Living in a Parallel Universe

 

"The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person… But 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." 

Supreme Court Justice John Marshall Harlan, Jacobson vs Massachusetts (1905)

Red states are hitting COVID infection and mortality records. Some have such ICU overdemand that they now have official sanction to ration treatment options to accommodate patients they believe have the greatest chance of recovery. The rest? Well, we all have to go sometime. They might get a bed but not much else. Some may just plain be turned away. Blue Washington State is facing a massive influx from serious Delta variant COVID infection cases from unvaccinated patients from neighboring red Idaho. All this is happening primarily because getting vaccinated and wearing a mask have long since lost their scientific and medical significance. They are signs of rejection of the new Trumpian populist creed. And if a Democrat wants to adopt such practices, they simply cannot be good.

Even in blue Los Angeles, a group of Los Angeles police and firefighters are suing the city because of a recently imposed vaccine mandate for frontline first responders. Republican governors are joining forces to litigate in opposition to the recent Biden ordered vaccine mandates, claiming constitutional overreach. This notion of a constitutional right to reject a vaccine mandate as the nation faces an epidemic, or worse, a pandemic, was addressed over a century ago. “In 1901 a deadly smallpox epidemic tore through the Northeast, prompting the Boston and Cambridge boards of health to order the vaccination of all residents. But some refused to get the shot, claiming the vaccine order violated their personal liberties under the Constitution.

“One of those holdouts, a Swedish-born pastor named Henning Jacobson, took his anti-vaccine crusade all the way to the U.S. Supreme Court. The nation's top justices issued a landmark 1905 ruling [see above quote] that legitimized the government’s authority to ‘reasonably’ infringe upon personal freedoms during a public health crisis by issuing a fine to those who refused vaccination.” History.com. That 7-2 Supreme Court decision, Jacobsen vs Massachusetts, was reaffirmed in 1922 in Zucht v. King, in which Supreme Court upheld an order from the San Antonio, Texas school district that excluded students who had not been properly vaccinated. Then came polio.

The United States first really understood the risk of polio with FDR, who eventually succumbed to this disease. The disabling and potentially fatal disease, known as infantile paralysis because of its proclivity to infect young children, exploded in the 1950s, just as vaccines were being developed with organic popular support. Driven by massive publicity campaigns, such as the March of Dimes, school districts across the land, almost in lockstep, mandated that younger children be vaccinated to be enrolled. Nobody seemed to object. It was a popular movement, funded “one dime at a time.” 

COVID didn’t give the country time to develop that organic support. The virus hit hard, and it hit fast. The nation looked to government for support. Believing that strong measures would be pummel the stock market, the initial reaction from the President – one that generated a litany of “double downs” – was to marginalize the disease. Then as the numbers mounted, blame centered on China, but keeping that economic indicator, the stock market, strong began to create a schism between those seeking not to impair a “free market” (Republicans) against those who wanted a strong “war on COVID” response (Democrats). COVID was officially polarized. Even with a clear legal chain of precedent supporting direct governmental preventative measures, including mandatory vaccines, red states resurrected discredited theories of constitutional rights, while blue states slowly adopted more restrictive mask, social distancing, lockdowns and, later, mandatory vaccination. The stock market collapsed. Attitudes did not change. COVID was more politicized than ever.

But for those cities and states imposing restrictions, even where public opinion was supportive, it wasn’t a free ride. How these health mandates and limitations were applied became relevant. When a lockdown order focused on churches and prayer gatherings, the Supreme Court, ruled in the 2020 case of Roman Catholic Diocese Of Brooklyn, New York v. Andrew M. Cuomo that the governing authorities had crossed a constitutional line well beyond what the 1905 Jacobson ruling intended.   The 5-4 majority stressed that the principal flaw in the government order was while the lockdown laws barred religious gatherings altogether, secular businesses were still allowed to operate at limited capacity. 

The recent Biden imposed vaccine mandates, beyond federal workers and vendors, have drawn an expected wrath from elected Republicans. “Republican outrage is really boiling over his plan to require all private-sector businesses with more than 100 employees to mandate vaccines or weekly testing for their work forces.

“Gov. Greg Abbott of Texas called the president’s move ‘a power grab.’ Gov. Henry McMaster of South Carolina promised to fight Mr. Biden in court, to ‘the gates of hell.’ Gov. Greg Gianforte of Montana called it ‘unlawful and un-American.’ Gov. Kay Ivey of Alabama called the move ‘outrageous’ and ‘overreaching.’” New York Times, September 12th. On September 12th, House Republican Minority leader, Kevin Minority Leader released a three word, all caps. Tweet: “NO MASK MANDATES.” This was well beyond mere mask mandates down. The economy was beginning to sputter again as more Americans were suffering and dying. Almost all unvaccinated.

But all of these Republican positions, as hundreds of thousands of Americans have died (and are still dying) and millions have been infected, require a dramatic rejection of the 116-year-old Jacobson case that totally disavowed any notion that governmental measures to force reasonable preventive measures (including mandatory vaccinations) during medical emergencies violate any constitutional rights. Will a Trump-appointee-dominated Court be willing to reverse that decision? And be responsible for more suffering and death? I hope not.

I’m Peter Dekom, and the stubbornness and extremism inherent in what is unabashedly a Republican effort to vindicate a series of terrible decisions resulting in the politization of a medical disease is unethical, immoral and frankly disgusting.