By Dorit Rubinstein Reiss and Y. Tony Yang
A future COVID-19 vaccine will not work without sufficient uptake, and some are considering mandates to get that uptake. Some scholars have gone so far as to call for compulsory vaccination for all U.S. residents in a recent USA Today column.
We believe premature mandates won’t work. In fact, they could backfire spectacularly.
There are several reasons for this. First, once we have an approved vaccine, we will not have enough doses to go around for those who want them. Forget mandates: even if all goes remarkably well, we will begin by producing and distributing tens of millions of doses—not the hundreds of millions needed to cover the entire United States.
Given our limited capacity to produce the vaccine at first, the more urgent question now is who we prioritize in giving the new vaccine—which is being discussed by both individual scholars and special committees at the National Academies of Science, Engineering, and Medicine and the Centers for Disease Control and Prevention. Simply put, we cannot mandate a vaccine until it is broadly accessible, and by that time the pandemic may actually be controlled to a degree that a mandate will not be needed.
Second, a universal mandate may make the problems facing broad acceptance of COVID-19 vaccines even worse than they are now. A recent Gallup poll shows that more than a third of Americans would refuse a free, FDA-approved vaccine if it was ready today. Mistrust is, of course, a grave threat to COVID-19 vaccine acceptance. While this is fueled in part by misinformation from the usual anti-vaccine suspects, there is also deep concern and skepticism about the unusually accelerated timetable of the U.S. government’s “Operation Warp Speed” and the current Administration’s political considerations before the November elections.
We have already seen masks and social distancing politicized, and strong resistance to mandates. The reality is that most broadly applicable mandates, unless accompanied by self-enforcement mechanisms, need some buy-in and compliance to work well. A universal vaccine mandate in the face of widespread mistrust would raise real enforcement problems.
Moreover, going to mandates without transparent efforts to educate the public is a shortcut to suppressing vaccine safety concerns, and will breed even stronger resistance. Rather than immediately reaching for mandates, the first response to concerns should be to increase transparency as much as possible. We should be public and vocal about the ways the existing oversight process is conducted and monitored.
For example, most people don’t know that there has been, for months, a National Institutes of Health committee overseeing the vaccine process and receiving updates from Food and Drug Administration officials. Most don’t know that there’s a working group of more than 40 experts convened at the CDC and led by an independent expert to monitor COVID-19 vaccines, and that this group presents its work through open meetings available online. When clinical trial data comes out, it should also be made transparently available. We may end up needing some mandates for vaccines; but we may not, and we should start with less compulsory measures.
Finally, there are legal barriers. A universal vaccine mandate for adults has never been imposed in the United States, and a COVID-19 vaccine mandate would almost certainly be challenged in court. Plus, it is doubtful that the federal government has the authority to impose one. (And it is not clear states do, either.) Not least, the litigation would provide anti-vaccine groups with an additional forum in which to query vaccine safety, as well as its legality.
Although mandate supporters would draw on the 1905 Supreme Court case of Jacobson v. Massachusetts, which upheld a local vaccine mandate in Cambridge with conditions, it is not clear that case would support a broad law mandating compulsory vaccination nationwide—especially if lesser measures were not tried first. A tailored mandate—one for healthcare workers or essential workers—would be better justified and more likely to be upheld than a universal one.
Universal mandates should not, at this point, be on the table. Putting them there now will do more harm than good.
Dr. Dorit Rubinstein Reiss is a professor at the University of California Hastings College of the Law.
Dr. Y. Tony Yang is a professor and the executive director of the Center for Health Policy and Media Engagement at the George Washington University School of Nursing, and the Department of Health Policy and Management, George Washington University Milken Institute School of Public Health.