COVID-19 and Flu Shot Mandates May Be On The Horizon, But Are They Legal?

States are considering vaccine mandates for all in the wake of the COVID-19 pandemic.

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/).

Continuing the trend, the Health Law Section of the New York State Bar Association (NYSBA) released a report this week proudly which recommended that “[a] COVID-19 vaccination should be mandatory for all New Yorkers except those whose doctors exempt them.” The recommendations of the report are expected to “be debated at a virtual meeting of the association’s governing body, the House of Delegates, on June 13.” See https://nysba.org/state-bar-associations-health-law-section-report-calls-for-mandatory-covid-19-vaccination-standards-for-allocating-ventilators-and-personal-protective-equipment/. The irony of that date being chosen for such a debate will not be lost on New Yorkers, who saw their religious exemption to vaccinations so cruelly stripped from them on the same date last year.

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 [1905]). 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 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. 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.

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