Shannon Porterfield
Due to the recent outbreak of SARS-CoV-2 (“COVID-19”), colleges and universities across the United States (“U.S.”) are requiring students to get vaccinated against the flu and submit documentation of such immunization to return to campus for the coming spring semester.[1] As the rates of flu immunizations among Americans are typically low without mandates, the rationale for enacting such policies is based in public health ideals, with a strong basis in public health law dating back to the twentieth century.[2]
Without mandates, the vaccination rates for Americans who voluntarily received a flu vaccination in the 2019-2020 season was 63.8% for children between the age of six months to seventeen years of age, and 48.4% for adults over the age of eighteen.[3] While these numbers are less than ideal in times of general societal health, in a pandemic these numbers leave the U.S. susceptible to overwhelming consumptions of health care resources.[4] The Centers for Disease Control and Prevention estimate that there are between nine to forty-five million seasonal cases of the flu each year leading to between 140,000 to 810,000 hospitalizations and 12,000 to 61,000 deaths in the U.S. alone.[5] These statistics, coupled with rising hospitalizations and near capacity intensive care units as a result of COVID-19 cases have created the dire need to reduce flu outbreaks this year.[6] In the past, school vaccination mandates have been a very effective way of minimizing outbreaks and increasing vaccination rates.[7]
Enacting mandatory vaccinations is an issue of state law, as state governments have “the absolute right” to require vaccinations.[8] As such, some states, like Massachusetts, are choosing to implement these mandates on a statewide level with all schools in the state enforcing such policies, while others have left the decision up to individual universities.[9] Colleges and universities implementing such policies seek to do so to avoid a massive flu outbreak amid a COVID-19 pandemic.[10]
Despite backlash from many who oppose the implementation of such policies, the legal basis for implementing mandatory immunizations in times of public health crises is well-rooted in case law, beginning with Jacobsen v. Massachusetts.[11] In Jacobsen, the Supreme Court held that a state can mandate vaccinations through the exercise of their police powers when doing so is necessary to protect the public health or safety.[12] This power also extends to states in allowing them to mandate vaccinations for school enrollment.[13] Thus, there is established precedent that individual freedoms are not absolute when those freedoms risk the public health and safety.[14]
This precedent still has standing today.[15] In 2019, Brooklyn, New York experienced a measles outbreak that the state of New York ultimately declared a public health emergency.[16] The state responded with a mandatory measles vaccination policy in the affected areas.[17] Here, the state vaccination mandate was upheld as a valid exercise of New York’s police powers in requiring that children be vaccinated before attending school.[18] Since its initial outbreak, COVID-19 has taken the lives of over 1.5 million people and infected over 65 million worldwide; it is indisputably a public health crisis, like those aforementioned.[19] In following precedent, the mandatory vaccination policies emerging on college campuses are aimed to protect the public health and safety and as such are legally supported in nature.[20]
Despite the legal basis and anticipated benefits of enacting such vaccination policies, these policies are being met with intense backlash and hesitation.[21] Many have sentiments of fear and distrust that mandating flu vaccines is the first step to mandating other vaccines on a statewide level, including COVID-19 vaccines when they become available.[22] While flu vaccinations are proven to be relatively safe,[23] COVID-19 vaccines have undergone an accelerated process that many are skeptical of, especially given concerns that a vaccine will be approved before there is a complete understanding of the vaccine’s safety and effectiveness.[24] Even devout supporters of vaccinations are leery of receiving the COVID-19 vaccination when it becomes available.[25] Thus, mandating flu vaccinations, and potentially COVID-19 vaccinations on a statewide level, may have significantly detrimental implications on the reception of future vaccinations if people are forced to obtain a vaccination they are uncomfortable receiving.[26] With many already opposed to vaccines, this heightened distrust could significantly stifle vaccination rates going forward.[27]
Given these implications, the decision to mandate COVID-19 vaccinations is one that should be met with more discussion and reservation than the decision to mandate flu immunizations on college campuses.[28] While vaccinations are crucial to achieving herd immunity and protecting the public health and safety, [29] with the already present general resistance to vaccinations, future decisions must be made with caution so that voluntary vaccinations will not be stifled moving forward.[30]
[1] See, e.g., Mandatory Flu Vaccinations, Wake Forest Univ., https://shs.wfu.edu/services/flu-shots/ (last visited Dec. 3, 2020); New Flu Vaccination Requirement for UC Students, Faculty and Staff, Univ. of Cal. (Aug. 7, 2020), https://ucnet.universityofcalifornia.edu/news/2020/08/new-flu-vaccine-requirement-for-uc-student-faculty-and-staff.html#:~:text=To%20support%20the%20health%20and,at%20any%20UC%20location%20to.
[2] See General Population Vaccination Coverage, Ctrs. For Disease Control and Prevention, https://www.cdc.gov/flu/fluvaxview/coverage-1920estimates.htm (last visited Dec. 3, 2020); Jacobsen v. Massachusetts, 197 U.S. 11 (1905).
[3] General Population Vaccination Coverage, supra note 2.
[4] See Tanya Albert Henry, How to Boost Vaccination Rates During the COVID-19 Pandemic, Am. Med. Ass’n (July 8, 2020), https://www.ama-assn.org/delivering-care/public-health/how-boost-vaccination-rates-during-covid-19-pandemic.
[5] Burden of Influenza, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/flu/about/burden/index.html#:~:text=While%20the%20impact%20of%20flu,61%2C000%20deaths%20annually%20since%202010 (last visited Dec. 3, 2020).
[6] See Will Stone, COVID-19 Hospitalizations Hit Record Highs. Where are Hospitals Reaching Capacity?, Nat’l Pub. Radio (Nov. 10, 2020, 6:03 AM), https://www.npr.org/sections/health-shots/2020/11/10/933253317/covid-19-hospitalizations-are-surging-where-are-hospitals-reaching-capacity; Henry, supra note 4.
[7] Dorit R. Reiss & Arthur L. Caplan, Considerations in Mandating a New Covid-19 Vaccine in the USA for Children and Adults, 7 J. L. & Biosciences 1, 4 (2020), https://academic.oup.com/jlb/article/7/1/lsaa025/5834620 (citing Nina R. Blank et al., Exempting Schoolchildren from Immunizations: States with Few Barriers Had Highest Rates of Nonmedical Exemptions, 32 Health Aff. 1282, 1289 (2013)).
[8] Juan Perez Jr., ‘Twindemic’ test: Massachusetts, Many Colleges Mandate Winter Flu Shots, Politico (Oct. 9, 2020, 4:54 PM), https://www.politico.com/news/2020/10/09/colleges-require-flu-shots-coronavirus-428407.
[9] Id. Flu Vaccine Now Required for All Massachusetts Students, USA Today (Aug. 20, 2020, 10:27 AM), https://www.usatoday.com/story/news/health/2020/08/20/massachusetts-requires-flu-shot-students-pre-school-college/5616005002/; Mandatory Flu Vaccinations, supra note 1.
[10] Maya Goldman, More Colleges Require Flu Shots of Students and Employees, Wall St. J. (Oct. 19, 2020, 10:02 AM), https://www.wsj.com/articles/more-colleges-require-flu-shots-of-students-and-employees-11603116161.
[11] 197 U.S. 11 (1905).
[12] Id. at 12–13, 35.
[13] See Zucht v. King, 260 U.S. 174, 177 (1922).
[14] Jacobsen, 197 U.S. at 35.
[15] See F.F. on behalf of Y.F. v. State of New York, 65 Misc.3d 616 (N.Y. 2019).
[16] Tyler Pager & Jeffery C. Mays, New York Declares Measles Emergency, Requiring Vaccinations in Parts of Brooklyn, N.Y. Times (Apr. 9, 2019), https://www.nytimes.com/2019/04/09/nyregion/measles-vaccination-williamsburg.html.
[17] Id. Francesca Paris, Judge Upholds Mandatory Measles Vaccinations as New York Closes More Schools, Nat’l Pub. Radio (Apr. 19, 2019, 1:38 AM), https://www.npr.org/2019/04/19/715016284/brooklyn-judge-upholds-mandatory-vaccinations-as-new-york-city-closes-more-schoo.
[18] Id. See also F.F. on behalf of Y.F., 65 Misc.3d at 634.
[19] Ctr. for Sys. Sci. and Eng’g, COVID-19 Dashboard, Johns Hopkins Univ., https://coronavirus.jhu.edu/map.html (last visited Dec. 4, 2020).
[20] See Jacobsen v. Massachusetts, 197 U.S. 11 (1905); Zucht v. King, 260 U.S. 174 (1922); Flu Vaccine Now Required for All Massachusetts Students, supra note 9.
[21] See, e.g., Meredith Deliso, Hundreds of Protesters Gather Against New Flu Vaccine Mandate in Massachusetts, ABC News (Aug. 30, 2020, 8:35 PM), https://abcnews.go.com/US/hundreds-protesters-gather-flu-vaccine-mandate-massachusetts/story?id=72717575.
[22] Perez Jr., supra note 8.
[23] See Flu Vaccine Safety, Ctrs. For Disease Control and Prevention, https://www.cdc.gov/flu/prevent/vaccinesafety.htm (last visited Dec. 3, 2020).
[24] See Helen Branswell, The Covid-19 Vaccines are a Marvel of Science. Here’s How We Can Make the Best Use of Them, STAT (Dec. 2, 2020), https://www.statnews.com/2020/12/02/how-society-can-make-the-most-of-covid-19-vaccines/; Chris Dall, Americans Increasingly Skeptical of COVID Vaccine, Poll Finds, Univ. of Minn. (Sept. 18, 2020), https://www.cidrap.umn.edu/news-perspective/2020/09/americans-increasingly-skeptical-covid-vaccine-poll-finds; Reiss & Caplan, supra note 7, at 4–5.
[25] Jan Hoffman, Mistrust of a Coronavirus Vaccine Could Imperil Widespread Immunity, N.Y. Times (July 18, 2020), https://www.nytimes.com/2020/07/18/health/coronavirus-anti-vaccine.html (last updated Sept. 1, 2020).
[26] See id. See also Perez Jr., supra note 8.
[27] Perez Jr., supra note 8.
[28] See Hoffman, supra note 25.
[29] See Branswell, supra note 24.
[30] See Perez Jr., supra note 8.
