In 1905, the US Supreme Court held in Jacobson v. Massachusetts that vaccination can be made compulsory by government agencies in the face of public health crises. “To invest such a body [as a board of health] with authority over such matters [vaccination] was not an unusual, nor an unreasonable or arbitrary, requirement,” Justice Harlan opined. “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. (25 S.Ct. 358, 362)” Citators across platforms show less-than-positive treatment on this 116 year-old case, almost all of which stems from lower court decisions in the past calendar year.

In our era of Covid-19, US government bodies have not made vaccination mandatory. It is estimated that at least 80% of any community population will have to vaccinated against Covid-19, but the required percentage may be higher. So far, the US state with the greatest percentage of its population to be vaccinated is New Mexico, which has fully vaccinated 26.3% of its population, and administered at least one dose to 41.2%. In contrast, fewer than 29% of Texans have received a single dose.

In the absence of compulsory vaccination, some employers have decided to ensure herd immunity among their employees by requiring a vaccination to work. In December, the federal Equal Employment Opportunity Commission issued guidance that employers are able to require employee vaccination, so long as reasonable accommodations are provided if possible where the Americans with Disabilities Act applies.

Tech entrepreneurs have already been working for months to create an app for what is seen as the inevitable need for a quick way to prove vaccination status with a basic smart phone. In fact, designed in a pre-Covid world as a tool for haggard parents, at least one app (MyIR) already exists to handily, in real time, show a user’s vaccination history on record with their home state. Critics worry about privacy concerns, but proponents point to the long-established vaccination databases that exist in most states.

Some entities that provide in-person services have decided to protect employees by further requiring guests or customers to be vaccinated. For example, Royal Caribbean is requiring all cruise-goers over 18 to provide proof of vaccination before boarding the ship. Phone apps developed by private companies may be one way business owners will allow proof of vaccination.

If one or two apps come to dominate the space, then this standardized credential accepted by businesses would be a sort of a pass allowing entry to certain places. Therefore, this thus-far mostly theoretical standardized credential has been dubbed a “vaccine passport.”

For its part, the federal government says it will not create a vaccine passport. This past Tuesday, the White House Press Secretary explained: “The government is not now nor will we be supporting a system that requires Americans to carry a credential. There will be no federal vaccinations database and no federal mandate requiring everyone to obtain a single vaccination credential.” Closer to home, Texas Governor Abbott has forbidden recipients of state funds to require any proof of vaccination status.

Meanwhile, the World Health Organization has so far declined to back Covid-19 “vaccine passports.” The WHO already oversees the widely used “Yellow Card,” or International Certificate of Vaccination or Prophylaxis. This document, which has been widely used around the world since 1933, certifies vaccine status against various maladies of global concern, currently including cholera and yellow fever. The WHO says Covid-19 will not be added to the Yellow Card until the vaccine becomes widely available in all countries, and more data is available to demonstrate that the vaccine not only diminishes the severity of the illness, but conclusively reduces transmission as well.

Vaccine Passports in the News