It has been over a year since COVID-19 first reached the United States, in that time the virus has cost the country over 500,000 American lives and millions of jobs. America’s current goal is to vaccinate as many people possible as public health officials have adamantly urged that widespread vaccination could help bring an end to this deadly pandemic. However, vaccinating America is a massive undertaking. At the time of this writing, the United States has delivered over 75 million doses of COVID-19 Vaccines, of which roughly 84% have been administered. These numbers fall well short of what is needed for the over 300 million individuals populating the country. President Biden has made clear that there is nothing more important right now than getting the resources needed to vaccinate Americans as quickly as possible. He acknowledges the fact that at the moment vaccine doses are limited, but he believes and has stated that the country is on track to have enough vaccinations for 300 million Americans by the end of July.

As of now, electing to receive the vaccine is ultimately a matter of personal choice. However, things could change in the coming months. Compulsory vaccine laws for other vaccine-preventable diseases exist, and the judiciary has consistently upheld such vaccination mandates for more than a century. Here is what you need to know.

State enforced mandatory COVID-19 vaccination laws are unlikely in the immediate future. The major thrust behind this prediction is that there plainly are not enough vaccine doses available at the moment. The President’s Chief Medical Advisor has acknowledged that a major issue currently facing the country is the fact that demand for the vaccine still far outweighs the available supply. Vaccine mandates are fitting when enough doses exist to accommodate the population, however, when there are more people who want the vaccine than doses available (as is the case here in the United States) such a mandate is simply less warranted. If a state were to enact and enforce a compulsory vaccination law, they would surely need to make sure that individuals would be able to comply with the law.

Mandating COVID vaccines may, at the moment, seem unlikely due to the mere fact the doses of the vaccine(s) available in the United States fall well short of what is needed. However, the question looms: Can the government make you take a vaccine? The short answer is yes, the government can likely make you get vaccinated. However, it is unlikely that we would see a broad national mandate, the limited case law on the issue points toward its constitutionality and tells us that such vaccine mandates are likely to be enacted and enforced by way of the state.

It is well established that state governments have the general authority, within constitutional limits of course, to enact laws that provide for the public health and safety of the citizens of their state. The power for States to mandate vaccination dates back to 1905. The principal authority allowing for compulsory vaccination laws is found in the Supreme Court decision of Jacobson v. Massachusetts, which affirmed the authority of the State of Massachusetts to enforce compulsory vaccination laws. Jacobson v. Massachusetts, 197 U.S. 11 (1905). In Jacobson, the court made clear that “liberty may at times, under the pressure of great dangers, be subjected to such restraint […] by reasonable regulations, as the safety of the general public may demand.” Id. at 29. The Supreme Court in Jacobson determined that compulsory vaccination laws enforced in a reasonable manner do not violate the Constitution.

The Supreme Court’s decision in the Jacobson case expressed the notion that individual liberty is not an absolute and that it may, at times, be subject to reasonable constitutional infringement by way of the police powers of a state. However, States likely cannot just say everyone needs to get this vaccine without exception. A vaccination mandate that requires everyone be vaccinated without exception would be unprecedented and likely deemed unconstitutional. In Jacobson, the seminal case on the issue, the court was heavily influenced by the fact that local institutional bodies, in light of provided for exceptions, determined when mandatory vaccinations were appropriate. The Jacobson case hinged on the fact that the State allowed for reasonable exceptions for health reasons, this made the requirement neither unreasonable nor arbitrarily imposed. As such, a blanket vaccination requirement would likely be found unconstitutional upon judicial review.

A compulsory COVID vaccination law is not out of the question. It would likely be found reasonable for States to mandate vaccination of their residence once COVID vaccines are more readily available. If a compulsory COVID vaccination law were to be enacted and enforced, it would very likely face a challenge ending in a word from the Supreme Court. As the situation stands, State authority to require mandatory vaccination exists, however, they would need to do so reasonably and in the least restrictive means available. This would likely provide for medical exceptions as was seen and provided for in the Jacobson case over 100 years ago.