THE SURGE in covid-19 infections, along with stagnant vaccination rates, has prompted something else to spread across America: vaccine mandates. For months America had seemed to be moving in the opposite direction. Several states, including some where covid-19 cases are soaring, banned vaccination requirements in the spring.
But as the Delta variant spread in late July, California and New York City required public employees to be vaccinated or else submit to regular testing. Days later New York’s mayor said that, as of August 16th, customers and workers at restaurants, bars and gyms will have to present proof of vaccination. The governor of Virginia is requiring state employees to get the vaccine or be tested weekly. President Joe Biden announced a similar mandate for federal employees on July 29th, leaving room for them to resort to a mix of testing, masking and social distancing. But the Department of Veterans Affairs (VA), a federal agency, is insisting that its medical employees have the jab, and the armed services are considering doing the same. America is not alone. France, Italy, Hong Kong and others have implemented their own mandates for work and social activities.
Private employers are also taking a stand. All of the top 25 public and private universities, as ranked by US News and World Report, are requiring inoculation for students. Walmart, the country’s largest employer, with nearly 1.6m workers, announced that vaccination would be obligatory for corporate employees and regional managers. Disney, Uber, Lyft, Google, Tyson Foods, the National Football League and others announced similar requirements. CNN, a news organisation, fired three workers who came to the office without the jab.
Vaccination mandates—compulsory inoculation for employment or participation in certain activities—are nothing new in America. The army has required inoculation for several diseases for more than 200 years. Most health-care institutions also require employees to be vaccinated. Children face mandates, too. All 50 states require children to be vaccinated against childhood illnesses like measles and mumps, and about 95% of pupils have had the required jabs, according to the Centres for Disease Control and Prevention. Most states allow exemptions for religious and personal beliefs, but not all. California revoked personal and religious exemptions in 2019. New York quickly followed after measles raced through its Orthodox Jewish community.
The law gives states and employers wide discretion to require vaccines, says Walter Olson, a lawyer at the Cato Institute, a libertarian think-tank, though he expects a Supreme Court challenge to reinstate the religious exemption prohibited by some states. Many of the covid-19 mandates do include exceptions. Those in California, Virginia and New York City allow regular testing as an alternative. But employers can require the unvaccinated to foot the bill, says Mr Olson. And the tests can be expensive. Some cost more than $400, with no guarantee that insurance will cover any of it, according to an analysis by the Kaiser Family Foundation.
The first legal challenge to a vaccination mandate failed. On August 2nd the Seventh Circuit Court of Appeals declined to block Indiana University’s requirement that students get jabbed before returning to campus in the autumn. The three-judge panel—comprising one appointed by Ronald Reagan and two by Donald Trump—dispatched the unvaccinated students’ complaint in four crisp pages. The court relied on a Supreme Court decision from 1905 upholding a requirement that adults be vaccinated against smallpox. Since the university allowed religious and medical exceptions, the court reasoned, and since people “may go elsewhere” for their education, the students had no constitutional claim.
On August 6th the Indiana University students filed an emergency application to block the mandate with Justice Amy Coney Barrett, who handles such requests from the Seventh Circuit. Justice Barrett could tackle the matter herself or refer it to the full Supreme Court for resolution in the coming week. Given the novel and weak legal claims underlying the students’ plea, it seems unlikely the court will grant this request. Meanwhile, college students are also challenging mandates in Connecticut, Colorado and Massachusetts. Prospects for success in those suits are dim, too.
A pending civil suit from a law professor raises somewhat different questions. Todd Zywicki claims that George Mason University is violating his “bodily autonomy” by requiring unvaccinated employees to test, mask and remain several feet away from other people. Mr Zywicki, who contracted and recovered from covid-19, says he has natural immunity and his employer has “no legitimate rationale” for imposing these “unconstitutional conditions” on his employment.
Although most vaccine mandates are probably legal, some might be politically unwise, warns Mr Olson. Scholars point to behavioural experiments showing that incentives for vaccination, whether rewards or punishments, do not work. Researchers from Stanford University studied Ohio’s vaccination lottery, which offers prizes of $1m cheques and college scholarships, and found that it and other similar state lotteries had no impact on vaccination rates. Some research suggests that punitive policies, such as vaccine mandates, also have little positive impact. Only one in ten American vaccine holdouts said they would get the jab based on a work or travel mandate, according to a survey by The Economist and YouGov. Dissenters warn of a potential backlash. Among Germans, support for a hypothetical vaccine mandate dropped by 16 percentage points from 44% between spring and autumn 2020.
And vaccination mandates may not be worth the pushback. Over 300,000 VA workers, at least 70% of the total, are already vaccinated. The same percentage of the armed forces has received at least one jab, and 75% of eligible Californians were inoculated at the time of the announcement. Even so, mandates could have an impact where vaccination rates are low. Some facilities within the VA, for example, have vaccination rates as low as 59%. And many local governments announced policies for city employees in response to state mandates. After California’s announcement, Los Angeles declared its own requirement: its police department has a vaccination rate of only 47%.
Leana Wen, a former health commissioner for Baltimore, thinks that vaccine mandates are necessary. “We will never set any policies at all” if we worry about blowback, she says. Rather than some new phenomenon, resistance to public-health requirements is an old political reflex America has overcome before. Dr Wen points to the initial unpopularity of indoor-smoking bans and the recent backlash against childhood immunisations. “At a certain point a society has to decide, what is it that they stand for?”
New York City’s mayor, Bill de Blasio, claims his requirement covering restaurants and gyms has already succeeded, even though it has yet to go into effect. The city has reported an increase in vaccination rates. It administered 80,000 first doses during the first week of August, a 41% increase compared with the first week of July. The mayor attributes the gains to the city’s $100 incentive system (which began on July 30th) as well as the mandate.
These sorts of requirements are spreading beyond America. France is requiring that people who want to enter restaurants or travel on trains carry a pass demonstrating proof of vaccination or of a recent negative test, or else that they had covid-19 and recovered. This mandate has sparked protests, but French citizens mostly approve. Health-care workers also must get the jab by September 15th. Galicia, a region of Spain, is requiring inoculation to enter hotels, and Romania is considering a similar rule for shopping malls on weekends. Hong Kong announced on August 2nd that civil servants must get the jab or pay for weekly testing. Four days later, Italy rolled out the Green Pass. Required for entrance to a variety of venues, it shows proof of vaccination, positive antibody test or recent negative covid result. In England the prime minister, Boris Johnson, has announced plans to require proof of vaccination from the end of September for night-club goers.
Although vaccination mandates appear to be gaining momentum in America, they could eventually prove unnecessary. The country administered its highest number of covid-19 vaccinations in a month on August 4th — 864,000 doses. Vaccination rates have been increasing in the hardest-hit regions, including some of those least likely, for reasons of politics, ever to embrace mandates. Louisiana had 693 new covid-19 cases per 100,000 residents over the past week; only about 37% of eligible people there are fully vaccinated. But on August 3rd Louisiana reported the highest number of administered vaccine doses (19,372) since April 30th. Florida, with 49% of eligible people fully vaccinated, had 627 new covid-19 cases per 100,000 residents over the past week. The Sunshine State also reached a vaccination peak on July 30th: 76,050 doses were administered, the most since June 11th. Other hard-hit states are seeing similar results. Perhaps this wave of covid-19 infections will do the work needed to encourage vaccination, before mandates take hold.