Vaccines, mandates, and backlash: The long US history

The national leader decided he had no other choice. A fast-spreading malady threatened to shake America to its core. So he mandated widespread vaccination against it, though the process was relatively new, and he knew many might oppose his order.

2021? No, 1777, when Gen. George Washington ordered members of the Continental Army inoculated against smallpox. The drastic action was necessary, General Washington wrote president of Congress John Hancock, and would not delay recruits entering service, as they already had to wait while “their cloathing Arms and accoutrements are getting ready.”

The United States has a history of mandating vaccinations. It also has a history of resisting them. President Joe Biden’s sweeping new federal vaccine requirements for COVID-19, and the opposition they have sparked, are hardly unprecedented developments in U.S. life.

If there’s a lesson to be learned from past efforts, it may be this: Such mandates generally aren’t a switch that creates instant change, once flipped. Personal values, fears, and political polarization all affect implementation. Follow-up is common. That may be especially true for President Biden’s orders, which could potentially affect 100 million people and have sparked widespread resistance in Republican-led states.

“These mandates are really just one piece of a larger puzzle of policy responses,” says Christopher Robertson, a specialist in health law and professor at Boston University School of Law.

Late 1800s vs. today

George Washington in some ways had many fewer variables in regard to vaccinations. He was a military commander who could order his soldiers to do things, and he was dealing with a relatively limited number of troops.

President Biden may instead face a situation more like the late 1800s, when U.S. opposition to vaccine mandates began to snowball. Some states, particularly in the West, banned such mandates. Others barely allowed them. Reasons for the backlash would sound familiar today: protection of personal liberty, suspicion that health care profits were the real goal, and concerns about vaccine side effects. 

Mr. Biden’s expansive rules would mandate that all private employers with more than 100 workers require them to be vaccinated, or to test for the virus weekly. That would cover an estimated 80 million Americans.

Workers at health care facilities that receive Medicare or Medicaid funds would have to be vaccinated, covering a further 17 million people.

All federal workers and contractors must be vaccinated, with limited exceptions. 

The primary target of these orders may be people who aren’t entirely averse to being vaccinated, but haven’t done it yet. They can’t get time off, or don’t know where to go, or just haven’t bothered.

“A lot of people have just not gotten around to doing it. ... This will fully capture them,” said Dr. Georges Benjamin, executive director of the American Public Health Association, in a C-SPAN interview on Sept. 13.

It’s not clear how many people that might be. Polls show that around 73% of the eligible population has received at least one dose of a COVID-19 vaccine. According to a CNN survey released Monday, but taken prior to Mr. Biden’s announcement, 5% of respondents said they had not received even one shot yet, but would still try to get vaccinated.

Some 22% said they had no plans to try to get a vaccine. The administration is undoubtedly hoping that the prospect of losing their jobs might make some of these people change their minds.

OSHA’s new role

It’s going to be a challenge for the bureaucracy to get Mr. Biden’s vaccine orders up and running anytime soon.

In part that’s because a U.S. president doesn’t have the authority to just order the general population to get shots.

States and local governments do have that power, based on their inherent constitutional authority to police their citizens. In 1902, the Board of Health of Cambridge, Massachusetts, ordered that all citizens had to be vaccinated against smallpox. A local pastor refused to comply, on grounds that as a child he’d had a botched immunization. He argued that the law infringed on his personal liberty, and was “unreasonable, arbitrary, and oppressive.”

In 1905, the Supreme Court ruled against the pastor, saying that “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint.” 

Subsequent court decisions have affirmed this, allowing states and localities to issue vaccine mandates for schools and universities.

President Biden’s orders last week instead involve a workaround. The administration is invoking the ability of the Occupational Safety and Health Administration to set workplace standards to order private employers to test regularly or require vaccination. OSHA must produce a preliminary rule on the issue, which will take several weeks. Then the rule will be implemented as quickly as possible.

“There is a provision in the law that allows it to operate on an emergency basis to issue something for six months when there is a grave danger,” says Debbie Berkowitz, a senior OSHA official in the Obama administration.

Tough details have yet to be settled. Who will pay for testing, if employees opt for that route? Will employees get time off for those weekly tests or to go be vaccinated? Will they get paid leave to recover from any vaccine side effects? If so, how much? What will constitute proof of vaccination? What’s the standard for religious and health exemptions?

Will companies comply? Administration officials say fines for flouting the rule will be high – upwards of $13,000 per incident. But OSHA isn’t a police force. Ms. Berkowitz says it would “take 160 years” for OSHA staff to visit every firm under its jurisdiction just once.

But generally speaking, once they know a rule is coming, employers just start complying with its intent, she says, especially in large workplaces.

And employers may benefit from standardized rules governing workplace vaccination status. Since the pandemic began OSHA has received many complaints about inconsistent mask use and other perceived problems related to COVID-19. To this point it has not had authority to step in. Companies can now point to the federal government as the entity to blame for crackdowns.

The mandates could also affect employment numbers.

“We have a lot of evidence that some of the continued labor market sluggishness is due to people kind of fearing going back to work,” says Matthew Johnson, an assistant professor in the Sanford School of Public Policy at Duke University.

Public safety vs. personal liberty

Early polls indicate that President Biden’s vaccine-or-test mandate for private employers is largely popular. A recent Morning Consult/Politico poll found 58% approval for the policy. Other main aspects of the Biden plan had similar support.

But attitudes about almost everything to do with COVID-19 response in America are split sharply along partisan lines. Across the country many Republican officials have reacted with seething anger about a mandate they feel strikes at citizens’ personal liberty.

“The vaccine itself is life-saving, but this unconstitutional move is terrifying,” tweeted GOP Gov. Tate Reeves of Mississippi following President Biden’s mandate announcement last week.

As Governor Reeves’ tweet shows, much of the Republican opposition walks a narrow space between two beliefs: the vaccine is good, but the federal government making you take it is bad.

Sen. John Kennedy, a Louisiana Republican, framed it in terms of striking the balance between personal freedom and public safety.

“We could save a lot of lives by lowering the speed limit to 45 [mph] on all of our roads. And if a state wants to do that, or a state legislature wants to do that, that’s their business,” he told a few reporters while on the way to a vote. “But if the president unilaterally decided to do it, I think that would be inappropriate.”

Like many Republican states, Louisiana has seen a significantly lower rate of vaccinations than coastal liberal states. But that rate was starting to go up, albeit gradually. Now, Senator Kennedy says he’s worried the president’s move will thwart that progress.

“I believe in the vaccine, I think the vaccine works, I wish everybody would take it, but I think this move by the president is going to be counterproductive. ... We’re going to end up spending the time in court, and the resources in court, that we could be spending trying to convince our fellow Americans to take the vaccine,” he said. 

Staff writers Dwight Weingarten and Christa Case Bryant contributed to this report.