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Covid 19 Vaccines and the Law - A Lawyer's Perspective

As the various Covid 19 vaccines begin to roll out of warehouses and onto aircraft for immediate distribution, now is as good a time as any to look forward and see how the implementation of a vaccine might look and the various legal issues surrounding inoculation.

Certainly if you have one or more social media accounts, depending upon your political or ideological bent, you no doubt have those very vociferous anti-vaxer’s who view inoculation as part of some vast government conspiracy to control the populous or worse.

Other more reasoned voices simply fear the vaccines because they are and will remain untested. It’s not difficult to see how, given the political landscape in this country, a scenario in which nearly half or more of the population won’t accept a vaccine. If this holds up a population only 50 percent vaccinated will remain a contagious population. This would be insufficient by all scientific accounts to obtain the goal of herd immunity. What, then might the government do and how far can they go?

The first question is what branch of the government are we speaking of. Governmental powers are distributed vastly differently. The Constitution never intended that the Federal Government have any kind of police power and delegates that function to the States. Over the centuries the law has broadened greatly and in many areas of the law the Federal Government does retain some police power. We have the FBI, and a DEA by way of example.

Many on the right cringe in terror at the idea of national mandates of any kind. We have not had any. Much of that lies in the real world status of the distribution of powers. The Federal Government has far less power to enforce things like mandates then State and Local Governments do, which is largely why we have not seen any. They would likely never hold up in court.

That said, the first question to ask is whether there is any support for the idea of a nationally mandated vaccine. The surprising answer to that question is yes. In the early part of the 20th Century the country was in the midst of a deadly small pox epidemic. In Massachusetts mandatory vaccination policies went into effect and were challenged in the courts.

In the case of Jacobson v Massachusetts the United States Supreme Court held in favor of the State in enforcing a mandatory vaccination reasoning that the public good outweighed the Due Process considerations raised by the man who refused the vaccination. Since then there have been no other cases to raise this issue directly at the Supreme Court level and it therefore, technically remains the law of the land. The question is, would it remain so if in fact the Federal Government were to try to act in this way, or similarly, if a State were to enact such an ordinance? I think we will find out soon enough.

In our courts we have a process known as stare decisis, which roughly means courts should defer to the judgment of other courts that rendered decisions before them at the highest level. Ergo, since the Jacobson decision is a US Supreme Court decision it can be argued it should not be disturbed. Conservative Judges are known to behave with greater deference to older decisions than are liberal judges and we most certainly have a conservative court now.

The answer, in my view, to the question of whether the law generally supports involuntary vaccination through the issuance of governmental action, such as a state or federal order or law, is a resounding yes. This of course can change if a state action compelling forced vaccination makes it way to the Supreme Court and new law is made.

The question of would the Federal Government Issue such a mandate is really a political one. My feeling is that I tend to doubt it. However, if there are significant deaths attributable to the decisions of anti-vaxer’s anything is possible. I think it more likely to be upheld in the courts if States seek to enact ordinances or orders because they have greater police power and there is a good amount of precedent for them to enforce these orders.

Anyone with a school age child here in Los Angeles where I live, MUST produce a vaccination card against a whole host of disease including measles, tetanus, hepatitis or they very simply cannot go to school. Period. In California former Governor Brown made state law stricter in this area refusing to grant preference exemptions for vaccinations and Governor Newsom recently made vaccination requirements for schools even more stringent.

It’s not a stretch by any means to see places like California and New York mandating Covid 19 vaccine for the schools. The question is will they do it for adults and is there any precedent. The New York State Bar Association recently recommended a mandatory vaccination law.It remains to be seen. This is, however a crisis of such historic calamity that if the death rates continue and the actions of anti vaxer’s can be tied to these choices that States could very well try to enforce vaccinations if the public resistance is high. These fights will be happening State by State, maybe even County by County. There may never be a full legal national consensus.

The discussion of what next only begins with what may or may not happen on the governmental level. The rules of law applicable to private businesses and homes are vastly different. Most Americans believe the Constitution imbues them with a vast array of rights that apply to them anywhere at any time. This is a false narrative. The Constitution is only meant to protect citizens from the over-reaching of government or government actors. It has little to no application in the private sector.

No Shoes. No Shirt. No Service. Private businesses are allowed to “discriminate” with quite obvious exceptions for race, gender, age, sexual orientation or even disabilities. There are legal remedies for discrimination but a private business can regulate who they want in their business at any time and for any reason they see fit. A private citizen has no right to do whatever they chose in someone else’s business or home. This would include, failure to vaccinate.

Qantas Airlines; Australia’s national air carrier was the first business to announce it would be requiring proof of vaccination to board their planes. And herein lies the fate of the world’s anti’-vaxer’s. Assuming the ready to launch vaccines prove effective with the side effects being nominal, vax cards or vaccine certifications may be the way forward, and it all seems perfectly legal.

As a traveler you already have to present vaccine cards to enter many countries and some countries even ban people for being carriers of HIV. Travel. Sporting Events. Dining. Concerts. All the things we love to do and miss greatly¬† will be able to move forward again, maybe quickly with the introduction of vax cards. People who don’t like it will continue to have the right to stay at home or watch music on their televisions.

Social pressure and a want for our personal lives again will in all probability be the way to move forward as opposed to oppressive and divisive governmental regulation; though its not difficult to see how some of the more autocratic Governors like Newsom and Cuomo wont jump at the chance to announce more unenforceable edicts. At some point, if enough people don’t come along voluntarily something like that may be a necessity. If so, the law of the land as it stands would support it until someone changes it.

Brian Michaels

12/1/2020

This is opinion and not meant as direct legal advice.

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