The COVID-19 pandemic claimed the lives of more than 820,000 Americans from February 2020 to the end of December, 2021. As the virus and its mutations have spread, health care officials have recommended a series of steps, from social distancing to mask-wearing in enclosed spaces, as a means of arresting the spread of the disease. The available arsenal to combat the virus was expanded in late 2020 when three vaccines proven effective in limiting the spread of COVID-19 were approved for use in the United States for adults. In 2021, vaccines for youth as young as 5 have become available, and vaccine booster shots have been approved. The efficacy of the vaccines and boosters is well-demonstrated – according to data published in January of 2022 by the Centers for Disease Control, as of October 2021, unvaccinated people had 20 times the risk of dying from COVID-19, and had ten times the risk of testing positive for COVID-19, when compared to individuals who were vaccinated and had a booster shot. No comparable data is available to demonstrate the degree or duration of COVID-19 resistance by individuals who have contracted COVID-19 and recovered from it.
The period since the onset of the COVID pandemic has been marked by visceral, public opposition to public health measures aimed at checking transmission of the disease and reducing its lethality. Demonstrations, sometimes involving armed protesters, first sprang up across the nation to oppose lockdowns and temporary shuttering of public businesses. Next, requirements for masking were challenged. And as vaccination rates stalled among American adults, efforts to require vaccinations for employment, travel, school attendance, stores, restaurants, entertainment venues, and other locales has met with the same strenuous, bitter, and enraged opposition.
Many of those objecting to requirements for masks and vaccination have suggested that such measures violate civil liberties. They contend the measures violate personal “freedom” and “liberty,” and that government and private entities are placing an undue burden on bodily autonomy by requiring that someone be masked or vaccinated in order to be employed at or enter a particular venue. These assertions are not well-founded.
The ACLU of Illinois supports vaccine requirements or mandates in those instances where there is an effective vaccine for a deadly disease. Those conditions clearly are met in the instance of COVID-19.
In general, requirements for vaccines can be implemented without violating civil liberties. Vaccines have saved millions of lives and long have served as a critical tool for containing the spread of several severe diseases, including polio and measles. Leaving the decision about vaccination to individual choice can put the health and lives of others directly at risk of being infected with these deadly diseases.
Factors critical in determining the permissibility of a vaccination requirement include the effectiveness of the vaccine, the safety of the vaccine itself, the lethality and communicability of the disease targeted by the vaccine, and whether there are alternative measures available that effectively provide adequate protection to public health. COVID-19 is a highly communicable and frequently deadly disease, and the vaccines now available to prevent its transmission and reduce its symptomology have been proven extraordinarily effective while presenting extremely low risk of significant adverse side-effects.
The COVID-19 vaccines further are not just better than other protective measures, they are essential to ensure protection for the vulnerable to infection and serious illness or death due to COVID-19 – including, for example, people with disabilities, children too young to be vaccinated, people who cannot be vaccinated due to medical reasons, individuals who are incarcerated, and people of color who have been impacted by systemic discrimination in access to quality healthcare for decades.
Requirements for the groups of workers identified as “first responders” and other essential workers early in the pandemic also are appropriate. Recall that early in the pandemic the State appropriately recognized the crucial importance of healthcare professionals, firefighters, police, and others and prioritized those groups for access to masks and other essential safety equipment in severely short supply. Illinois recognized then that this prioritization was necessary to protect the health of those workers and of the people those workers served. Those same concerns apply equally now and provide more than adequate basis for vaccination requirements.
Requirements or mandates for vaccines likewise are justified in educational settings, including K-12 schools colleges and universities. Primary and secondary schools long have required proof of vaccination for measles, mumps and other childhood diseases. Again, the risk of these diseases spreading and harming – even being lethal – is significant both for students and for the faculty we depend upon to educate them.
Of course, the State continues to bear important responsibilities when imposing a vaccination requirement, even when the requirement is well-grounded. Any such requirement – or mandate – should be accompanied by universal access to no-cost doses of the vaccine. Limited exemption must be allowed for those who cannot safely be vaccinated due to medical reasons, as noted below. Vaccine access must be available to all parts of the population without obstacles posed by cost, immigration status, geography or other logistical difficulties faced by those experiencing poverty. Public health officials must move quickly to remedy any gaps that are revealed in this process.
Likewise, masking can play an important role in reducing the spread of COVID-19 and other airborne, communicable diseases. A mask requirement for indoor spaces to limit the spread of the disease, including for children in schools, can be done consistent with protection of civil liberties. Again, for those with pre-existing conditions who are unable to get a vaccine, masking by others is a critical protection.
Exemptions for a Vaccine Requirement
The ACLU of Illinois supports a medical exemption for any vaccine mandate, in the interest of public health. We oppose any broad religious exemption that risks broader public health.
Any requirement for vaccination should include an exemptions for those who are unable to take the vaccine for medical reasons. There are people for whom taking a vaccine would be medically contraindicated, such as those who have an allergy to one or more of the ingredients in a vaccine or have a specific type of immune disorder. Not allowing for these exemptions undermines the goal of protecting public health. When someone is provided a medical exemption, they should take one or more other precautions such as isolation, social distancing, masking, and/or regular testing, as appropriate.
Contrary to the assertion of many who object to vaccination requirements, religious exemptions generally are not required where, as here, the vaccine is safe, poses minimal risk of significant side-effects, and gives effective protection against a highly communicable and often deadly disease. If an employee expresses a sincere religious objection to taking such a vaccine, an employer does not need to provide a religious accommodation for the employee when doing so threatens the health and safety of others in the workplace (both employees and the public) by potentially exposing them to a lethal disease. This undue hardship to the larger employee group far exceeds the burden to an individual employee claiming a religious objection.
Government Bans on Vaccine or Mask Requirements
The ACLU of Illinois opposes state government imposing blanket bans on local communities imposing vaccine and mask requirements.
State policy makers should not prevent local schools, hospitals, congregate or long-term care facilities, or other businesses from requiring vaccinations, masks, or any other mitigation effort based on experts’ assessment of danger from COVID-19. Such bans place the public, and particularly individuals with compromised health, at serious risk of contracting this highly communicable and often deadly virus.
The ACLU of Illinois believes that where vaccines requirements are implemented, no one should be required to prove their vaccination status through a digital certificate or electronic “passport.”
Digitizing this process further exacerbates inequality for some low-income people who do not have smartphones. And, unless carefully designed to incorporate important privacy protections, a digital vaccine proof strategy is likely to be invasive of privacy. A paper-based system – or alternative – is necessary.