobson v. Commonwealth Of Massachusetts (1905)

During a smallpox outbreak in Boston, the state mandated vaccinations for all. Henning Jacobson, a pastor, refused, claiming ill effects from past vaccines. His refusal was upheld in Massachusetts, but the Supreme Court overturned that ruling. Writing for the majority, Justice John Harlan said the government had extensive powers to curtail civil liberties in the name of public health.

“A community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” Justice Harlan wrote.

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Supreme Court Justice John Marshall Harlan

Zucht v. King (1922)

The ruling in Jacobson vs. Massachusetts was invoked in a challenge of a vaccination requirement to attend school. High school student Rosalyn Zucht refused the smallpox vaccine in 1922, claiming there was no outbreak, and that she was being deprived of her liberty to opt out. The Supreme Court found that the Jacobson ruling and others had settled that states could “delegate to a municipality authority to determine under what conditions health regulations shall become operative.”

Buck v. Bell (1927)

Five years later in Buck v. Bell, the Court invoked Jacobson, ruling that forced sterilization of institutionalized women to promote the “health of the patient and the welfare of society” was allowed, in a case regarded today as a shameful marker of the practice of eugenics. Justice Oliver Wendell Holmes Jr. observed that “the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”

Bridges v. Houston Methodist Hospital (2021)

Nurses sued to block a vaccine requirement at Houston Methodist Hospital, arguing that because Covid vaccines fell under Emergency Use Authorization, they were tantamount to Nazi-era medical experiments. A federal judge rejected the request, citing the Jacobson precedent, and blasted the comparison as “reprehensible.” Lawyers for the nurses have vowed to appeal the case to the Supreme Court.

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Houston Methodist Baytown Hospital (Photo: AP Images)
SANDRA McDANIEL is a producer at Retro Report. This article first appeared in Retro Report’s free weekly newsletter. Subscribe and receive lessons from history in your mailbox. Follow us on Twitter @RetroReport.