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Private companies and public entities are increasingly turning to vaccine “mandates” as a weapon in the fight against the spread of COVID-19, especially as the Delta variant makes inroads. Daniel Medwed, GBH News legal analyst and Northeastern law professor joined Aaron Schachter on Morning Edition to discuss whether these vaccine mandates are likely to withstand the inevitable flurry of courtroom challenges.

Schachter: The term “vaccine mandate” seems to cover a bunch of concepts, including making vaccination a condition of employment. There is also the phrase vaccine “passports,” which would make vaccination necessary to access certain services. In general, what legal arguments support these restrictions?

Medwed: There seem to be two primary arguments. First, that states have the right to regulate during public health crises, for instance, by imposing mask requirements or travel quarantines, and vaccine mandates are just an outgrowth of that principle. Second, that private companies have an interest in protecting the health of patrons and employees, and deserve some deference on how to do it.

There’s a tradition of similar restrictions, for instance, you need proof of vaccination for your children to attend many schools, and private businesses often limit access to services — you usually have to wear shoes to eat in a restaurant. I think these measures will probably hold up in court as long as they don’t infringe on constitutionally protected interests, like requiring vaccination to vote, or go to church, and have reasonable exemptions for people who can’t be vaccinated because of personal health risks or hold sincere religious beliefs against them.

Schachter: What about the arguments against these mandates?

Medwed: The arguments against revolve around individual freedom, including the right to privacy, the idea that citizens shouldn’t be compelled to do something that might interfere with what they view as a personal health decision. One major complication, of course, is that the vaccines are currently being distributed under an Emergency Use Authorization (EUA), and that adds ammunition to the argument against them. Vaccine mandates will stand on an even stronger legal footing when the vaccines receive the full green light from the FDA.