From the start of the pandemic, we’ve known several things about this coronavirus that make it particularly dangerous. One is its high level of infectiousness, which allows it to quickly overwhelm health care infrastructure. Another is its ability to constantly evolve and change, rapidly upending what we thought we knew. And the other is the vastness of what we don’t know about it, such as the exact nature of the mysterious long-term symptoms it leaves some sufferers with.
So it is only three months after the CDC told people they could unmask again to a hail of criticism from public health experts, and a little over a month since President Joe Biden all but “declared independence” from the pandemic, that the United States seems to be backsliding to the bad old days of 2020’s impossibly dark winter. Cases and hospitalizations are at their highest since February, hospitals are once again being overwhelmed with COVID patients, and an ever growing number of children are ending up in intensive care. According to one model, Americans can expect anywhere between eight hundred fifty and four thousand deaths per day by October this year.
The way out of this is well-established, as modeled by countries like Vietnam, Iceland, New Zealand, and Taiwan: a strict, short-term stay-at-home order, in which both businesses and workers are fully underwritten (including, ideally, with a pause on evictions, foreclosures, bills, and other payments), allowing a comprehensive quarantine and contact-tracing regime to eliminate community spread of the virus from the country entirely, before turning to measures to keep it out afterward. Unfortunately, despite consistently robust polling throughout the winter, this idea has been made a political nonstarter in the United States ever since Biden preemptively ruled it out, with public health experts quickly following the president’s lead.
So with Trump’s once-pilloried vaccine-only strategy now the national consensus, the question is how to get as many jabs in arms as possible, as quickly as possible. Some states and localities have already turned to narrow vaccine mandates as a solution, focusing on state employees and health care workers, while New York is so far the only place to follow France’s lead and implement a far broader measure, mandating vaccination for entry into certain indoor spaces, leading others to start considering the same step.
How should the Left — or anyone wanting to balance efforts to prevent the mass death of working people with a care for civil liberties — feel about such a measure? And is it the unprecedented, authoritarian power grab that some have attempted to paint it as?
1) Vaccine mandates are far from unprecedented in the United States.
However you might feel about the idea of vaccine mandates, they’re not some scary, new creation of our quasi-authoritarian age. Most people are familiar with the most common form they already take in modern America: vaccination requirements for children before they can enter schools, some version of which every single state in the country has on the books. Nearly half of all states imposed them by the start of the twentieth century to deal with the scourge of smallpox, with requirements expanding and spreading throughout the country after the 1960s, thanks in part to the development of a measles vaccine in 1963.
Limited mandates for adults have a similarly long history. The military has required all soldiers to get vaccinated for a variety of diseases since at least as far back as the Revolutionary War, when George Washington decided that inoculating every single recruit against smallpox was the only way he’d be able to defeat the British.
In 1888, the New York Times reported that, after a first round of “considerable opposition,” every member of the Brooklyn police force submitted to a city order to get vaccinated against the disease, except for two officers who were threatened with a fine of ten days’ pay and, eventually, dismissal. During the Great Vermont Flood of 1927, all road workers who had worked in flooded areas were stopped while driving and ordered to get shots for typhoid.
But these mandates have also taken much broader forms, with numerous examples of states and cities compelling all of their residents to get shots without exception. Massachusetts led the way, making smallpox vaccination compulsory to attend public school in 1855. The Brooklyn and New York health departments embarked on a policy of de facto compulsory vaccination to deal with outbreaks in 1893–94 and 1901–2. By the latter year, Connecticut, Delaware, Georgia, and Kentucky all had general compulsory vaccination statutes. Even the town of Muncie, Indiana put in place citywide mandatory vaccinations in response to an 1893 outbreak.
The fraught battles at the time between authorities and anti-vaccinationists — which echo today’s tussles to a remarkable extent — culminated in the Supreme Court’s well-known 1905 Jacobson v. Massachusett decision, which upheld, by a seven to two vote, state governments’ right to enact mandatory vaccination. In his opinion for the majority, Justice John Marshall Harlan pointed to the “social compact” to argue that “there are manifold restraints to which every person is necessarily subject for the common good.” Crucially, he created a health-based exception for vaccine requirements that hadn’t existed in Massachusetts law, and he also left enough leeway for individual liberty that the decision would be later used to establish a right to privacy for married couples and strike down the contraception bans.
Despite the decision, political conflict meant mandatory vaccination still wasn’t widely taken up across the country. Still, by 1927, thirteen states had authorized it, many of them Southern, like Alabama, Georgia, Mississippi, Tennessee, and the Carolinas, as well as Wyoming, Kansas, and Pennsylvania. All of this points to some version of a vaccine mandate as a relatively mainstream, if controversial, concept in US history, and not some alien, totalitarian idea only recently cooked up to crush essential freedoms.
2) Mandates pale in comparison to many invasive measures already forced on, and accepted by, Americans in the name of security.
Civil liberties concerns about vaccine mandates aren’t unreasonable. The right to not have a foreign object or substance inserted your body is a fundamental element of privacy and bodily autonomy, the same principles on which we might base opposition to the drug-testing of workers or welfare recipients, as well as a variety of other shocking oversteps. Socialists should be deeply concerned with the safeguarding of civil liberties from authoritarian institutions, whether in the private sector or those embedded in our existing, nominally democratic forms of government.
But it’s possible to have a broad, expansive commitment to civil liberties while stopping short of absolutism. You can, for example, be vehemently against the threats that tech-state censorship and authoritarian state institutions pose to freedom of speech and assembly — to the point of defending those rights for people whose politics you find repugnant — but still call for strict limits on money in politics, which is a type of speech restriction. Similarly, it’s possible to oppose mandatory drug-testing and nonconsensual medical experiments while seeing vaccine mandates as a pragmatic solution to an exceptional and life-threatening crisis.
This is already the thinking that much of the US public and leadership have either accepted or begrudgingly gone along with when it comes to “national security” — when it’s defined as the threat of terrorists or foreign governments taking American lives, anyway.
When just under three thousand people died in the September 11 attacks, the US government instituted a variety of radically invasive measures that are still in place today: an unfathomably vast surveillance state collecting and storing data on almost everything we say and do on our various devices; a massively enlarged security bureaucracy that often targets law-abiding people and dissidents; the erosion of basic due process rights; and, spurred by a different attempted attack, an airport security regime that forces travelers and their kids to get zapped by potentially harmful radiation, or be groped by government agents. If their rampant violation of privacy rights wasn’t bad enough, these measures also happen to be consistently ineffective at actually protecting people from terrorism.
By contrast, while there’s mounting evidence vaccines don’t prevent vaccinated people from passing on the latest mutation of the virus, it’s clear they are remarkably effective at stopping hospitalization and death for those who do get it. And unlike terrorism, which — not counting the wildly exceptional event caused by basic security failures on September 11 — led to an average of only thirty-six American deaths worldwide between 1995 and 2016, the coronavirus pandemic has been incredibly deadly, killing more than six hundred thousand people within US borders alone after only a year and five months. In fact, from December 2020 to early February of this year, the pandemic in the United States was inflicting well over the 9/11 death toll every day.
In other words, COVID is a threat to life greater by many orders of magnitude than terrorism; and unlike the civil liberties–shredding solutions that have been pursued as a response to terrorism, the vaccine actually works to prevent loss of life. If we’re going to accept a limited trade-off of privacy for the sake of security, it’s pretty clear which one is the better option.
Fears of a slippery slope — that mandating vaccinations will lead us down a road that ends up somewhere in the vicinity of fascism — are also understandable. But looking at the history of totalitarian regimes, it wasn’t mandatory immunization programs that gave them tyrannical power over their people. Rather, it was things like secret police forces, widespread government surveillance, and harsh punishment of criticism and dissent, the architecture for which has already been set up to combat terrorism, and which has never stopped growing.
There’s a strong argument to be made that, to maximize individual freedom, vaccinating as many people as possible should be paired with dismantling the structures of the “war on terror.”
3) Any mandate needs to be carefully and thoughtfully designed.
Even so, critics are right that, if not carefully guarded against, it’s possible for vaccine requirements to end up in some ugly places. The Jacobson decision was, horrifyingly, stretched in 1927 to justify various state eugenics laws of forced sterilization, on the basis that “it is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”
This was a product of its historical context. Eugenics had gained traction with scientists by the turn of the century, and the movement was hitting its peak by the 1920s. And the Supreme Court’s 1927 decision ignored the right to privacy Harlan had carved out in his opinion two decades earlier. Wider social developments, in other words, drove this decision, with the Supreme Court dubiously using Jacobson to justify a dangerous set of measures that had horrifyingly gained purchase across the world in that era. Still, it suggests the kinds of perils that can emerge from a vaccine mandate policy that is badly thought out.
It would also be a mistake to model any of today’s vaccine mandates on those set up in the early twentieth century and before, which relied on either levying fines or simply arresting and prosecuting those who refused. That era saw “virus squads” of doctors and police going door to door in neighborhoods, with officers sometimes beating and holding people down so they could get the shots.
The programs were also notoriously inconsistently applied according to the prejudices of that era, targeting poor, working-class, homeless, non-white, and immigrant communities. Wealthy neighborhoods tended to miss out on this treatment, and if a well-off unvaccinated person was caught and fined, they of course could simply pay their way out of it.
We’d want to avoid at all costs some of the disturbing scenes that came out of that time period. In Philadelphia in 1903, for instance, forty pairs of doctors and policemen entered a three-hundred-person-strong African-American congregation on a Sunday night, refusing to let them leave until they’d all been vaccinated. One 1924 report recounts how men claiming to be public health officials were entering barbershops and billiard halls on Chicago’s south side with a police officer in tow, demanding the men inside roll up their sleeves and get vaccinated without explanation. This is the kind of encroachment that is not only unacceptable on its face, but only likely to drive up resistance to this and future vaccines.
Luckily, localities in New York City have shown there are better ways to carry out a mandate that don’t involve intimidating people with police power, focusing instead on restricting access to certain amenities — restaurants, cinemas, and gyms, for example — to only those who can prove they’ve been inoculated. This has a clear public health justification beyond simply nudging people to get vaccinated: with kids still unvaccinated and vulnerable to the virus, and with their vaccinated family members potentially able to transmit the virus to them, it makes sense to prevent unvaccinated people who may be carrying the virus from places where they can transmit it to others.
While the US federalist system means the federal government is probably limited in what it can do here, one obvious course of action is for Biden to make vaccines a requirement for mass transport including airports, as he’s already done for masks. This would have the additional benefit of compelling more affluent vaccine skeptics, who would effectively be barred from traveling in anything other than a car or private jet, to get their shots. But needless to say, measures like these will only be fair and workable as long as the vaccine remains free and easily accessible to everyone.
A Reluctant Trade-Off
At the end of the day, while a vaccine mandate is an important strategy, it should only be one of many used to bring the vaccination percentage up as high as possible. The reasons people are still unvaccinated are complicated, like a lack of accessibility, a fear of surprise billing, and a lack of trust in the government, and designing solutions around those factors is key. Similarly, it’s mystifying that the FDA took until the end of July to decide to accelerate its approval process for the Pfizer vaccine, given that its lack of sign-off has consistently been cited as one of the leading drivers of vaccine hesitancy.
In an ideal world, we would never have to turn to mandating vaccines. But given the continuing and horrifying scale of the pandemic’s threat to life, its dangers to children who won’t be vaccinated for some time, the ongoing economic disruption the virus’ spread among the unvaccinated will cause, and the fact that US society has already decided it’s willing to make a (far worse and more dangerous) trade-off of privacy for security, New York–style vaccine mandates are an appropriate and measured response. They should be understood as a unique exception — but we’re living through exceptional times.