Why Compelled Vaccine for Contagious, Deadly Diseases Is Constitutional

I was recently interviewed about current events when the subject suddenly turned to vaccination. I expressed a view I have held for half a century, namely, that it's constitutional for the government to compel citizens to be vaccinated against highly contagious deadly diseases.

I did not think that was acontroversial statement. Nor did I think it was controversial to say that I personally would be vaccinated if a safe vaccine were developed against COVID-19.

I grew up during the polio epidemic; our heroes were Jonas Salk and Albert Sabin, who developed the first vaccines that virtually eradicated the scourge of polio — a highly contagious illness killing a close friend of mine in elementary school.

Nor am I alone in arguing that vaccination under such circumstances is constitutional.

During the first decade of the 20th century, the U.S. Supreme Court upheld mandatory vaccination against small pox, a disease that had decimated the world for many years.

I believe that the current Supreme Court — divided as it is in so many issues — would uphold a reasonable mandatory vaccination law.

I was shocked, therefore, by the reaction to what I believe was a non-controversial statement.

My emails included threats — both secular and religious — as well as anti-Semitic attacks.

They also included some thoughtful criticism regarding my views and some material about the alleged dangers of some vaccines.

Bobby Kennedy called and wrote me with some interesting information and offered to debate me on the issue — which I accepted. Let me be clear what my views are as a lifelong civil libertarian who is critical of excessive government powers.

The government has no legitimate authority to compel a competent adult to accept medical treatment that benefits only him or her. For example, if a vaccine against cancer or heart disease were to be developed, we could each decide for ourselves whether to take it.

I believe there is a right to die as well as to live.

But if a vaccine is developed, tested and designed to prevent the spread of COVID-19, smallpox, Ebola, polio or other highly contagious deadly disease, and it is deemed safe by the authorized experts, the government has the power to compel you to take it — not for your own good but for the good of those who might otherwise catch it from you and die.

That has been my view for more than half a century.

I put it this way many years ago in the context of cigarette smoking, "You have a right to inhale anywhere; but you have no right to exhale near me."

This is a variation of the traditional civil liberties mantra that "The right to swing your fist ends at the tip of my nose." Similarly, your "right" to have COVID-19 destroy your own lungs ends at the area around my nose, eyes and mouth.

This means that the government can reasonably compel the wearing of masks, the requirement of social distancing and the prevention of large gatherings.

It can also compel vaccination to prevent you from transmitting a fatal disease to me.

Theoretically, you should have the option of opting out of the vaccine if you agree not to endanger me by remaining effectively quarantined during the duration of the pandemic.

But this would be difficult to enforce.

It's also in the public good for everyone to be vaccinated in order to achieve maximum herd immunity. In order to compel any potentially dangerous medical intrusion for the public good, the government should be required to assure maximum safety consistent with the imminent need for protection.

There can never be an absolute guarantee of complete safety for any medical procedure, even an injection or pill.

All that is constitutionally required in a democracy is a process for implementing the best judgment of highly qualified and objective experts and an ability to challenge legislation in the courts.

That is true of all governmental actions that entail risks, ranging from military actions to fluoridating the water supply. There will always be dissenters, and their right to oppose mandatory vaccinations and other governmental intrusions must be protected.

The debates — medical, scientific, legal, moral, political — should go on.

Those debates are essential to the health of any democracy.

But, in the meantime, the government should act to protect us all from pandemics that endanger our lives. I hope, therefore, that scientists globally continue their important work toward developing an effective and safe vaccine to combat the current pandemic.

That is the essential first step.

Then comes the testing.

But it's important to begin the discussion now about how to deal with those who will refuse to accept any vaccine, regardless of how safe and effective it may be.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of "Guilt by Accusation" and "The Case Against the Democratic House Impeaching Trump." Read Alan Dershowtiz's Reports — More Here.

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