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You do not have the 'constitutional right' to refuse the Covid-19 vaccine

Opinion by Marci Hamilton and Paul Offit

Updated 2:32 PM ET, Wed August 25, 2021

Marci Hamilton is a professor at the University of Pennsylvania and CEO of CHILD USA, a nonprofit think tank working to end child abuse and neglect in the US. Dr. Paul Offit is director of the Vaccine Education Center and professor of pediatrics in the Division of Infectious Diseases at Children's Hospital of Philadelphia and the Maurice R. Hilleman Professor of Vaccinology at the Perelman School of Medicine at the University of Pennsylvania. The opinions expressed in this commentary are their own. View more opinion on CNN.

(CNN)Now that the US Food and Drug Administration has approved the Pfizer/ BioNTech Covid-19 vaccine for people age 16 and older, it's time for all governments across the country to mandate the vaccine for people taking part in indoor activities. There are no more valid excuses for not being vaccinated other than health reasons.

One frequently heard pushback against vaccine mandates is that there is a "constitutional right" to choose whether to be vaccinated or not for adults and a right to determine whether children can be vaccinated. That is a non-starter in the midst of a pandemic.

The Constitution is not a suicide pact guaranteeing a right to harm others. The government has latitude to protect citizens from deadly conditions, especially when the science supporting vaccination is so clear.

The bioethicist, professor Arthur Caplan of New York University, has made a compelling case for the moral mandate to require vaccination. Appearing with New York City Mayor Bill de Blasio in a news briefing last month to address the city mandating vaccines for all municipal workers, he argued that the new policy "makes good, ethical and public health sense" and that "it will help all of us by keeping the COVID outbreak controlled."

We agree, but also believe that the public needs to better understand that there is no constitutional right to avoid vaccine mandates against a deadly disease.

With respect to children, parents do not have carte blanche. At one time, children were the property of their fathers, but that is no longer the case. Children are "persons" under the Constitution, and as the ruling in Prince v. Massachusetts held, parents do not have a constitutional right to make martyrs of their children. Parents have an obligation to protect their children's health and life, which means that the school district mandates that reduce the risk of death to children should be enforceable, period.

Now there's no excuse for not requiring vaccinations

Those challenging the government mandates are likely to invoke their rights under the First, Fifth, and Fourteenth Amendments, which protect speech, religion, and a right not to "be deprived of life, liberty, or property, without due process of law." Their view ends up as a snapshot of themselves; nonetheless, rights can be limited if a person is endangering another.

It's a sentiment that came up in the 1905 Supreme Court decision in the case Jacobson v. Massachusetts. The court ruled against a man who had refused to be vaccinated against smallpox, stating: "Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own (liberty), whether in respect of his person or his property, regardless of the injury that may be done to others." That same principle was apparent when Justice Amy Coney Barrett, who is thought to be a strong rights-advocate, left standing Indiana University's vaccine mandate.

The government may prohibit otherwise constitutionally protected conduct to save the lives of others.

For example, it is well-settled that governments can ban yelling "Fire" in a crowded theater, because such speech can lead to death as attendees race to the exits. True, the First Amendment's Speech Clause protects the "freedom of speech," but there is no requirement that the government can't prevent scenarios likely leading to death.

The same reasoning applies to vaccine mandates. The Supreme Court explicitly upheld vaccine mandates against deadly diseases in Jacobson, where it explained: "the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand." We live in a country of ordered liberty, not individual autonomy that paves the way to the deaths of others. In short, it is not the right of every American citizen to catch and transmit a potentially fatal infection.

We would posit, further, that governments that don't mandate vaccination against Covid-19 are skating very close to violating the standard for a constitutional right to "life" without due process. If a government does not take reasonable action to prevent the likely deaths of so many people, there will be more lawsuits. Already, we've seen schools filing lawsuits against former Trump administration officials and individuals suing the World Health Organization contending that they mishandled the Covid-19 response.

The depth of the science and the worldwide experience show plainly that vaccination is the best protection from this pandemic, and that the faster we reach herd immunity the more likely it will be that people won't die from this virus, hospitals won't be overburdened, and the economy will fully recover.

It is reckless at this point for the government not to mandate vaccination. Some politicians have falsely told Americans that they have a constitutional right to refuse vaccination. This is a license to potentially infect others with a deadly disease when the Supreme Court has consistently held otherwise.

Children and adults have a constitutional right to "life" that can only be protected if there is mass vaccination. It's time for state and local governments to issue vaccine mandates and fines -- as New York and San Francisco have -- before this virus mutates into an even more elusive killer than it already is.