Introduction
  
  In the time since Covid-19 vaccines became available to the American public, it seemed almost a foregone conclusion that state and

Evaluating Compulsory Covid-19 Vaccination Mandates:

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2022-05-16 10:30:07

Introduction In the time since Covid-19 vaccines became available to the American public, it seemed almost a foregone conclusion that state and federal governments, given their extensive use of executive authority and emergency rulemaking powers since the start of the pandemic,1 would eventually attempt to exercise police powers to mandate compulsory vaccination. What has become questionable is whether there is a rational basis upon which government can justify a wholesale sweep of large sectors of the workforce and student populations into mandated vaccination under the threat of losing employment, education, or public accommodation access. As the pandemic has evolved, the government’s rationale for compulsory vaccination, to achieve herd immunity and stop the spread of Covid-19,2 is no longer compelling. Data reflects that Covid-19 is moving towards endemic status,3 and vaccines simply do not stop the transmission of the virus.4 Moreover, if the goal really is to achieve community levels of protection against Covid-19, then the government’s exclusion of its own past practice of including serological lab testing to prove immunization5 further demonstrates that compulsory vaccination, especially upon those who can prove natural immunity using laboratory testing, can no longer pass a rational basis test.6

Background On March 13, 2020, the same day most school districts around the United States closed their doors for what would be the last in-person school day in 2020,7 Pfizer Pharmaceuticals announced its five-point plan to address the coronavirus pandemic, signaling the start of a race by pharmaceutical companies around the globe to develop a Covid-19 vaccine.8  Four days later, Pfizer struck a deal with German drug manufacturer BioNTech to co-produce an mRNA vaccine the companies believed would stop the transmission of the novel coronavirus.9 On December 14, 2020, with clinical trials over and Emergency Use Authorization (EUA) secured from the Food and Drug Administration (FDA), the Pfizer-BioNTech Covid-19 vaccine was rolled out across the country with the first vaccines being administered that same day.10 By then, there had been over 17 million recorded cases of Covid-19 in the United States, and over 300,000 American lives lost.11 Four days later on December 18, Moderna received its EUA from the FDA,12 and by February 27, 2021, Johnson & Johnson became the third vaccine manufacturer in the United States to secure an EUA for its one-dose vaccine.13 With EUAs in place, and vaccine manufacturing ramping up production, the Centers for Disease Control and Prevention (CDC) issued guidance to state health departments to prioritize healthcare workers and residents in long-term care facilities to be part of the first wave of vaccine distribution (1A group).14  Subsequent vaccine rollout recommendations included seniors 75 years and older, as well as people deemed essential workers (1B group), followed by people aged 65 and older, essential workers not included in the 1B group, and immune-compromised individuals older than 16 years of age (1C group).15 Some states, including Oregon, opted to move other categories of workers (like teachers) to the front of the vaccine line, without regard for age, essential-work status (schools were still closed for in-person learning), or health status.16 As the CDC was expanding its recommendation in May 2021 that all individuals older than 12 years of age were eligible to get a vaccine,17 state governors and public health agencies were focused on incentivizing vaccination participation by using federal Coronavirus Aid, Relief and Economic Security (CARES) Act money and American Rescue Plan Act (ARPA) funds to give out everything from guns to college scholarships to million-dollar lotteries to entice their residents to obtain a vaccine.18 But even as the Covid-19 Delta variant began raging across the country in summer 2021, with cases climbing higher than even at the start of the pandemic,19 vaccine participation was significantly declining.20 From a peak of four and a half million daily doses administered on April 1, 2021, to one of the lowest vaccine participation days since vaccines were made available (July 11, 2021, only 214,140 doses administered),21 it had become evident that most people who wanted a vaccine or could be induced by an incentive to get a vaccine had already chosen to do so. Parallel to the decrease in voluntary vaccination participation, news outlets began reporting cases of break-through Covid-19 in fully vaccinated patients.22 New studies showed the Covid-19 vaccines, once hailed as a way out of the pandemic, were no longer as efficacious as once believed, with booster shots likely needed to maintain protection.23  These developments further increased vaccine hesitancy among those already disinclined to seek a Covid-19 vaccine. It also fueled a debate about the importance of considering naturally-acquired immunity, validated through positive serological testing, as a means of reaching herd immunity in the United States.24 This could be in lieu of vaccination for those who had already recovered from the disease, and would meet the requirement of having protective antibodies against Covid-19.25 However, as state governors and health departments grew frustrated by stagnating vaccine participation numbers and increasing Covid-19 caseloads driven by the Delta variant, some policymakers decided there would be no more incentives. Instead, they resorted to a proverbial stick approach – vaccine mandates.26 As of November 10, 2021, 22 states had implemented mandates impacting the employment of healthcare workers,27 public employees,28 school volunteers,29 and some public contractors (depending on the state),30 with California the first state in the nation to enact a statewide vaccine mandate on August 2, 2021.31  President Joe Biden enacted a similar mandate the following month for federal workers32 as well as for large private companies nationwide with more than 100 employees.33  Cities,34 counties,35 restaurants,36 and public venues like sporting arenas37 have also enacted vaccine policies that have excluded the unvaccinated and otherwise restricted individuals from public accommodations.  None of these vaccine mandates included natural immunity as an alternative to a vaccine requirement,38 and it has left those who have previously recovered from Covid-19 in an untenable position of being forced to choose between the possibility that a Covid-19 vaccine might negatively impact their health,39 or face the loss of valuable benefits like employment or education access. Historical Vaccination Requirements Treated Vaccine and Naturally-Acquired Immunity Against Communicable Diseases Equally; Post-Covid-19 Policies Disregard Past Practices At the beginning of the pandemic, Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases (NIAID) described that the path out of the pandemic was for the country to reach between 70 to 80 percent coverage of people with protective antibodies against Covid-19 in order to achieve herd immunity.40 At the time before vaccines were rolled out, there was a question of whether protective antibodies achieved through natural infection would be lasting and durable enough to prove efficacious in preventing reinfection and further disease transmission.41 Concern was expressed that the risks which come with natural infection were too great to be a means of achieving herd immunity.42 Moreover, states began adopting policies of social distancing, mask-wearing, and hygiene promotion, while vocally opposing any attempts by people to expose themselves to Covid-19 as a means of developing natural immunity.43 Generally speaking, the CDC defines “natural immunity” to a disease as “immunity acquired from exposure to the disease organism through infection with the actual disease” and “vaccine immunity” as “immunity acquired through the introduction of a killed or weakened form of the disease organism through vaccination.”44 However, according to the CDC, “A person is considered fully vaccinated against COVID-19 ≥2 weeks after receipt of the second dose in a 2-dose series (Pfizer-BioNTech and Moderna) or ≥2 weeks after receipt of the single dose of the Janssen Vaccine.”45 Though the CDC recognizes that a prior infection likely confers protective antibodies, the agency (1) does not include natural immunity in its lengthy descriptions of vaccine configurations one might take to prove he or she has developed protective antibodies, and (2) recommends strongly that people with prior infection receive the Covid-19 vaccine protocol in order to be considered fully vaccinated.46 This stance is contrary to the CDC’s position that naturally-acquired immunity for other communicable diseases generates “long-lasting and sometimes-lifelong” immunity,47 including in its analyses of highly contagious and transmissible diseases such as chickenpox,48 measles,49 and rubella,50 all of which the CDC allows the use of positive tests results from laboratory testing as presumptive evidence for proof of natural immunity. The CDC neither requires nor recommends a vaccine for any of those diseases in cases where someone can prove natural immunity through laboratory testing as the CDC has for Covid-19-recovered patients.51 The CDC’s position to exclude natural immunity is based upon the agency’s position that vaccines are superior to natural immunity because the duration of natural immunity is unknown.52 However, a recent Johns Hopkins University study of unvaccinated adults showed that 99 percent of those who had a previously lab-confirmed Covid-19 infection showed antibodies at protective levels.53 The CDC has not updated its position on natural immunity, even though its own study in January 2022 determined that natural immunity “protects against COVID-19 and related hospitalization, and that surviving a previous infection protects against reinfection and related hospitalization.”54 In fact, prior to the Covid-19 pandemic, in healthcare environments,55 most public schools,56 and institutions of higher education,57 serological testing could suffice to meet vaccination requirements for workplace or school attendance. Very few industries outside of healthcare required compulsory vaccination as a condition of employment. While students in all 50 states are required to have proof of immunization or valid exemptions to attend public schools,58 such vaccination requirements rarely have extended to public school staff.59 Only 34 states require some, but not all, vaccinations as a condition of higher education enrollment, and no state has statutorily required a Covid-19 vaccination for college or university admission.60 Further, the Occupational Safety and Health Administration (OSHA) which sought to implement a nationwide Covid-19 mandate for employers with 100 or more employees,61 prior to the pandemic only required that employers pay for a vaccine like the Hepatitis B vaccine, if an employee wanted a vaccine to be protected from possible transmission of the disease at work.62 The CDC has significantly diverged from its own historical immunization policies when comparing what is considered immunized for Covid-19 versus the criterion applied to other communicable diseases. In an October 2021 analysis, the CDC cited flawed data to support its position that artificial immunity to Covid-19 through vaccination is better than natural immunity.63  The CDC’s messaging that vaccines are better than natural immunity has become an outlying view when contrasted with a growing body of research conducted since the beginning of the pandemic which concludes otherwise.64 That includes groundbreaking research from Israel which was one of the first broad-based studies to document waning immunity from mRNA vaccines and lasting immunity from natural infections.65 Troublesome with the CDC’s release of its own study is the information purposefully lacking from the findings.  Missing is how the agency stopped tracking breakthrough cases of Covid-19 among fully vaccinated patients, instead opting to only track breakthrough hospitalizations and deaths.66 The CDC’s justification for this policy change was so the agency could “maximize the quality of the data collected” but some medical and public health officials questioned whether this choice would negatively impact the ability to predict additional Covid-19 outbreaks. The lack of vaccine breakthrough information for non-hospitalized cases or deaths artificially makes vaccinations look more robust and durable than they actually are. More problematic is that in response to a Freedom of Information Act request by the law firm Siri & Glimstad, LLP to determine whether the agency was monitoring reinfections, the CDC was forced to acknowledge in November 2021 that it had no data to confirm that any individual with a prior Covid-19 infection had become reinfected and transmitted the disease to another patient.67 The CDC’s inability to produce scientific data demonstrating that natural immunity was less durable in preventing reinfection was a stark contrast to news headlines resulting from the agency’s communications with the media that vaccines were better at protecting people than natural immunity.68 The United States has achieved just 66 percent of the population who meet the CDC guidelines for fully-vaccinated status.69 Defense of vaccine mandates by government health agencies has rested on the need to reach herd immunity, yet the federal government, for no stated rationale, has not included over 80 million Americans with a prior Covid-19 infection towards that goal.70 If those who have naturally recovered from Covid-19 are allowed to demonstrate protective antibodies through serological testing, it could bring America’s herd immunity efforts to 80 percent or greater.71 Yet in November 2021, the CDC finally acknowledged that herd immunity is a near impossibility, even if the nation was fully vaccinated, as the virus continues to mutate and is capable of evading vaccines.72  Meanwhile, doctors have begun to ring a bell that treatments, not vaccines, are the country’s path out of Covid-19.73 One state whose health department has consistently tracked all vaccination breakthrough cases is Massachusetts. Currently, nearly 80 percent of the state’s five years and older population are fully vaccinated (5,381,216 residents); recorded breakthrough Covid-19 cases have occurred in 8.5 percent of vaccinated patients (459,123 cases), resulting in 8,071 hospitalizations and an 11 percent morbidity rate (2,222 deaths).74 In Minnesota, where nearly 70 percent of its residents meet the CDC definition of fully vaccinated,75 a recently published longitudinal report from the state’s department of health showed that as of March 20, 2022, over one in 10 vaccinated Minnesotans has had a breakthrough case of Covid-19 and positive breakthroughs represented 26 percent of all cases recorded since the beginning of the pandemic in 2020 (including cases recorded before the availability of vaccines).76 When comparing deaths between vaccinated and unvaccinated residents and benchmarking morbidity rates at a point when vaccines were widely available, 15.6 percent of 12,362 cumulative Covid-19 deaths occurred in fully-vaccinated patients. This phenomenon of breakthrough cases is happening in every state around the nation. The emerging data about breakthrough Covid-19 cases, including an analysis that upwards of 15 percent of breakthrough cases have resulted in hospitalizations77 makes clear that as coronavirus transmission is moving from pandemic to endemic, though Covid-19 vaccines may reduce morbidity rates, they have failed at fully stopping coronavirus transmission as vaccines have for other communicable disease vaccines like smallpox and polio.78 Comparatively, several states where residents have strongly resisted Covid-19 vaccines, including Idaho with a 55 percent fully-vaccinated rate, have lower morbidity rates per capita than a highly-vaccinated state like Massachusetts.79 Published reports have determined natural immunity is as equally as protective as vaccine-derived immunity, with some studies demonstrating reinfection rates at roughly one percent for a recovered, unvaccinated individual.80 In light of that data, if vaccine mandates for employment, education environments, and places of public accommodation are going to be in effect, the mandates should include natural immunity to prevent unnecessary discrimination in these settings. Covid-19 Vaccine Mandates Go Beyond Police Powers Granted by Jacobson v. Massachusetts; State Policies No Longer Meet the Rational Basis Test The source of authority many courts have relied upon in determining whether vaccine mandates are a lawful exercise of state police powers is Jacobson v. Commonwealth of Massachusetts.81 During a smallpox outbreak in 1905, the local board of health in Cambridge, Massachusetts, acting under statutory authority, passed an ordinance that each adult citizen would be required to be vaccinated or face a five-dollar fine82 ($157.15 in today’s dollars).83 There were limited exceptions to the mandate for adults who were under guardianship84 and children if a physician believed a child was an unfit candidate for a vaccine.85 Henning Jacobson, who had had a negative reaction to a vaccine during his childhood, believed that compulsory vaccination was an affront to individual liberty rights and “nothing short of an assault upon his person.”86 But the court rejected Jacobson’s view, stating that “[s]ociety based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.”87 Further, the court made the argument that “[t]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.”88 Even though levels of tiered scrutiny in judicial decisions relating to due process and equal protection had yet to come into existence in 1905 when Jacobson was decided, the holding looks much like the “rational basis” analysis that courts use today.89 In Jacobson, the court found that the state had a legitimate interest in eliminating the smallpox contagion, and the court rationalized that the community had the right to protect itself through “methods most usually employed to eradicate that disease.” In Jacobson’s case, this meant through vaccination.90 The court went on to say that while there is a “sphere within” where individuals most certainly have their own will over the government, it was also true that if the government was faced with the “pressure of great dangers” individuals may be subjected to reasonable restraint and regulation.91  It was clear that at the time the majority sincerely believed (1) the vaccine would “stamp out” and “eradicate” smallpox if people were vaccinated;92 (2) vaccination would greatly prevent disease transmission;93 and (3) that the state’s vaccination plan had a “real and substantial relation to the protection of the public health and safety” which no one, including Jacobson, had successfully refuted.94 Some 254 case holdings in lawsuits opposing mandates and executive orders, filed since the beginning of the pandemic,95 have relied upon the Jacobson holding in determining that most Covid-19 plaintiffs have no basis from which to seek relief.96 Yet there are three points in the Jacobson holding worth pointing out which seemingly many lawyers who have argued against vaccine mandate cases have failed to apply. (1) Judge Harlan, writing for the majority, noted that although the court supported the Massachusetts statute allowing compulsory vaccination, the court would “not be inclined to hold that the statute establishes the absolute right that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject for vaccination” which the court also interpreted to mean if vaccinations could impair one’s health or bring about death.97 (2) The court made clear that the decision only covered the immediate case.98 It left open that cases with different factual circumstances or future public health crises could allow the police powers in a public health crisis to be revisited judicially using new analyses. The Covid-19 vaccine mandates are in no way similar to the fact pattern in Jacobson when evaluating either the rationale for the mandates based on vaccine efficacy, or the severity and proportionality of the punishment for failure to comply with the Massachusetts mandate in 1905 (a five-dollar fine) as compared to the high monetary costs of being terminated from employment and the social burdens of sanctions like being denied access to public accommodation or unemployment benefits related to being terminated for failure to comply with vaccine mandates.9 (3) A footnote in Jacobson which the court relied upon in its historical analysis about the efficacy of vaccines included data that separated out those who had naturally been exposed to smallpox as its own category of the population.100 Importantly, one can draw a conclusion from this early study referenced in the Jacobson footnote that at a minimum, the court was peripherally aware that those who had survived smallpox developed some level of natural immunity, and that as a matter of policy, the likelihood of those who suffered smallpox were unlikely to suffer again. Those three elements from Jacobson could provide a plaintiff’s attorney bringing suit against a state vaccine mandate a strong foundation from which to make the argument that there is no rational basis for blanket vaccine mandate policies which exclude natural immunity from counting toward public health goals for herd immunity, and that any mandate allowed to be implemented should parse out the naturally-recovered population from Covid-19 as exempt.  Courts and Legislative Bodies Should Work to Further Secure the Rights of Individual           Privacy and Medical Choice Free from Compulsory Vaccination Requirements Henning Jacobson had the right of it in 1905 when he described mandated vaccines as an assault on his person.101 Although the framework of judicial precedence which has since established bodily autonomy and individual privacy rights did not exist at the time, the facts of his case square with the themes embodied in seminal cases which resulted in the application of strict scrutiny when the loss of a fundamental right is implicated by a public policy decision.102 Even if the courts would not find a reason to apply strict scrutiny to Jacobson’s complaint (or to current Covid-19 vaccine mandates), courts should reevaluate what information they use to conduct a rational basis test to determine whether the states’ police powers in implementing Covid-19 mandates are still valid.  If courts persist in applying Jacobson in a manner which gives states the benefit of the doubt that a rational basis exists for upholding vaccine mandates, then state legislatures should vote to change the source of authority for vaccine mandates in their states, and subsequently, pass meaningful legislation to protect privacy and bodily autonomy rights for the voters they represent. Courts Should Recognize Privacy Rights Regarding Vaccination Decisions and Apply Strict Scrutiny When Evaluating Covid-19 Vaccine Mandate Cases There is no rational relationship to a legitimate state purpose by states implementing Covid-19 vaccine mandates which demand an individual be required to comply with compulsory vaccination or forgo highly-valuable benefits. This is particularly so when some benefits, such as employment or college admission, are not always conferred by the state or federal government. Nor is the relationship rational when comparing the Jacobson decision to the broad overreach of today’s Covid-19 vaccine mandates. First, in Jacobson, the punishment for failure to accept a vaccine was a nominal five-dollar penalty.103 Conversely, in a case where an airline pilots’ trade association was denied injunctive relief against its employer’s vaccine mandate,104 the forfeit of private-sector employment for refusing a vaccine cost the average pilot over $63,000 in annual salary, not including fringe benefits.105 That degree of punitive financial burden and level of coercive restriction on the individual is beyond anything contemplated by the Jacobson court. Second, the court in Jacobson relied upon data that contemplated separately the vaccinated and unvaccinated populations from those with natural immunity.106 As the United States has surpassed 80 million positive Covid-19 cases,107 today’s courts should recall that the Jacobson court was unprepared to hold that vaccination mandate statutes as the absolute rule “if it be apparent or can be shown with reasonable certainty that he is not a fit subject of vaccination.”108 For “long-covid” patients,109 medical professionals report that symptoms are exacerbated for some patients with Post-COVID Syndrome after administering to them a Covid-19 vaccine.110 As a foundational privacy and fundamental rights judicial holding, the court in Roe v. Wade wrote that the “right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, or,….in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”111 The determination that the medical choice was left to the patient and a “responsible physician” to make during the private consultation of a doctor and a patient112 speaks to the heart of the matter regarding the choice for doctors with legitimate concerns to be able to issue a valid medical exemption which will be recognized by a government agency as meeting the requirement for protective antibody coverage. Lastly, the majority in Jacobson did not foreclose on the possibility of deciding future cases with other fact patterns so that it might arrive at new decisions.113 Faced with new information such as (1) Covid-19 vaccines do not have the efficacy to “eradicate” the disease, as was the basis for the Jacobson holding with smallpox vaccines,114 and (2) Covid-19 vaccines require the possibility of regular boosters to maintain immunity,115 preservation of personal privacy and individual bodily autonomy outweighs the states’ interests in compulsory vaccination as the only method to reach herd immunity or stop virus transmission.  Jacobson should be reevaluated through a strict scrutiny lens of the Fourteenth Amendment’s due process and equal protection clauses, and the right to refuse a vaccination without incurring a detrimental loss to personal liberty should be included as one of the penumbrae of privacy rights afforded by the Constitution under the Roe court’s interpretation of the Ninth Amendment.116 It is important to note that while federal courts have issued injunctive relief to stay some Covid-19 vaccine mandates, the holdings were determined not by any change to overturn Jacobson, but rather, because courts determined that the Occupational Safety and Health Administration’s (OSHA)’s source of authority to execute Emergency Temporary Standards (ETS) was not broad enough to cover a workplace vaccination mandate of the size and scope in which the Biden administration had envisioned.117 In fact, in BTS Holdings v. OSHA, the court may have strengthened the states’ arguments by highlighting Jacobson as the source of the states’ power to implement such mandates, concluding that the power to direct public health initiatives like vaccine mandates was a state’s right, not for the federal government to enact through ETS rulemaking.118 The courts’ reluctance to overturn Jacobson puts pressure to act instead on state legislatures to protect individual rights. State Legislatures Should Pass Substantive Vaccine Policies Which Include Language to Better Protect Individual Freedoms and Privacy Rights Given the short time frame that many of the state vaccine mandates went into effect, it would have been preferable if courts addressed the matter directly and expediently. However, absent any new change in judicial philosophy, it is time for state lawmakers to act. Most of the Covid-19 vaccine mandates were developed through executive order119 leaving the possibility open that state legislatures could pull back executive power and pass legislation that protects people from losing employment, education, and public accommodations access. Thirteen state legislatures so far have taken the affirmative step to either ban vaccine mandates altogether, or include broad exemptions including serological testing demonstrating proof of prior Covid-19 infection120 while some 22  states have banned vaccine passports which would otherwise segregate citizens based on their health status.121 In contrast, nearly a dozen states have gone the opposite direction and have, or will be soon, rolling out digital systems so that residents can provide proof positive of vaccination status on demand.122 Another public policy initiative taking hold in some states, and in Congress, is the idea of statutory inclusion of proof of natural immunity and strengthening other vaccine exemptions as a way of bypassing Covid-19 vaccine mandates while still protecting public health. On November 18, 2021, Florida Governor Ron DeSantis signed House Bill 1B to address employer mandates. Specifically, the measure provided that an employer may not require Covid-19 vaccines as a condition of employment without broad exemptions a worker might claim, including having recovered from a prior Covid-19 infection.123 Utah’s legislature met in special session in November 2021 to address vaccine mandates. While Utah Senate Bill 2004 does not address natural immunity specifically, the measure includes three broad exemptions if accepting a vaccine would (1) be injurious to the employee’s health and well-being; (2) conflict with a sincerely held religious belief; and (3) conflict with a sincerely held personal belief.124 Subsection (2)(a) of the measure which speaks to the exemption for an employee’s health and well-being could encapsulate those Utah workers who have had a Covid-19 infection, and whose physicians believe they should be excluded from a subsequent vaccination.125 The measure also directs employers to cover the cost of Covid-19 testing and disallows an employer from keeping any proof of vaccination except in limited circumstances.126 Utah’s legislation, as passed into law effective November 16, 2021, provides Utah residents with broad protections against compulsory vaccination. West Virginia and Arkansas also have natural immunity carved into their state statutes, and at least seven other states are considering amending their laws to include natural immunity as an exemption to Covid-19 vaccine mandates.127 At the federal level, Senator Mike Lee (R-UT) has introduced legislation called the “Natural Immunity is Real Act” designed to require the federal government to include natural immunity as a provision to any mandates enacted when promulgating agency rules.128 The bill was introduced and referred to the Senate Committee on Health, Education, Labor and Pensions on September 23, 2021. No action has been taken as of yet.129 Although statutory changes provide protections to those residing in states where new laws have been enacted, millions of Americans who have been subjected to workplace vaccine mandates without exemptions, including Covid-recovered patients with serological proof of immunity, do not equally share in having their individual rights to privacy, bodily autonomy, and medical freedom more firmly secured. Conclusion In defending the Commonwealth of Massachusetts’ police powers to enforce compulsory vaccination under threat of criminal sanction, the Supreme Court majority in Jacobson wrote that “[s]ociety based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.” It is unlikely however, that the Jacobson court could have foreseen that by conveying such broad police powers to states in a public health emergency, states would use that power in ways that have restricted people’s ability to access employment, educational opportunities, and even healthcare. Given the broad expanse of how police powers in Jacobson were applied to the Covid-19 pandemic, the Supreme Court should accept a case that would give the court a chance to reconsider Jacobson through a lens of strict scrutiny in light of the facts that (1) vaccines are not preventing disease transmission (compared to the smallpox vaccine, which successfully eradicated the disease) and (2) the penalty for non-compliance with vaccine mandates in the form of lost wages, pensions, college scholarships, and loss of access to public accommodations is too severe. Alternatively, if the court will not act, then state legislatures should follow the course of Florida and Utah to secure, at a minimum, protections for the 80 million Americans (and counting) who have recovered with natural immunity to Covid-19. Nothing in the Jacobson decision shows the court contemplated that compulsory vaccination as a requisite to participate in society is an appropriate application of a state’s police power. It’s time to reconsider whether the grant of such broad authority in 1905 to compel vaccinations, particularly for the naturally-immune population, can be justified in 2022.

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