Harvard Law School emeritus professor Alan Dershowitz claimed in an interview that the government has a constitutional right under the 10th Amendment to forcibly vaccinate a citizen to curb the spread of a contagious disease.
"Let me put it very clearly, you have no constitutional right to endanger the public and spread the disease, even if you disagree. You have no right not to be vaccinated, you have no right not to wear a mask, you have no right to open up your business," he said.
The interviewer, Jason Goodman, interjected, asking if the famed constitutional scholar was saying that if the government decides "you have to be vaccinated, we have to be vaccinated."
"Absolutely," Dershowitz replied. "And if you refuse to be vaccinated, the state has the power to literally take you to a doctor's office and plunge a needle into your arm."
"Where is that in the Constitution?" Goodman asked on his web show, "Crowdsource the Truth," which was posted Sunday on YouTube.
Dershowitz clarified that if a person is threatened with a deadly disease that is not contagious, he can refuse treatment.
"But you have no right to refuse to be vaccinated against a contagious disease," he said.
"Public health, the police power of the Constitution gives the state the power to compel that," Dershowitz said. "And there are cases in the United States Supreme Court."
Dershowitz added that there are "cases after cases after cases" in which courts have ruled in favor of "reasonable actions to prevent the spread of communicable diseases."
The Harvard professor – who defended President Trump in his Senate impeachment trial – was referring to the state police power doctrine derived in part from the 10th Amendment.
The Supreme Court has recognized each state's "police power" – defining "police" as polity or government rather than law enforcement specifically – which gives the state authority to enact health laws, including quarantine and vaccination requirements, to protect public health.
The argument against forcible vaccination is based on the 14th Amendment's provision that no state "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law."
But Dershowitz points to the Supreme Court's Jacobson v. Massachusetts decision in 1905, which concluded a state may require vaccination if the board of health deems it necessary for public health or safety.
The court found the police power of a state included reasonable regulations established by the legislature to protect public health and safety.
The regulations didn't violate the 14th Amendment right to liberty, the court said, because they fell within the restraints to which everyone is subject for the common good.
If any individual is allowed to act without regard to the welfare of others, true liberty does not exist, the court argued.
More than a century later, the Jacobson decision "has not been revisited in any meaningful way," noted the AMA Journal of Ethics in 2006.
It has stood all this time, not allowing "a single individual to refuse vaccination while he or she remains within the general population on the grounds that to make such an exception would strip the legislative branch of its function to care for the public health and safety when threatened by epidemic disease," wrote Sarah Fujiwara, MD, then a student at DePaul University College of Law and an intern at the American Medical Association.
"This ruling prevails despite occasional injurious results from vaccinations and the impossibility of determining whether a particular person can be safely vaccinated," she wrote.
"The only exception to a mandatory vaccination is an offer of apparent or reasonably certain proof to the state’s board of health that the vaccination would seriously impair health or probably cause death."
