No US Legal Precedent for CV19 Vaccine Mandates

Harvey Risch and Gerard Bradley write at Brownstone Institute Covid-19 Vaccine Mandates Fail the Jacobson Test.  Excerpts in italics with my bolds and added images.

We are facing, in other words, questions about how best to integrate our perennial commitment to freedom with our equally long-standing concern for public health, in this time of crisis.

Americans are a freedom-loving lot. It is our founding ethos and we have defended it across the world on numerous occasions. At the same time, we have a strong tradition of social altruism and dedication to the common good, especially in times of crisis.

Now that the Covid-19 pandemic has been with us for close to two years and vaccines for almost one, we have learned that the vaccines work to a degree and that they have both known serious risks and theorized potential risks.

Over the last few months, Americans have been increasingly facing demands that they be vaccinated or revaccinated—from governments, schools, employers, shopkeepers, even relatives.

During the pandemic, the courts have rightly relied upon a century-old precedent of the Supreme Court in mandate cases, but they have gravely misunderstood and misapplied that precedent to uphold draconian and unjustified Covid-19 vaccine mandates.

At times of national emergency, government’s overriding goal must be to protect the population while removing the cause of the state of emergency. This means that certain laws, regulations, and policies may be temporarily suspended to accomplish these tasks. For example, if the army needs your car to transport soldiers to the front line, so be it. In particular, during the 1902 smallpox epidemic, the U.S. Supreme Court in Jacobson v. Massachusetts, 197 U.S. 11 (1905) ruled that the State of Massachusetts could compel residents to obtain free vaccination or revaccination against the infection, or suffer a penalty of $5 (about $150 today) for noncompliance.

In authoring the majority opinion in Jacobson, Justice John Marshall Harlan argued:

(1) that individual liberty does not allow people to act regardless of harm that could be caused to others;
(2) that the vaccination mandate was not shown to be arbitrary or oppressive;
(3) that vaccination was reasonably required for public safety; and
(4) that the defendant’s view that the smallpox vaccine was not safe or effective constituted a tiny minority medical opinion.

The Supreme Court in Jacobson repeatedly invoked the “common good” of the polity as the principle of sound constitutional thinking about the public health emergency of the day. Just so—then and now. The Court did not, however, equate the “common good” with a reflexive preference for some collective interest over each person’s rights, or with automatic deference to the latest asserted findings of “the science.”

In this context, for the government to assert that its constitutional obligations (as described in Jacobson, for example) are satisfied only “because a government agency says so” would be self-serving and wholly inadequate. Such reasoning would not satisfy the burden of proof; rather, the government would need to demonstrate the relevant, full, non-cherry-picked scientific evidence to make the case.

Now let’s consider the four criteria upon which Jacobson relied in deciding that the smallpox vaccine mandate in 1905 passed constitutional muster, and use them to evaluate today’s Covid-19 vaccine mandates.

(1) Individual liberty does not allow people to act regardless of harm that could be caused to others.

What seems apparent is that this criterion is addressing the compelling interest in limiting people from acting to spread the infection. In Constitutional law a “compelling interest” is a necessary or crucial action rather than a preferential one; for example, saving the lives of large numbers of people at risk.

In fact, the federal government has already set a de facto threshold for this level. Annually, approximately 500,000 Americans die from tobacco-related diseases. Yet, the federal government has never acted to curtail tobacco use in any meaningful way. This implies that 500,000 deaths per year is not large enough to trigger a compelling government interest.

Thus, it seems that any truly “compelling” interest can only apply to high-risk individuals, who are definable and comprise a small minority of the general population. Furthermore, the lives of such individuals can often be protected by known existing and available pharmacologic and monoclonal antibody interventions (see criterion (3) below), which means that there may be a less-than-compelling interest for universal vaccination even among them.

Additionally, we know now, and both Drs. Anthony Fauci and Rochelle Walensky have stated publicly, that fully vaccinated individuals can become infected and transmit the virus to others. A number of such outbreaks have occurred in diverse locales. Thus, there is no apparent compelling interest in mandating vaccination for low-risk individuals specifically in an attempt to reduce infection transmission to high-risk people—just as there is no compelling interest in mandating vaccination to reduce infection transmission to low-risk people.

Just to be clear, government compelling interest inheres in prevention of serious outcomes such as hospitalization and mortality. But we assert that that there is no such compelling interest in Covid-19 case occurrence. The overwhelming majority of cases recover.

Prevention of Covid-19 cases is at most a desirable policy goal and not a compelling interest.

As has become increasingly apparent, natural immunity following Covid-19 infection is stronger in repelling subsequent viral outbreaks than vaccine-based immunity. (Thus, prevention of Covid-19 case occurrence per se is actually counterproductive in ending the pandemic.)

(2) The vaccination mandate is not shown to be arbitrary or oppressive.

Covid-19 vaccine mandates imposed by the federal government and some state governments require vaccination by all adults except those requesting medical exemptions or religious exemptions. Criteria promulgated by the CDC for medical exemptions however are extremely limited, essentially involving only severe life-threatening allergic reactions as demonstrated from taking the first vaccination of the two-dose mRNA series. Religious exemption requests appear to have met variously capricious responses by vaccine mandate reviewers, and some states have prohibited religious exemptions altogether, in violation of (as Justices Gorsuch, Thomas, and Alito argued and as we would maintain) constitutional guarantees of religious liberty.

The one quite irrational consideration of all vaccination mandates to date is that the mandates ignore people who have had Covid-19 and thus have natural immunity. There are now more than 130 studies demonstrating the strength, durability and wide spectrum of natural immunity particularly versus vaccine immunity.

Some arguments have been put forward asserting that antibody levels may be higher in vaccinated people than people recovered from Covid-19, but antibody levels per se do not translate into degree of immunity. Antibody levels in vaccinated people decline appreciably starting at four months post-vaccination, whereas antibody levels in Covid-19 recovered stay roughly constant during those months. Other assertions have been that asymptomatic or mild Covid-19 infections may not produce strong natural immunity; however, these claims have been shown to be scientifically unfounded. Empirical population studies on reinfection/breakthrough infection demonstrate that natural immunity is as strong or stronger than vaccine immunity.

Finally, natural immunity can be documented by having ever had a positive Covid-19 PCR, antibody or T cell test, regardless of current status of those tests.

Similarly, Covid-19 vaccine mandates for children are unwarranted because children almost entirely get infected from their parents or other adults in the household, and infrequently transmit the infection to their classmates, teachers or uninfected household adults.

Normal healthy children do not die from Covid-19, and the 33 children aged 5-11 years estimated by the CDC to have died from Covid-19 between October 3, 2020 and October 2, 2021 all had chronic conditions like diabetes, obesity, being immunocompromised (e.g., after cancer treatment) that put them at high risk, and even these numbers are much lower than childhood deaths from traffic and pedestrian accidents, or even being hit by lightning. Covid-19 in children is almost entirely an asymptomatic or mild disease typified by fever and tiredness and resolves on its own in 2-3 days of rest. Thus, vaccine mandates for children are unwarranted.

In sum, a policy requiring vaccination of people who are either already immune or of no consequence either for their own health or for spreading the infection is arbitrary. It is oppressive in inflicting a medical procedure on people who do not need it for themselves or for others. Such a policy would even fail the “rational basis” test which so many courts have applied perfunctorily.

(3) Vaccination is reasonably required for public safety.

Vaccination in theory prevents personal infection and disease, as well as transmission of infection to others. The government’s interest is almost entirely in the latter. We now know that the Covid-19 vaccines in the real world don’t prevent transmission all that well.

Further, public safety is enhanced by use of medications for early outpatient treatment that safely allow increase in population natural immunity. An extensive body of studies has accumulated over the last 18 months showing that various approved but off-label medications dramatically reduce risks of Covid-19 hospitalization and mortality when started in ambulatory patients within the first five days or so of symptom onset.

Meta-analyses of hospitalization and mortality risks calculated by the first author are shown in the figures on the next page for two drugs, hydroxychloroquine and ivermectin. Additional thorough discussion of standards of evidence of randomized and nonrandomized drug trials, as well as on a number of small trials that failed in the adequacy of their study designs and executions, is posted here. These analyses show that numerous drugs and monoclonal antibodies are available to treat ambulatory patients with Covid-19 successfully, making vaccination a choice for dealing with the pandemic, but not a necessity.

(4) The vaccine has a long popular, medical, and legal history of being regarded as safe and effective.

This criterion decisively distinguishes Jacobson and the smallpox vaccine mandate from what is happening today. Jacobson did not accept dissenting testimony about vaccine safety or efficacy because the vaccine at that time had been a staple in society for almost 100 years.

The genetic Covid-19 vaccines have no such information, have every indication that they are orders of magnitude more harmful, and even the FDA still classifies all three in use in the US as experimental, which means that their EUA designations have only required showing that they may convey some benefit and need not be harm-free, i.e., have not been established as safe and effective, let alone known as such for decades or longer.

According to the VAERS database, to date some 19,000 deaths have been associated with the Covid-19 vaccines, of which more than one-third occurred within three days of vaccination. In this one year of Covid-19 vaccination, this number is more than double the number of deaths from all other vaccines over more than 30 years combined in the VAERS data. It is also more than 150 times the mortality risk of smallpox vaccination, 0.8 per million vaccines (Aragón et al., 2003).

The VAERS database also identifies more than 200,000 serious or life-threatening non-death events to date, and this number is almost certainly at least 10-fold undercounted because of the work, difficulty, impediments and lack of general knowledge involved in filing adverse event reports in the VAERS system. Many of these adverse events portend lifelong serious disabilities. But two million serious or life-threatening events is well more than the damage that would have been caused by even untreated Covid-19 occurrence in the same 200 million vaccinated Americans, especially given that two-thirds of them have strong natural immunity from having had asymptomatic or symptomatic Covid-19.

These numbers indicate that these severe events caused by the vaccines very likely outnumber serious Covid-19 outcomes that would have occurred in the same individuals had they not been vaccinated. As well, those numbers would be dramatically lower with general availability of the suppressed but effective treatment medications for early ambulatory patient use.

With regard to efficacy, the three US Covid-19 vaccines showed great promise in their original randomized trials results. However, as these vaccines have been rolled out in hundreds of millions of doses to the general public in the “real world,” their performance has differed from what was originally described.

Thus, if vaccination were to be the only method of combating the pandemic, it appears that vaccinations repeated indefinitely at 6-month intervals would be required, and even that may not be all that successful in reducing spread substantially. There are no vaccination programs for other general diseases in the US that require such a high frequency of compliance. Even influenza, which has a substantial annual mortality, has an annual revaccination frequency, is only perhaps 50% effective over the flu season, is not mandated.

A careful reading of Jacobson shows that it is not just an automatic consideration allowing the government to do what it wants when a pandemic emergency has been officially declared. In a pandemic, courts look to Jacobson for precedent as an apparent direct fit, but even so must evaluate the evidence for satisfying all of the Jacobson criteria.

As we have shown, Covid-19 vaccine mandates do not satisfy any of the required criteria in Jacobson, let alone all of them.

The question to be addressed then is why a pandemic infection with approximately 1/20th the natural mortality risk of the previous smallpox pandemic would be subject to the grievous penalties of loss of employment, loss of medical care, loss of necessary activities of daily life, and mandate of vaccines that unlike in the previous pandemic have no long-term safety data. Given that none of the Jacobson criteria have been met, the infringements and demands of the government and its public health agencies have not been justified according to law. This is the argument that must be made as to why the proposed vaccine mandate is an unwarranted overreach inconsistent with established public health policy and law.



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