Mandates, passports, restaurant requirements, and more: Making life “extremely” difficult for the unvaccinated

As government, universities, and private employers implement vaccine mandates and some municipalities require vaccines for entry to restaurants and gyms, it’s worth considering the applicable legal standards and how this would actually work in practice when some two thirds of minority groups will no longer be allowed to eat out.  Is this the America you want to live in?

Let me begin by saying that I’m vaccinated and I have encouraged others to get vaccinated themselves.  I believe the vaccine offers significant protection from coronavirus, even Delta, and that it is the best option we have at this time.  The question now is how best to get more people vaccinated and whether mandates are a viable option.  This post is on that topic.

Vaccination rates and the significant portion of the population that remains unvaccinated have become a major cause for concern amidst the Delta surge, namely how best can we ensure people get vaccinated as quickly as possible.  Over the past several months, governors and other political leaders have tried the carrot, offering everything from a beer to a lottery ticket if you got your shots.  Recently, however, many have decided that a carrot isn’t enough and it’s time to wield the stick.  As CNN’s Fareed Zakaria described it, we have to make life “very difficult” for the unvaccinated, and so New York City will require proof of vaccination for entry into restaurants and gyms starting in September.  New York State is already requiring the same for concerts and other large events.  Similarly, the Biden Administration is mandating vaccines for all government employees including the military, as are many states for their workers, and colleges for students and faculty.  The private sector appears to be following suit with companies like Uber, Facebook, Google, Netflix, and Delta Airlines also requiring vaccination for their associates and vendors.

Some are even talking about a potential nationwide vaccine mandate, applying to everyone in the United States.  Helpfully, these advocates point out that both the private sector and the government already have this power and have used it before.  Writing for Scientific American last week, Lawrence O. Gostin declared that “Vaccine Mandates Are Lawful, Effective and Based on Rock-Solid Science.”  For private businesses, “Both the Department of Justice and the Equal Employment Opportunity Commission (EEOC) have ruled that businesses may lawfully require workers to get a COVID-19 vaccine as a condition of coming to the workplace. However, businesses must grant legitimate medical or religious exemptions. The only major court ruling to date upheld Houston Methodist Hospital’s COVID-19 vaccine mandate. The private sector has wide discretion in setting conditions for workers and customers, and businesses have a legal and ethical duty to keep the workplace safe.” For the government, “States have long had the constitutional authority to mandate vaccinations, which the Supreme Court has upheld twice, first in 1905 and then in 1922. The federal government, however, has limited power to mandate vaccines. It can only require them to prevent transmission of a dangerous infectious disease across state lines or international borders. The federal government has never sought to require nationwide vaccinations, and the courts probably would not allow it…But when governments act as employers, they would be in a similar legal position as businesses.”

The Supreme Court ruling in 1905 is the applicable standard as the 1922 case simply upheld the earlier one.  In 1905, Pastor Henning Jacobson was fined $5 by the city of Cambridge, MA for refusing to receive the smallpox vaccination.  He sued claiming the mandate violated his 14th Amendment equal protection rights.  The Supreme Court ultimately upheld the mandate based on the state’s police power, stating that individual liberty is not absolute.  “According to settled principles, the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”

The Court continued, “The mode or manner in which those results are to be accomplished is within the discretion of the State, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a State, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States or infringe any right granted or secured by that instrument.”  Responding to the argument that any infringement of rights is unconstitutional, they said, “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.”

In addition the court considered arguments about the efficacy of the vaccine and also potential side effects, finding that state law delegated the authority to public health experts and it was not within the purview of the court to second guess medical professionals, especially in cases where the efficacy and safety of a vaccine is well established.  At the same time, the Court acknowledged this police power was not absolute, noting “the police power of a State, whether exercised by the legislature or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression” and that the “General terms” of any law “should be so limited in their application as not to lead to injustice, oppression or absurd consequence.”  They must also not go “too far beyond what was reasonably required for the safety of the public.”

On its surface, it seems reasonable to believe that any statewide mandate would pass Constitutional muster.  At the same time, there are a few critical factors to consider.

First, the court’s interpretation of the 14th Amendment and the equal protection clause has broadened significantly over the past 100 years.  In the first half of the 20th century, the courts were ruling that segregation’s false “separate but equal” standard was Constitutional and didn’t violate the 14th Amendment.  This view would not be overturned until 1954 in Brown v. Board of Education.  Even Freedom of Speech wasn’t recognized in its modern form until landmark cases in 1919 and 1927.  The right to privacy was not enshrined until Roe v. Wade in 1973.  Generally speaking, courts today are more amenable to prioritizing natural rights over state power, especially in healthcare and other personal decisions, and it is quite possible a modern court will reach a different conclusion.

Second, smallpox was nothing short of a menace to society, more contagious than COVID-19 (at least the original strains) and far, far more lethal with a case fatality rate of some 30%, meaning close to one in three people catching it would die.  It was responsible for the deaths of some 2.3 million people per year, every year, back when the population of the world was about one sixth what it is today.  The coronavirus case fatality rate by contrast is around .5%, much closer to influenza for which there is no vaccine mandate.  To put this in perspective, some 4.3 million people have died of COVID-19 across 203 million cases in 18 months.  Smallpox would have killed almost 61 million.  Clearly, just about everyone would agree a virus that kills one in three is a severe threat requiring drastic measures, but it’s equally unclear if coronavirus requires the same, some people certainly think so, others obviously don’t.  The courts have long acknowledged a balance between liberty and security, even in the Jacobson ruling itself, and how the wildly different fatality rate might figure into any decision is completely unknown.

Lastly, it’s important to consider the timeline and the specific vaccine.  The Cambridge mandate was put into effect in 1902 based on law that was passed in 1897, but the court didn’t rule until 1905.  Further, the smallpox vaccine was well established at the time and required just a single dose.  There were no ongoing boosters, variants, or other open-ended considerations, unlike with coronavirus.  Ultimately, this gets to the crux of two key issues, both raised by the Jacobson ruling itself.  What are the bounds of what is “reasonably required for the safety of the public” and what constitutes an “unjust,” “oppressive,” or “absurd” consequence?

We can consider what might happen in New York City where vaccination proof is soon to be required for restaurants, gyms, and other facilities. For starters, vaccination rates vary substantially by race and ethnicity, from a high of 72% for Asians to a low of 32% for blacks.  In other words, almost three quarters of Asians will be able to enjoy dining out, going to the gym, and going to concerts, while almost two thirds of blacks will be denied access to those facilities.  Whites are right in the middle, at 46%, meaning over half will not be allowed to fully participate in society until they get vaccinated.  This has prompted the mayor of Boston to compare the requirement to Jim Crow and slavery.  “There’s a long history in this country of people needing to show their papers,” acting Democrat Mayor Kim Janey told reporters last Wednesday.  She continued, “during slavery, post-slavery, as recent as…what [the] immigrant population has to go through here. We heard Trump with the birth certificate nonsense,” concluding “Here, we want to make sure that we are not doing anything that would further create a barrier for residents of Boston or disproportionally impact BIPOC (Black, Indigenous and people of color) communities.”

While no one knows how a court might rule, this is the precise language of an equal protection argument.  These numbers, of course, can and will change as more people get vaccinated, but any statewide or other local mandate is going to have to provide a reasonable timeframe for the unvaccinated to get vaccinated and a reasonable means to verify vaccination.  Given the vaccination process takes about 6 weeks for the most popular two-shot vaccines, this timeframe is likely to be at least several months as it’s almost impossible to believe the courts will agree to penalize two thirds of the Black population under any circumstances.  If you disagree, imagine this was a voter identification requirement and two thirds of a minority group didn’t have any authorized ID.  No court in the United States would uphold such a requirement, nor should they.

In the interim, there will certainly be debate about whether or not mandating vaccines is just in a world of unequal health outcomes.  Democrat politicians and the mainstream media have largely framed the discussion to date as the educated and rational vaccinated population versus an uneducated and irrational anti-vaccine population, but the real world is of course a lot messier.  I received my vaccine at a pharmacy less than a half mile from my house, but simple access, not to mention the non-insurance paperwork, is going to be a burden on the underprivileged and the courts will almost surely take this aspect into account.  Perhaps not to strike down the mandate in totality, but at least insisting on ensuring equal and adequate access, which might well push the timeline past the end of the pandemic.

This is where the “absurd” argument comes in.  There is little doubt, my caveats above notwithstanding, that given adequate access and time state and local governments can mandate a one time vaccine for public health purposes.  The coronavirus pandemic isn’t that simple, however.  The Delta variant sweeping the country right now is less impeded by the vaccine than previous strains.  The precise metrics are still unknown, but there are far more breakthrough infections, hospitalizations, and deaths in vaccinated populations with Delta than during the original clinical trials.  The next variant may be even more resistant to the vaccine and the pharmaceutical companies are already promising booster shots.  With that in mind, can the government mandate perpetual vaccinations for strains and shots that don’t even exist yet?

I don’t know for sure, but I find it highly doubtful that would be the case.  Some have compared mandating vaccines to non-smoking laws or seatbelt requirements, and, while I understand the appeal, these comparisons are overly simple.  Enforcing either of those mandates is entirely straightforward:  You can easily observe whether or not a person is in compliance and fine them if they aren’t, plus complying itself is easy, either take a simple action like putting on a seatbelt or don’t take an action like lighting up a cigarette.  Vaccine mandates, in contrast, are both burdensome to comply with, especially for the underprivileged, and intrusive to enforce.  Enforcement is an under considered aspect of the discussion.  Are we really going to expect people to show their vaccine papers every time they enter a store?  Are we going to expect stores and other businesses to verify and police these papers?  Or ware we going to empower police to roam the streets and check vaccine passports as they are in France? Either way, these aspects will certainly be considered in any court’s decision.

In summary, it is true that the courts have generally given states and municipalities broad authority to protect public health with vaccine mandates and other initiatives.  It is also true that the courts have never supported a mandate for a disease like coronavirus, much less an open-ended mandate with booster shots, and that, in general, the courts have been more amenable to arguments based on individuals rights and privacy, especially in the healthcare sphere, than they were in 1905.  Lastly, it should be obvious to anyone that there are practical concerns in addition to legal concerns, nor is a person voicing these concerns necessarily an ignorant anti-vaxxer.  We knew from the start that vaccinating the entire population wasn’t going to be easy, anymore than masking everyone was easy or stopping the spread was easy; mandates and other requirements might not make it any easier.  They are far from the quick fix many politicians and members of the media seem to think, and the legal ramifications are anything but clear.

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