There is something baffling happening in the United States right now. Well, to be fair, there are MANY things baffling happening in the country right now. But one thing in particular that has me scratching my head these days is why any company would mandate all employees to get the covid shot. I have a few theories as what may be driving this, but lacking any firm evidence, I’m not going to discuss those here. I’m also not sure whether these businesses are always consulting legal counsel before making this decision, or–if they are–whether they are following advice of counsel. My hunch is that, in many instances, they aren’t.
The reason I say this is two-fold. First, even if someone were to contract COVID-19 and become ill, it would be virtually impossible to prove that that individual contracted the illness at work. People go places. Lots of places. How would anyone know whether it was contracted at work or (just as plausibly) at the myriad other places people visit every day, like grocery stores, restaurants, and movie theaters? The answer, of course, is there would be absolutely no way to discern this, rendering a plaintiff’s chance of success in court very, very minute. I suppose someone could argue that the employer’s policy not to demand that every employee get the injection was somehow reckless, but how is it any different from the businesses that are allowing customers to enter without proof of vaccination (a term I use loosely, and only because it’s the commonly accepted verbiage)? It isn’t. For the record, I don’t believe that businesses should force their employees or their customers to get vaccinated or show proof of any medical procedure, but my point is that one isn’t riskier than the other. And for businesses that are open to the public, such as the aforementioned stores, restaurants, and theaters, it is disingenuous to say that they are mandating their employees to get the shot, when customers are entering every day who haven’t received it. Perhaps disingenuous is too kind. It’s a lie.
The second reason mandates don’t makes sense to me from a legal perspective is that the business owner who enacts a mandate does face a very high probability of being served with multiple religious and disability discrimination lawsuits, as well as workers’ compensation claims for adverse reactions to the shot (which will also have the collateral effect of lost productivity, and therefore lost revenue, for the business). What’s more, these discrimination lawsuits are much more likely to be successful than a claim for damages due to contracting covid in the workplace as a result of the absence of a mandate.
In a nutshell, the employer who mandates the shot faces a very high risk of liability for imposing mandates, and the employer who doesn’t mandate the shot faces almost no liability. So what’s going on here?
Have all of the businesses (including colleges and universities which are–newsflash–also nothing more than businesses) in the country suddenly become altruistic, placing people over profits, willing to risk everything they have (including their bottom line) for the public health of their employees? Excuse me if I sound crass, or even a bit jaded, but I think not. Do many business owners care about their employees, and do many of them want them to be healthy and productive? Sure. But make no mistake, when a corporate executive is told that his/her business stands to lose millions of dollars if he/she does something, and lose almost no money if he/she doesn’t, the executive almost always chooses the second option. So in the vast majority of cases, I think a business that asserts it is mandating the shot for no reason other than to protect the health and safety of its employees is flat-out lying (there, I said it again).
The more likely explanation is that someone–or something–else is driving the bus. Again, I’m not going to speculate in this post as to who/what that/those entity(ies) may be, because I believe it’s irresponsible to make claims without firm evidence (but believe me, if I ever have it, I will reveal it). But the fact is this just doesn’t make sense. There’s got to be more to this story.
The viewpoints expressed in this blog post are those of the author alone, and are not representative of any organization or entity. Nothing in this post should be construed as legal or medical advice. Consult a licensed attorney for legal advice, and a licensed health care provider for medical advice.
In a free nation, the concept of “shots required or be fired” seems a frightening proposition.
Lately, the email I receive more than any other goes something like this:
My employer has mandated that I receive the covid shot. They told me that I will have to wear a mask if I don’t get it. Isn’t that discrimination? Isn’t this also illegal since it’s only authorized under an EUA and not FDA approved? And isn’t it a HIPAA violation for my employer to demand that I reveal my vaccination status?
Let’s start with the last question first, which is the easiest one to answer: No. HIPAA only prohibits “covered entities” (e.g. health care providers, health insurance companies/plans, health care clearinghouses) from disclosing confidential health information, and from maintaining it in a way that could compromise confidentiality and security. Nothing in HIPAA prohibits a person, or even a HIPAA covered entity, from asking you for your confidential health information. Think about it. Every time you see a new doctor you are required to fill out a form providing your complete medical history to the doctor. You can refuse to provide it, but the doctor can also refuse to treat you, as doing so could actually be dangerous to your health without full knowledge of your complete medical history. You can also refuse to provide your employer, or anyone who asks, with your medical information, but there may be consequences. More on that in a minute.
What about the fact that the covid shots have only been granted an Emergency Use Authorization (EUA), so they are not FDA approved? Isn’t this grounds for a lawsuit? Again, the short answer is, no. First, the relevant statute, 21 U.S.C. § 360bbb-3, does not (contrary to popular belief) actually prohibit employers from mandating an EUA product, such as the covid shot. It simply states that the Secretary of Health and Human Services (HHS) must establish:
Appropriate conditions designed to ensure that individuals to whom the product is administered are informed—(I)that the Secretary has authorized the emergency use of the product;(II)of the significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are unknown; and(III)of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.
This means that this informed consent and right to refuse is just one of the conditions that the Secretary of HHS must place on the issuance of an EUA. Read the language again carefully. It does not say that employers must notify employees of the right to refuse. It simply says that the person to whom the shot is administered must be informed of the right to refuse–presumably, by the person administering the shot. Even in workplaces where the shot is being offered in a makeshift “clinic,” this would be satisfied simply by the clinician administering the shot advising (either verbally or in writing) that the person has the right to refuse it. Moreover, a clinician’s failure to do this does not mean that the shot cannot be administered. It simply means that that particular clinician has not fulfilled that condition placed on the issuance of the EUA. Even were this to be challenged in court, it is unlikely that the EUA would be revoked, since the Secretary still fulfilled his duty to place this condition on the issuance of the EUA. In other words, all that’s required is that the Secretary place this condition on the issuance of an EUA, not a showing that every person who administers the shot is complying with the condition.
Even less likely is that employers would be ordered to stop mandating the shot as a condition of employment. All of the “talking head” public health “authorities” have said that the receiving the shot is the best way to keep prevent people from contracting and spreading the virus. Regardless of whether this is true, that’s what they are saying. Employers are not expected to be public health experts, and a court would likely give an employer a lot of leeway in relying on the advice of the individuals who are (or, at least, hold the title of) public health experts. Courts are also extremely deferential to the judgment of administrative agencies such as the Equal Employment Opportunity Commission (EEOC), which has already issued guidance stating that federal discrimination law does not prohibit employers from mandating that all employees receive the covid shot, so long as employers provide reasonable accommodations for religious and medical exemptions, in appropriate circumstances. In the same guidance, the EEOC states that employers may mandate masks, require employees to undergo temperature checks and covid tests, and collect medical information from employees. While the EEOC guidance is not law, in my opinion employees who flatly refuse to submit to one or more of these workplace requirements could face serious discipline up to and including termination of employment, and the law would not be on the employee’s side in a wrongful termination lawsuit. The other, more obvious problem, is that one or all of the covid shots are likely to receive full FDA approval before any of these lawsuits reaches its conclusion, rendering the EUA argument moot.
But what about an employee who requests a religious accommodation, or an accommodation for a disability, and is denied? Does that employee have a case? Maybe. This is the one scenario wherein I think an employee who suffers an adverse employment action (such as a suspension without pay, or a termination of employment) may actually be able to prevail against his/her employer in a discrimination lawsuit. If, for instance, an employer issued a blanket denial of an accommodation request, without even trying to explore options for the employee to continue working without the receiving the shot, the employer would almost certainly be subject to liability. If, however, the employer offered mask wearing as an accommodation, in my opinion most courts would view that as a reasonable accommodation. The situation would be complicated, of course, if the person also requested an exemption from mask wearing on religious or medical grounds.
It’s important to note that in any case, an employer has a right to request documentation (within reason) to support one’s request for a religious or medical accommodation, such as a letter from clergy or a note from one’s health care provider. This is not, as some have suggested, an illegal intrusion into one’s privacy. An employer has the right to request this information to ensure that the employee is being honest, and not just inventing a religious or medical exemption as an excuse not to get the shot because, in reality, the person is just uncomfortable with receiving it due to “safety concerns.” Should having safety concerns be enough to refuse a workplace mandate to receive the shot? I think so. But the law says differently.
Remember that each accommodation request must be examined by the employer on a case-by-case basis, so what is a reasonable accommodation for one person may not be for another, and what is a reasonable accommodation for one employer may not be for another. Every workplace is different. Every job is different. Some employers can allow an employee to telework as a reasonable accommodation, without imposing any undue burden or hardship on the employer. For other jobs, such as police officers, firefighters, factory workers, and others, telework is obviously not a reasonable accommodation. In such cases, masks would likely be viewed as a reasonable accommodation.
Is all of this fair? Is all of this logical? Is all of this what we should expect as citizens of a “free” country? Perhaps not. But the best case scenario, as I see it, is that we establish clear legal precedent that says employers must honor all legitimate requests for religious and medical exemptions from the covid shot. Either that, or we lobby Congress to amend Title VII of the Civil Rights Act of 1964 to include “vaccination status” as a protected class (though even that may not be enough, given the covid shot’s questionable status as a “vaccination”). In any event, let me be clear: I am vehemently opposed to employers mandating the covid shot as a condition of employment, or continued employment. In a country led by people who are purportedly champions of choice and bodily autonomy, one should never be faced with choosing between a job and a jab.
Nothing in this post should be construed as legal or medical advice. The opinions expressed herein are those of the author and not of the CT Freedom Alliance, LLC, or any other organization. Consult an attorney for legal advice or representation.
It used to be so easy. You’d watch an old Western as a kid, and see two cowboys standing face to face at high noon for a duel. One was wearing a white hat, the other was wearing a black hat. You knew who the good guy was. You knew who to root for.
Today in so-called “conspiracy theory” circles talk abounds of “white hats,” “black hats,” and even “grey hats.” He’s a “white hat,” someone will write, implying that he is someone who can be trusted. A black hat, of course, is someone evil, and a grey hat is someone who–like most all of humanity since the dawn of time–has done both good and evil. Such references, at least, bear some credibility because they make presumptions based on one’s actions, rather than a title, position, or pedigree. You never hear anyone in these conversations say, “He’s a white hat because he is the Attorney General,” or “She’s a white hat because she went to Harvard.”
In the context of the health freedom movement, however, one of our greatest challenges is conveying to those outside of our movement (those whose eyes have not yet been opened to the rampant fraud and corruption in the dealings between the pharmaceutical industry, government, and mainstream media) that you can’t trust a person on the basis of his position, or by the letters after his name–in other words, on the basis of the “hat” he wears. I can’t tell you how many times I’ve seen so-called journalists quote the director of the CDC, or some other pharma-shill MD, as saying, “vaccines have been proven to be safe and effective,” or, “vaccine injury is one in a million.” The problem with these statements isn’t just that they are so blatantly false, it’s that they are never, ever, backed by a even a passing reference to a shred of supporting evidence. The “journalist” never asks the most obvious follow-up question that one would expect of someone who is truly interested in the pursuit of truth, rather than one who is merely a puppet of her pharma advertising overlords: “What evidence do you have for that statement?” Instead they are given a pass, and their words are allowed to pass for gospel merely on the strength of their credentials.
When will we learn that we must put our trust in the authority of the evidence, rather than the authority of the person? How many times have you heard people who oppose health freedom simply dismiss our concerns about vaccinations with the patronizing and vapid declaration, “I believe science”? The phrase “science is real” has even become a hallmark of virtue-signaling t-shirts, flags, and lawn signs. Its predecessor, “the science is settled,” is still more idiotic. Anyone who understands anything about science knows that science is never settled, and certainly not with regard to something like vaccines, that are not double-blind placebo safety tested before FDA approval, and whose recipients are not studied against a control group after they are rushed to market. But somehow it has become fashionable among crowds of persons who supposedly value science above all else to blindly accept unsupported proclamations about science, and to ignore mountains of peer-reviewed studies to the contrary.
It doesn’t take long to realize that we aren’t having a debate about the science of vaccines. We aren’t debating the authority of the evidence. We are debating the authority of the person. The most ingenious thing the pharmaceutical industry ever did was purchase the majority of the advertising for every network and cable news program. With that grand gesture, the media became little more than a pharmaceutical industry spokesperson, functioning as its mouthpiece of propaganda. The media doesn’t report “science.” Where was the mainstream media when on November 22, 2020 Dr. Paul Thomas and Dr. James Lyons-Weiler published, in the International Journal of Environmental Research and Public Health, the first-ever study of health outcomes in vaccinated vs. unvaccinated children in Dr. Thomas’s pediatric practice? Not a single outlet reported the results of the study, or that it had even been conducted and published. Not one article was written informing the public that “zero of the 561 unvaccinated patients in the study had attention deficit hyperactivity disorder (ADHD) compared to 0.063% of the (partially and fully) vaccinated,” or that “the overall rate of autism spectrum disorder (0.84%) in the cohort is half that of the US national rate (1.69%).” No television news broadcast dared declare the fact that the study’s “data indicate that unvaccinated children in the practice are not unhealthier than the vaccinated and indeed the overall results may indicate that the unvaccinated pediatric patients in this practice are healthier overall than the vaccinated.” https://www.mdpi.com/1660-4601/17/22/8674
Instead, just 11 days after the study was published, the Oregon Medical Board suspended Dr. Thomas’s medical license, ostensibly for reasons unrelated to the study. The Board alleged that Dr. Thomas’s recommendations to his patients resulted in children developing vaccine-preventable illnesses, and “determined from the evidence available at this time that Licensee’s continued practice of medicine would pose an immediate danger to the public and to his patients,” according to the order of emergency suspension.
It is abundantly clear that the suspension is, in fact, just yet another example of the radical cancel culture that now dominates nearly every aspect of American society, from the mainstream media, to politics, to medicine, and beyond. The Oregon Medical Board is punishing Dr. Thomas for his speech, and attempting to silence him. The message is clear: question our edicts, and you will pay; conduct research that reveals anything other than the mainstream narrative about vaccines, and you will never work again. This has nothing to do with medicine or public health. This is nothing other than totalitarianism. (If you’d like to support Dr. Thomas in fighting this medical tyranny, you can do so here.)
The bottom line is this: there is nothing telling in the person, there is nothing telling in a title, there is nothing telling in the “hat” that someone wears. Only when people stop believing that the Directors of the CDC or FDA are the “white hats”, and anyone who questions them are the “black hats”, will we ever move past this divide. Trust the authority of the evidence, not of the person. I propose that we adopt that as our mantra moving forward.
Today, December 21, 2020–just four days before Christians everywhere will celebrate the birth of their Savior–the Vatican’s doctrinal office (The Congregation for the Doctrine of the Faith) issued a statement alleging that it is “morally acceptable” for Catholics to take the COVID-19 vaccine, despite the fact that aborted fetal cells were used in the development of the vaccine. The doctrinal office pointed to the “grave danger” of the COVID-19 pandemic, reasoning that the threat posed to life on earth outweighs the inherent immorality of profiting from the murder of innocent life in the womb. The office continued,
When ethically irreproachable COVID-19 vaccines are not available … it is morally acceptable to receive COVID-19 vaccines that have used cell lines from aborted fetuses in their research and production process.
Let’s just start with the easy part: the Vatican is WRONG, dead wrong (quite literally, as they are advocating that Christians seek to gain a profit from death itself). It is NEVER morally permissible to commit evil acts, even for the sake of some “greater good.” That is absolutely and unequivocally at odds with Catholic teaching, and faithful Catholics (not just the kind that are more than happy to conceal the image of God with a mask in the house of the Lord) know this already. It is also NEVER morally permissible to profit from the evil of others. As The Catechism of the Catholic Church (CCC) tells us,
A good intention (for example, that of helping one’s neighbor) does not make behavior that is intrinsically disordered, such as lying and calumny, good or just. The end does not justify the means. Thus the condemnation of an innocent person cannot be justified as a legitimate means of saving the nation. CCC 1753 (emphasis added).
It is therefore an error to judge the morality of human acts by considering only the intention that inspires them or the circumstances (environment, social pressure, duress or emergency, etc.) which supply their context. There are acts which, in and of themselves, independently of circumstances and intentions, are always gravely illicit by reason of their object; such as blasphemy and perjury, murder and adultery. One may not do evil so that good may result from it. CCC 1756 (emphasis added).
“An evil action cannot be justified by reference to a good intention” (cf. St. Thomas Aquinas, Dec. praec. 6). The end does not justify the means. CCC 1759 (emphasis added).
Were we to follow the Vatican’s reasoning to its natural and logical conclusion, it would be morally permissible for one to willfully slaughter a child in exchange for a terrorist’s promise that he would spare the lives of 10 hostages if you did so. After all, in that dreadful scenario, the ratio of life preserved to life lost would be 10:1, so your act of murder actually saved 10 lives. Given the threat that all 10 of those hostages would be killed if you chose not to kill the child, you really had no “ethically irreproachable” option, right? I hope it is patently obvious that this is a rhetorical question.
But you know what? It really doesn’t matter what they say, because their “opinion” is irrelevant. For the purposes of the First Amendment, if you hold a sincere personal religious belief that it is immoral to use or receive a product that was procured through the death of innocents, you can legitimately claim a religious objection to the COVID-19 vaccine (or any other vaccine produced using aborted fetal cells, like the measles/mumps/rubella, or MMR, vaccine), regardless of your church’s official (or unofficial) position on the subject. The Supreme Court of the United States, while never precisely defining “religion”, has clearly stated that a law violates the Establishment Clause of the First Amendment if it gives preference to objections founded in theistic beliefs over those that stem from one’s moral, ethical, or philosophical beliefs. See Welsh v. United States, 398 U.S. 333, 356-61 (1970). As Justice Clark so eloquently stated in United States v. Seeger, 380 U.S. 163, 184 (1965),
The validity of what he believes cannot be questioned. Some theologians, and indeed some examiners, might be tempted to question the existence of the registrant’s ‘Supreme Being’ or the truth of his concepts. But these are inquiries foreclosed to Government.
Those of us involved in the ongoing struggle for medical freedom in this country have heard time and again politicians dismissing their constituents’ religious beliefs as “invalid” simply because they do not align with a tenet or the official position of one’s stated religious affiliation. This would seem to fit squarely within the ambit of the line of inquiries “foreclosed to Government.” Government officials have absolutely no right to tell you that your beliefs aren’t valid. Politicians are not the arbiters of our faith. We are a nation of free persons, and nowhere does that freedom manifest itself more dearly than in our religious beliefs. Just as it was reprehensible for governors and mayors to pick “winners and losers” among our businesses through illogical and unconstitutional lockdown orders, it is even more reprehensible for state actors to decide which beliefs are worthy of protection. The Framers of our Constitution agreed, and so gifted us the First Amendment. God bless them, and God bless the brave men and women who have fought so valiantly to defend it. We will not stand idly by while these godless tyrants try to tear that precious document to shreds, besmirching the memory and the honor of those who died for its sake. Stand tall. Stand proud. Stand together, one nation, under God.
The views expressed herein are the solely the opinions of the author and do not necessarily represent the opinion of the CT Freedom Alliance LLC or any other organization. Nothing within this post should be construed as legal advice. If you are in need of legal assistance, you should consult an attorney licensed to practice in your state of residence.
On August 6, 2020, an opinion piece appeared in USA Today titled, Defeat COVID-19 by requiring vaccination for all. It’s not un-American, it’s patriotic. As shocking as that headline may seem, the subtitle was even more jarring: Make vaccines free, don’t allow religious or personal objections, and create disincentives for those who refuse vaccines shown to be safe and effective. But perhaps most frightening of all is the fact that the majority of Americans support these measures.
One of our nation’s greatest Founding Fathers, Benjamin Franklin, is famously quoted as saying, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” While Franklin was not speaking of vaccine mandates at the time, these words could not be more applicable to the American vaccination program and the coordinated campaign deployed by the pharmaceutical industry to eliminate religious (and, for all intents and purposes, medical) exemptions to vaccinations in every state in the union. For the last decade, and especially within the last five years, Democrat-controlled state legislatures in California, New York, New Jersey, Maine, Massachusetts, Washington, Oregon, Colorado, and several other states have introduced legislation, with varying degrees of success, to eliminate exemptions to mandatory vaccinations for schoolchildren.
As if making forced injection of a foreign substance a prerequisite to a child receiving an education weren’t disgusting enough, the COVID-19 p(l)andemic has exposed the end game that many have long suspected, but never could prove, was there all along: forced vaccination as a prerequisite for every aspect of daily life, from employment, to higher education, to obtaining a driver’s license, to buying groceries. Don’t believe it? Then you obviously haven’t read the above-referenced opinion piece:
How can government and society ensure compliance with protective vaccines?
Vaccine refusers could lose tax credits or be denied nonessential government benefits. Health insurers could levy higher premiums for those who by refusing immunization place themselves and others at risk, as is the case for smokers. Private businesses could refuse to employ or serve unvaccinated individuals. Schools could refuse to allow unimmunized children to attend classes. Public and commercial transit companies — airlines, trains and buses — could exclude refusers. Public and private auditoriums could require evidence of immunization for entry.
The authors–three professors from Case Western Reserve University, including a physician, an attorney, and a bioethicist–propose that religious exemptions should never be honored, because “the major religions do not officially oppose vaccinations.” While this statement is patently false (this notion was thoroughly debunked at the religious freedom conference hosted by the CT Freedom Alliance in February of this year), the larger issue the authors (no doubt willfully) fail to mention is that it would be irrelevant even if it were true. The religious protections recorded in the United States Constitution have never been interpreted by the United States Supreme Court (or any other federal court, to my knowledge), to extend only to the “major religions.” The purpose of the First Amendment’s Establishment Clause is to prohibit government from making laws that favor one religion over another. Disallowing religious exemptions on the basis that the beliefs upon which they are founded are not within the sphere of theology contained in the “major religions” would seem to me to be very clearly an unconstitutional motivation for such a restriction, and would almost certainly be a denial of the equal protection of the laws in violation of the Fourteenth Amendment. If only the beliefs of the children and parents belonging to the “major religions” are honored, it is hard to see how that would not be a denial of equal protection.
The authors further propose the institution of an immunization registry and “immunization certification cards” complete with stamped expiration dates. Although they admit that such measures “might seem draconian,” they dismiss it as a “negligible sacrifice.” Since when is the denial of the most basic human rights a “negligible sacrifice”? Were the authors’ vision to become reality–and there is a very distinct possibility that it may–that is precisely what would be sacrificed if one failed to comply with a COVID-19 vaccine mandate. Access to food, employment, education, housing, and health care are all human rights. And they would all be eliminated for those who refuse, even on the basis of sincerely-held religious beliefs, to submit to these forced vaccinations.
Compounding the brutishness of this proposal is the suggestion that these violations of bodily autonomy would have to be repeated with “periodic booster” shots. This is the reason for the expiration dates on the cards every man, woman, and child would be required to carry as proof that they are “clean” and–even more important for those in positions of power–compliant. After all, this proposal really has nothing at all to do with public health. It has nothing to do with protecting the “herd” or saving lives. It has everything to do with supreme control and manipulation.
Refusing a person food because they hold dear to their religious beliefs is inhumane. It should be criminal. But three professors at Case Western Reserve University think it is “patriotic.”
There are certain times in your life when you just have to say it. Wake me up. This isn’t real. Is this a joke? All of these reactions (and more, which for the sake of our younger readers, I won’t include here) most certainly apply to the news this week that some states are recommending COVID-19 and influenza vaccine mandates that would apply not only to certain high-risk individuals or–as in the past–children enrolled in school, but to all residents. That’s right. Everyone.
As reported by Patch.com,
Gov. Ned Lamont on Wednesday released a “Roadmap for Reopening” that includes more detail about the second phase of the state’s easing of restrictions following the coronavirus outbreak — and a tease for phase three.
The 43-page report was prepared with input from state agencies and departments, legislators, and experts from the Reopen CT Advisory Group.
… According to the report, the state plans to “implement efforts” to immunize every resident who does not have a contraindication to the influenza vaccine. “The likelihood of a COVID-19 resurgence is high even in the optimistic scenario,” the report states.
WTF??? Even those among us who view vaccines in a mostly favorable light would not be comfortable being mandated to receive a vaccine that has (even in a really good year) an efficacy rate of less than 50 percent, and sometimes less than 20 percent (see https://www.nvic.org/vaccines-and-diseases/influenza/vaccine-effectiveness.aspx). And, more importantly, what does any of this have to do with COVID-19? Despite what some pharma shills have suggested, there is absolutely no credible scientific evidence to suggest that getting a flu shot protects you in any way from contracting COVID-19, or from getting seriously ill or dying from the virus. Truth be told, there is compelling evidence that receiving a flu shot may actually increase the risk of contracting other respiratory virus infections (see https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3404712/).
According to its announcement, the NYSBA relied on Jacobson v. Massachusetts, 197 U.S. 11 (1905) to support its recommendation:
The Health Law Section said a rapid mass vaccination plan should be launched in New York as soon as a safe and viable vaccine becomes available, citing Jacobson v. Massachusetts, a 1905 U.S. Supreme Court case that upheld the authority of states to enforce compulsory vaccination laws. The plan should also prioritize vaccines for essential health care workers and vulnerable New Yorkers who are at highest risk of infection, the report states.
But did Jacobson really authorize such a measure? There is no “safe and viable” vaccine available at present, and all indications are that there will likely not be one available before the end of the year, if ever. It is true that the Supreme Court in Jacobson held that the police power of the state permitted a compulsory vaccination order to protect the health and safety of citizens during an outbreak, in that case a smallpox epidemic in the city of Cambridge, Massachusetts. But Jacobson did not hold that the state may mandate vaccinations everywhere and always in a state, regardless of whether any outbreak exists in all parts of the state.
Any lawyer worth his salt knows that judicial precedent, even that which is contrary to your position, should not be viewed as an impediment to success on the merits of your case. A lawyer’s job is to distinguish the facts of the precedent so as to illustrate that it does not apply in the present case. That is exactly what can be done, I think quite easily, here. A vaccination mandate that applied to “all New Yorkers” would be nothing like the mandate in Jacobson, which applied to only one city during an outbreak in that particular locus (the state law “required the inhabitants of a city or town to be vaccinated only when, in the opinion of the Board of Health, that was necessary for the public health or the public safety.” Jacobson v. Massachusetts, 197 U.S. 11, 27 ). To extend Jacobson to stand for the proposition that a vaccine can be mandated throughout an entire state, even when there is no active outbreak in many parts (or most) of the state, would be ludicrous.
Indeed, the Jacobson Court said as much: “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.” Id. at 25. (Emphasis added; citation omitted.) Could a vaccine mandate that applies to areas where no public health threat exists really be considered “reasonable”?
And consider the following from the same decision, which directly follows the above quote:
It is equally true that the State may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. 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 actingunder the sanction of state legislation, shall contravene the Constitution of the United States or infringe any right granted or secured by that instrument. A local enactment or regulation, even if based on the acknowledged police power of a State, must always yield in case of conflict with the exercise by the General Government of any power it possesses under the Constitution, or with any right which that instrument gives or secures.
Id. (Emphasis added; citations omitted.) While it is true that the Court made clear that the right to liberty is not absolute and is constrained insofar as it subjects others to a threat of harm, the Court concluded its decision with a stern warning, one that is oft-overlooked (in many cases, purposefully) when the case is cited in support of vaccine mandates or other instances of extreme government overreach:
Before closing this opinion we deem it appropriate, in order to prevent misapprehension as to our views, to observe — perhaps to repeat a thought already sufficiently expressed, namely — that 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. Extreme cases can be readily suggested.
Id. at 38. While the Court went on to provide the example of a person who is forced to be vaccinated against his will despite a known medical aversion to vaccination, it is, I think, an equally extreme measure for a state to enact a vaccine mandate for every citizen in the state, regardless of whether an active outbreak currently exists in the region in which the person resides. Of course proponents of such a mandate will argue that compulsory vaccination is necessary to protect against future outbreaks, despite the fact that the there is absolutely no evidence that an outbreak will ever occur in every corner of the state. Cambridge did not issue a mandate based on speculation; many people were dying of smallpox in that city and it enacted the mandate as a means of preventing further spread of the virus (whether it was effective in doing so, of course, is up for debate). What New York and Connecticut have proposed are mandates for all citizens regardless of whether any outbreak exists in their city/town, and regardless of whether significant numbers of individuals are dying from the virus. This is particularly laughable with regard to Connecticut’s proposed flu vaccine mandate. The flu was no deadlier this year than it has been in any other year, and one could easily argue that it was less so. As of April 11, 2020, the total number of flu deaths in Connecticut during the 2019-20 flu season was 79, as compared to 87 in 2018-19, and 175 in 2017-18 (see https://portal.ct.gov/-/media/DPH/EEIP/FLU/thisweeksfluupdate.pdf?la=en). So clearly the justification for such an extreme dictatorial imposition is sorely lacking.
Governors and lawmakers, take heed. You were not elected to exploit crises for your own personal gain. You were elected to uphold the rights of the people as recorded in our state and federal constitutions, and you took an oath to do so. History will not look kindly upon your decision to ignore those rights in the name of public health or any other supposed justification for oppression. History aside, there will be even greater consequences for such actions in the near term. November is not so far away.
Yesterday (May 13, 2020) the Senate failed–by one vote–to pass an amendment to a bill reauthorizing a portion of the Patriot Act (Section 215) which permits the government to collect “any tangible thing” without a warrant. This includes not only books and paper documents, but also any electronic data, such as information collected from cell phones and internet browser histories. The amendment would have made it illegal for the government to access such electronic data without a warrant. If Section 215 is ultimately reauthorized without any such amendment, pundits posit, the government will be able to legally collect all of this electronic data from any individual without a warrant (i.e., regardless of whether there exists probable cause for believing that the person has committed a crime).
But is this really true? Does Congress have the authority to pass such a law? Sara Morrison, in an article for Vox.com regarding the failure of the privacy amendment to pass, seems to think so:
The vote was for an amendment to the controversial Patriot Act, which would have expressly forbidden internet browsing and history from what the government is allowed to collect through the approval of a secret court. Currently, there is no such provision, which means there’s nothing stopping the government from doing so. The government has an established history of using this method to collect certain types of data about millions of Americans without their knowledge.
But the fact that there is nothing in the Patriot Act to forbid the government from collecting this data, or the fact that it has been doing it for a long time, misses the point of the question regarding the legality of this practice. The only question that really needs to be answered is whether the U.S. Constitution allows the government to engage in warrantless data collection.
Both the Patriot Act and the Foreign Intelligence Surveillance Act (FISA) provide broad powers to the government to collect information from individuals without a warrant for the purpose of gathering foreign intelligence to combat espionage or terrorism. When the government is collecting the electronic data of non-resident aliens, it seems pretty clear that no warrant is required, since such persons generally are not entitled to Fourth Amendment protections. See United States v. Verdugo-Urquidez, 494 U.S. 259, 261 (1990) (holding that Fourth Amendment protection against unreasonable searches and seizures is not extended to nonresident aliens). But when the government is searching and seizing the property of citizens and legal residents of the United States, and there is no probable cause for believing that such individuals have engaged in any sort of criminal activity, the Fourth Amendment is (and should be respected as) a firm blockade against this kind of governmental intrusion.
Although lower federal courts have struck down portions of both the FISA and The Patriot Act, the United States Supreme Court has never done so. To put a finer point on it, no Fourth Amendment challenge to these laws has ever been heard by the Supreme Court. However, in 2018 the high court answered the question pretty clearly (in my opinion) in Carpenter v. United States, 138 S. Ct. 2206 (2018), a 5-4 decision penned by Chief Justice Roberts and joined by the Court’s four liberal justices. There, the government obtained the defendant’s historical cell-site location information (CSLI) from the defendant’s wireless carriers, without a warrant (CSLI is the time-stamped record of a phone’s location created each time the phone connects to a cell site). The Court ruled that the government’s data collection violated the Fourth Amendment because the acquisition of the information from the wireless carriers constituted a search. The Court stated that the defendant had “a reasonable expectation of privacy in the whole of his physical movements,” Id. at 2219, which is important because it underscores the point that our Fourth Amendment protections are not confined to our homes or businesses. To paraphrase the immortal Ralph Waldo Emerson, they go with us wherever we go (See Self-Reliance). The Court also expressly stated that the fact that the government got the data from third-party wireless carriers made no difference. In other words, the government cannot use a conduit to shield itself from the procedural mandate of the Fourth Amendment; ie., obtaining a warrant.
It is important to note that the Court made clear that its decision was narrow, and specifically stated that it did not apply to “other collection techniques involving foreign affairs or national security.” See Carpenter at 2220. So the decision clearly does not apply to searches and data collection obtained under FISA or The Patriot Act. But that’s fine, because that’s not what we’re talking about here. The question I presented in this article is not whether the government can spy on foreign individuals or persons plotting acts of terrorism. In such cases, however, one would think that it would be pretty easy to meet the low threshold required to show probable cause.
A notable exception, as repeatedly recognized by the Supreme Court (including in Carpenter) is when there are “exigent circumstances.” This means when there is an emergency and there is no time to obtain a warrant (think every action movie or TV show you’ve ever seen about police racing against the clock to find and disarm a bomb). But this too misses the mark. The question presented here is whether the government can collect electronic data from ordinary citizens who are not under investigation for terrorism or other criminal activity (you know, “just because”). The answer, in my opinion, is a resounding NO. Neither FISA nor the Patriot Act can be used as a “phishing expedition,” to see if someone may be engaging in criminal activity. It’s not supposed to work that way in this country. We don’t go looking unless we have reason to look. And mere curiosity is not a reason.
All of this has become even more important in light of the recent events surrounding the COVID-19 pandemic, which is being exploited to deploy a new system of “contact tracing,” essentially a new means of digitally tracking individuals who have tested positive for the virus or who have been exposed to it. The fear is that it will be used for much more than to simply protect public health, and that fear, I believe, is well-founded. It has been reported that Apple/Google/Samsung etc. will be automatically installing these contact tracing apps on our smartphones, and there will be no way to opt out without rendering the phone unusable. If that is true (and I don’t have sufficient verification to prove that it is, at least in all cases), then that would be horrendous, but not unconstitutional. There is nothing in the Constitution that prohibits private corporations from collecting data, only the government. If, however, this information is provided to the government without the consent of the users, I feel quite strongly that it would constitute a Fourth Amendment violation (remember that Carpenter said that you can’t get around the Fourth Amendment by simply getting the data from a third-party carrier).
If, however, there is an “opt in” notice that is clearly communicated to the smartphone user that explicitly states that the user consents to this data being shared with governmental entities, then the Fourth Amendment’s warrant requirement probably disappears. The police don’t need a warrant if you open the door and consent to them searching your house. So the lesson here is simple: just don’t open the door. But in an increasingly data-dependent world, keeping the door closed may not be so easy.
Over the past few weeks, several people have contacted me with stories of being refused entry at everywhere from Costco’s to doctor’s offices, simply because they refused to cover their faces with a piece of flimsy cloth, despite the fact that there is absolutely no science to support its use as an effective barrier to the transmission of the COVID-19 virus. In one case, a mother brought her seven year-old son, who is on the autism spectrum, to a critical eye doctor appointment. The doctor refused to see him unless he wore a mask. She explained that he cannot wear a mask due to his disability, but the doctor said there were no exceptions, and ordered them to leave.
In ordinary times, the Americans with Disabilities Act (ADA) would clearly prohibit the doctor’s behavior, despite the fact that the ADA has an exception which allows business owners to refuse entry or service to persons who pose a “direct threat to the health or safety of others.” The ADA Title III Technical Assistance Manual, which can be found here, does a good job of explaining it:
“A public accommodation may exclude an individual with a disability from participation in an activity, if that individual’s participation would result in a direct threat to the health or safety of others. The public accommodation must determine that there is a significant risk to others that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the public accommodation’s policies, practices, or procedures or by the provision of appropriate auxiliary aids or services. The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment that considers the particular activity and the actual abilities and disabilities of the individual.
The individual assessment must be based on reasonable judgment that relies on current medical evidence, or on the best available objective evidence, to determine —
1) The nature, duration, and severity of the risk;
2) The probability that the potential injury will actually occur; and
3) Whether reasonable modifications of policies, practices, or procedures will mitigate or eliminate the risk.
Such an inquiry is essential to protect individuals with disabilities from discrimination based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to legitimate concerns, such as the need to avoid exposing others to significant health and safety risks. Making this assessment will not usually require the services of a physician. Sources for medical knowledge include public health authorities, such as the U.S. Public Health Service, the Centers for Disease Control, and the National Institutes of Health, including the National Institute of Mental Health.” (Emphasis added.)
It seems pretty clear to me that the eye doctor in the above example did not perform the analysis above, required by the ADA. Instead, he just made an independent and immediate judgment that the child posed a threat simply because he was not wearing a mask because, he has decided, all persons who do not wear masks pose a direct threat to the health or safety of others. The problem for him, of course, is that the science does not support this assumption, and the ADA remains in effect even during this pandemic.
The problem for the mother and her son, however, is that during these highly uncertain times, when the fear of this virus has reached levels greater than anything we have seen in this country since polio in the 1940s and ’50s, most business owners are likely to get a pass in court. The fact that most public health officials, Governors, and mainstream media reporters are daily telling everyone that this is an extremely deadly virus and that wearing a mask is one of our only means of protection against it, would be enough, in my opinion, to satisfy most judges and juries that there was a reasonable basis for a business owner to conclude that a person who refuses to wear a mask posed a direct threat to the health or safety of others. It matters not that there is no actual science to support this; a business owner is not expected to be an expert in infectious diseases. The fact that so many authority figures are ubiquitously spreading the misinformation is enough to justify the business owner’s actions. For this reason, they would likely not conclude that the business owner’s fear was “unfounded.”
The one saving grace for the mother and her son in this example, however, is that this was a doctor who was refusing a critical medical treatment. In such a situation, courts may well view the situation with a heightened degree of scrutiny–especially, as here, when the victim of the discrimination is a seven year-old child with a disability. The safest (and most sensible) thing for any business owner to do, in my opinion, is to allow people who are not wearing masks to enter their facility, unless of course the patron/patient is very obviously ill and/or engaging in reckless behavior, like coughing or sneezing without covering their mouths and noses. The second-best approach would be for the business owner to print out the ADA guidelines I have quoted above, and to go through this analysis each time he or she attempts to exclude someone from the business. In that case, I would also recommend keeping a written record of the events that transpired, including proof that each step of the required ADA analysis was performed. The business owner or a designated employee should do this in each and every such situation, in the same manner, so that the records can be admitted if necessary in court as business records (an exception to the rules against the admission of hearsay). As you can see, this is much more cumbersome than just allowing the patron through the door. In the wise words of Sir Paul McCartney, just “Let ‘Em In.”
The contents of this post reflect the individual opinions of the author alone, and do not represent the opinions of the CT Freedom Alliance or any organization or person. Nothing contained herein should be construed as legal advice.
The case against bringing a case to challenge the executive orders of the COVID-19pandemic.
Over the past several weeks, several people have asked me why we can’t just file a lawsuit to get the Governor’s executive orders nullified, and go back to our normal lives. The executive orders are clearly unconstitutional, they argue, so why aren’t we doing this? The short answer is, to put it bluntly, that the courts disagree. For over 110 years, the United States Supreme Court and lower federal and state courts have repeatedly ruled that, when there is a compelling government interest (and protecting the public health is usually recognized to be one), the government can abrogate constitutional rights, so long as it is by the least restrictive means. There does not have to be a declared state of emergency for the government to do this. So even in ordinary times, this would be a very tough case to win. During a declared national and statewide public health emergency, it would be nearly impossible (I never say impossible, because courts are strange places, and every so often you get a unicorn decision – but even then, those decisions are almost always overturned on appeal).
The problem began with our favorite [insert sarcasm here] case, Jacobson v. Massachusetts, 197 U.S. 11 (1905). This single 1905 U.S. Supreme Court case – and its progeny – have wreaked utter havoc on individual liberties in the United States, at least during a declared public health crisis. The Second Circuit (the federal circuit which has jurisdiction over Connecticut) reaffirmed this fairly recently in Phillips v City of New York, 775 F.3d 538 (2015), a case issued on my 37th birthday, like a gift from someone who really, really doesn’t like me. You can see what I mean by this snippet:
Plaintiffs argue that New York’s mandatory vaccination requirement violates substantive due process. This argument is foreclosed by the Supreme Court’s decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). In that case, the plaintiff challenged Massachusetts’s compulsory vaccination law under the Fourteenth Amendment. The Supreme Court held that mandatory vaccination was within the State’s police power. Id. at 25–27; see Zucht v. King, 260 U.S. 174, 176 (1922) (“Jacobson ․ settled that it is within the police power of a state to provide for compulsory vaccination.”). The Court rejected the claim that the individual liberty guaranteed by the Constitution overcame the State’s judgment that mandatory vaccination was in the interest of the population as a whole. Jacobson, 197 U.S. at 38. Plaintiffs argue that a growing body of scientific evidence demonstrates that vaccines cause more harm to society than good, but as Jacobson made clear, that is a determination for the legislature, not the individual objectors. See id. at 37–38.5 Plaintiffs’ substantive due process challenge to the mandatory vaccination regime is therefore no more compelling than Jacobson’s was more than a century ago. See Caviezel v. Great Neck Pub. Schs., 500 F. App’x 16, 19 (2d Cir.2012) (summary order) (rejecting substantive due process challenge to vaccination mandate based on Jacobson ).
… New York could constitutionally require that all children be vaccinated in order to attend public school. New York law goes beyond what the Constitution requires by allowing an exemption for parents with genuine and sincere religious beliefs. Because the State could bar Phillips’s and Mendoza-Vaca’s children from school altogether, a fortiori, the State’s more limited exclusion during an outbreak of a vaccine-preventable disease is clearly constitutional. (Emphasis added.)
That last line is the one that would really drive the stake through the heart of any case challenging the executive orders issued during the present COVID-19 pandemic. During an outbreak, the Second Circuit has held, the state can close the schools to a certain class of persons, i.e. unvaccinated children. Let me write that again, this time in all caps. THE STATE CAN CLOSE THE SCHOOLS TO A CERTAIN CLASS OF PERSONS DURING AN OUTBREAK. This selective exclusion, despite the obvious equal protection problem it presents, is legal in our state according to the highest federal court in our circuit. If it is legal to exclude just one group of persons from schools during an outbreak, then I don’t see how a court would rule that it is illegal to exclude all personsequally from schools (and from places that do not have any state constitutional right tied to them, such as restaurants and movie theaters).
I realize that the issue here is not (yet) compulsory vaccination, and that COVID-19 is not a “vaccine-preventable disease” (neither is the measles, by the way, but I’ll leave that for another post). That last point actually makes the executive orders more stalwart, because if we don’t have a vaccine to “prevent” the illness, then the only option to achieve the government’s goal of stopping the spread is to shelter in place. And the same legal principles and precedent that govern the mandatory vaccination and religious exemption cases would undoubtedly also be applied to any lawsuit challenging the current executive orders. If the state has determined that “stay at home” – or even quarantine – orders are the best and most effective means of protecting public health during this declared public health emergency, the courts will say they can do it. I am nearly 100% confident in this outcome. For that reason, it is my opinion that the only hope to end a shutdown would be to get enough legislators to put pressure on the Governor to relax or rescind these orders. During a public health emergency, the Governor and President have vast and nearly unilateral power to abrogate constitutional rights, as repeatedly affirmed by the courts for over a century of jurisprudence. I could be wrong, of course, as I’m just a guy with a keyboard who happens to have a law degree. But all I’m saying is that I wouldn’t spend my money or time on legal challenges to executive orders while the pandemic persists in full force in Connecticut. Were these orders to remain in place even after the public health emergency declarations are rescinded, that would be an entirely different story. If that is the case, trust me, I’ll be the first in line at the courthouse!
There has been much talk over the last couple of weeks about the severe lack of personal protective equipment (PPE) for nurses, doctors, and other frontline health care workers tasked with saving lives during this COVID-19 pandemic. Connecticut is, unfortunately, locked in the epicenter of the outbreak, with more cases reported in the greater New York City area than anywhere else in the country. Whether the reporting is accurate I will save for another day, but few will argue that we are in the midst of a very serious public health crisis. And I believe that, once the truth is fully revealed, few will be able to argue that this is a crisis that could have been avoided (or at least significantly mitigated) had the officials responsible for protecting the public health done their jobs. Even the much-maligned New York Times admitted as much in a March 19, 2020 article, Before Virus Outbreak, a Cascade of Warnings Went Unheeded (https://www.nytimes.com/2020/03/19/us/politics/trump-coronavirus-outbreak.html), although predictably they used it as platform for attacking President Trump (I’ll spare you the time and summarize: Obama good, Trump bad, yawn). But what about local public health officials and Governors across the country, some of whom received direct warnings from federal and world health authorities in the wake of the 2014 Ebola outbreak in West Africa, and all of whom bear the ultimate responsibility for protecting the populations in their backyards?
This is where negligence comes in. In tort law, there are four elements one must prove in order to state a claim for negligence in civil court: 1) that the defendant owed a legal duty to the plaintiff, 2) that the defendant breached that duty, 3) that the plaintiff suffered an injury, and 4) that the defendant’s act or omission (failure to act) was the proximate (direct) cause of the injury. Proving that these elements are present does not automatically win your case; it simply means that you have stated a prima facie case that can survive dismissal on a motion for summary judgment. There are, of course, defenses that can be raised which, if proven, exempt the defendant from liability.
In the case of a public official, the primary defense that will likely be invoked is sovereign immunity. Sovereign immunity means that a government official can’t be sued for harm that results from official actions (acts performed within the scope of one’s official duties). The reason for this is simple: if everyone could sue every time something bad happened as a result of a government official’s actions or omissions, the courts would be clogged with nothing but suits against state offficials, and the officials would not be able to perform any of their duties, as they would be spending all of their time in court. Other important court business would also be neglected or extremely delayed. There is always going to be someone that is not happy with an official decision, or is in some way harmed by it. As the old saying goes, “You can’t please everyone.”
But what about when an official is grossly negligent to the point of dereliction of duty? What about when a public health official knew that something had to be done to protect the public health because of a clear and imminent threat, but deliberately chose not to take action? Well, there’s an exception for that. Connecticut’s sovereign immunity statute, C.G.S. Sec. 4-165, reads, in relevant part: “No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.” The bold type (added by me) are the key words here. A state official can be held personally liable for injury if his/her official act or failure to act was “wanton, reckless or malicious.”
Take, as an example, Connecticut Department of Public Health (DPH) Commissioner Renée Coleman-Mitchell (against whom, in the interest of full disclosure, I have a pending lawsuit that I will not comment on here). Even if it were proven that she knew that there was a strong possibility that the state would face a major pandemic in the near future, and made the decision not to purchase more PPE for healthcare workers, she could not be held personally liable unless it were proven that she failed to act because she was extremely careless (wanton, reckless) or was actually trying to harm the public (maliciousness). While I am confident that she was not trying to deliberately harm anyone, we would need more information to determine whether she was wanton or reckless. Did she fail to order the PPE simply because of a budget restriction, such that ordering extra PPE for the future would have meant she would not have been able to order other medical supplies that were more immediately necessary? In that case, her actions could not properly be characterized as wanton or reckless. If, however, she had the necessary funds but for no good reason just decided to ignore the warnings of federal health authorities, as well as her own staff, regarding the urgent necessity of ordering more PPE, that may very well be a different story.
The only way we can know, of course, is through a Freedom of Information Act (FOIA) request. I would strongly encourage all of you to immediately submit such a request to the DPH. Ask for any and all communications containing the words “personal protective equipment” or “PPE” sent or received by the present or former DPH Commissioner from January 1, 2014 through March 31, 2020. That should give you a good starting point.