By MIKE MAGEE
The power to impose vaccines was contested and resolved over a century ago. Justice John Marshall Harlin, a favorite of current Chief Justice Roberts, drafted the 7-2 majority opinion in the 1905s. Jacobson v. Massachusetts. Its impact has been epic.
In 1905, Massachusetts was one of 11 states that required mandatory vaccinations. Reverend Henning Jacobson, a Lutheran minister, challenged the city of Cambridge, MA, which had passed a local law requiring citizens to be vaccinated against smallpox or pay a $ 5 fine. Jacobson and his son claimed they had had bad reactions to the vaccine in the past and refused to pay the fine, arguing that the government was denying them their due process rights under Amendment XIV.
By speaking out against them, Harlan wrote, “Freedom for all cannot exist under the effect of a principle which recognizes the right of everyone to use their own [liberty]… ”
Of course, a state’s right to legislate on mandatory public health measures does not oblige it to do so. In fact, as we’ve seen in Texas and Florida among others, they may decide to do the exact opposite – outlawing rescue warrants (for masks or vaccines). At least 14 states have already passed laws banning vaccination mandates from employers and schools and imposing penalties in Republican-controlled states.
State powers are therefore clearly a double-edged sword in health care.
Questions to someone?
Does the federal government have the power to come to the rescue?
NO. So far, the judgments refer specifically to the rights of states. These include the decision of 1922, Livestock v. King, where the decision supported the right of a local public school district to require vaccination for admission to school. In this decision, Judge Louis Brandeis wrote, “A state may, in accordance with the Federal Constitution, delegate to a municipality the authority to determine under what conditions health regulations should come into force. ”
Can the federal government or require you to be vaccinated in the United States (except religion and disability)?
Isn’t that what they do with a warrant?
NO. A vaccination warrant means that the government “places a condition on your return to society or your participation in a particular activity.”
If a state doesn’t impose masks, distancing, or vaccines and a business decides to do so, is that legal?
With appropriate exceptions for religion and disability, when the intention is to protect employees and customers, lawyers believe YES, although that remains to be decided.
If a company asks me if I am vaccinated on entry, is it a HIPAA violation?
NO. HIPAA regulations restrict hospital and healthcare workers, not store clerks.
Doesn’t the First Amendment give me the right to refuse vaccines?
NO. According to jurists: “The freedom to believe in a religion is absolute under the First Amendment. However, the freedom to act in accordance with one’s religious convictions “remains subject to regulation for the protection of society”.
Didn’t the FDA’s “emergency use authorization” require vaccination warrants?
NO. This authorized the sale and distribution of the vaccine but did not require the use of anyone.
Is President Biden doing all he can, within executive powers, to protect Americans from the pandemic?
Legal expert, law professor at Georgetown Laurent Gostin, say yes. “While states have almost all of the powers to protect public health, the powers of the federal government are limited… (Biden) acts fully legally under those powers.
1. The President “uses his executive power to order vaccinations for the federal workforce.” (this includes members of the military.)
2. It uses its purchasing power through Medicaid and Medicare to secure vaccination mandates in health facilities.
3. And it uses the Occupational Health and Safety Act to mandate vaccinations in all businesses with 100 or more employees. All of this is comfortably within the power of the president.
Biden could take it one step further and attempt, by offering financial rewards to states that mandate vaccines, or through the commerce clause of limiting interstate travel from non-mandated states, to expand compliance, but that would most certainly generate protracted legal challenges. Federal Act under Title VII of the Civil Rights Act of 1964 and Title I of the Americans with Disability Act also require the establishment of vaccine exemptions for religious and medical reasons. (Nationally, Less than 1% requested these exemptions.)
As for the States, it is a complicated matter. While Texas Governor Abbott is in the gallery, the Texas Federal District Court in Bridges et al v Houston Methodist Hospital refused help to one of the 117 suspended employees and threatened with dismissal if they refused to be vaccinated. The decision said: complainants “can freely choose to accept or refuse a COVID-19 vaccine; However, if [they] refuse, [they] will simply need to work elsewhere… Any job has limits on the behavior of the worker in exchange for his remuneration. It’s all part of the deal. “
In another recent case, the United States Court of Appeals for the Seventh Circuit in Indiana, and the Supreme Court in an appeal, relief denied to eight Indiana University students excluded for refusing to comply with mandatory immunizations. The students had chosen not to ask the university for a medical and religious exemption, which, if granted, would allow attendance if they wore masks.
States nationwide generally require incoming students to have up-to-date proof of vaccines to avoid 11 childhood illnesses.
Over a century ago, the fight for vaccines was no less fierce than it is today. A New York Times Editorial at the time of the Jacobson decision of 1904, called the dispute a “conflict between intelligence and ignorance, civilization and barbarism”
On the “intelligence” side, Nearly 60 best medical organizations issued a joint statement on July 22sd in support of mandatory vaccines for all healthcare and long-term care workers as a “logical compliance with ethical commitment” to patients.
Mike Magee, MD is a medical historian and health economist and author of “Code Blue: Inside the Medical Industrial Complex”.
Categories: COVID-19, Health policy, Public health