University of Houston Medical Ethics & Law Professor Valerie Guttman Koch conveniently left out the fact that the 1905 Jacobsen case did not force the vaccination. It was just the power to levy a $5 ($150 in current dollars) fine. Professor Guttman Koch also dismissed all of the cases which severely restricted and narrowed the Jacobsen case value down significantly.
Furthermore, the Individual body is protected under the inalienable rights of the sanctity of the individual, per US Constitution. The CDC has no authority to subvert the sovereignty of the US Constitution.
I really have nothing left to say after learning more about all the disturbing things this group of scientists, policymakers and lawyers have in store for us. I will revisit this lecture at a later time, but right now I am utterly disgusted and depleted. It is terrifying, and worrisome regarding the way these people spoke of the unvaccinated.
As a general rule, it has long been accepted that states have the authority to mandate the vaccination of their citizens, and, in fact, most states do have laws requiring certain vaccinations.
Before the beginning of the COVID-19 pandemic, all 50 states had laws requiring children to receive certain vaccinations before attending public school, although some states have more extensive religious and philosophical exceptions to these rules. And in the context of COVID-19, according to the American Bar Association, “as of November 10, 2021, 22 states had implemented COVID-19-related vaccine mandates impacting the employment of healthcare workers,[4] public employees,[5] school volunteers,[6] and some public contractors (depending on the state).”[7]
Among the rights afforded by the U.S. Constitution are rights to due process and equal protection.[8] If a citizen believes that a law violates her rights under the 14th Amendment, a court will evaluate and determine whether, in passing the law, the state has a legitimate policy interest. The court will decide (1) whether there exists a nexus between the policy goal and the policy outcomes and (2) whether a fundamental right is implicated by the policy. If the interest of a protected class is implicated (i.e., if a law unfairly discriminates against a protected class), government regulation will be subject to a higher level of scrutiny. In other words, rules promulgated to protect public health must respect the constitutionally protected right of equal protection under the law, which would protect “suspect” classes from discrimination. There are four suspect classifications: race, religion, national origin, and alienage/citizenship. All of these groups have historically been subject to discrimination.
Declaring the Unvaccinated a Suspect or Protected Class
Against this backdrop, opponents of mandatory vaccination have presented a rather novel argument, positioning anti-vaccine sentiments within a constitutional and civil rights framework. They argue that their choice not to be vaccinated qualifies them as a suspect or protected class. This effort may be distinguished from current federal and state rules that legally require exemptions from vaccine mandates due to medical reasons, religion, pregnancy, or disability. Rather, it is argued that policies that, for example, allow vaccinated individuals to enter businesses or places of public accommodation, allow vaccinated employees not to take COVID-19 tests on a regular basis, provide extra sick time to vaccinated employees, or otherwise grant those who are vaccinated preferential treatment, are discriminatory against those who refuse vaccination. This argument attempts to equate unvaccinated individuals with those who have been historically disadvantaged and are protected by the Constitution or federal and state civil rights laws.
In response to state or local laws that rely on governments’ policy powers to mandate the vaccination of its citizens, arguments to declare the unvaccinated as a suspect class situate the rights of those who refuse vaccination within a constitutional framework. If efforts to classify unvaccinated individuals as a suspect class succeed, state regulations seeking to control the spread of COVID-19, or other vaccine-preventable diseases, by mandating vaccines for its citizens would be subject to the highest level of scrutiny. Regulations that discriminate against a suspect class will only be upheld if the law furthers a compelling government interest and ensures the legislature/agency/government narrowly tailored the law to accomplish that interest.[23] Under an equal protection clause analysis, without implicating a suspect class, public health laws do not violate individual liberties, because they further a legitimate government interest in protecting health, and there is a rational basis for differential treatment.[24] In other words, such emergency orders bear a rational relationship to the legislative goal of protecting the public.[25] However, when public health laws are “applied more harshly against members of racial and ethnic minority groups and other socially vulnerable groups than others,” and the “differential treatment of protected groups is explicit in the law or can be proved intentional, the court will intercede”[26] by limiting or striking down those laws.
With regard to civil rights laws and efforts to define those who refuse vaccination as a protected class, state laws may extend anti-discrimination protections to other categories of individuals beyond those afforded in federal statutes. Under existing civil rights laws, employees may remain unvaccinated if they belong to a protected class (including religion, pregnancy, or disability status). However, in the absence of state anti-discrimination laws designating individuals who refuse vaccination as a protected class, such individuals are at-will employees who may be terminated for violating employer policy. For example, in late 2021, a group of 39 employees who failed to comply with their employer’s vaccine mandate attempted to bring suit. In Hayes v. University Health Shreveport, LLC,[27] an employer notified all employees that they were required to be fully vaccinated against COVID-19 by October 29, 2021. Employees not vaccinated within the specified time were subject to disciplinary action, including mandatory use of leave time and, ultimately, termination. The employer’s policy included exemptions for valid religious and medical reasons. The employees challenged this policy, and at trial, the court observed, “the employees and employer’s employment at-will is just that. [The employer] can fire them [e]xcept if it’s based on a protected class such as sex or race.” On appeal, the Supreme Court of Louisiana held that no exception to this state’s at-will employment doctrine applied.
Using language similar to that of existing civil rights laws, efforts to declare the unvaccinated as a protected class tie vaccination status to one’s innate identity. These efforts signify a significant step in the anti-vaccine movement. If enacted, state and local anti-discrimination ordinances may impose broader obligations on employers to provide exemptions from vaccine policies. For example, state legislatures, including the Texas Legislature, have begun to take steps to enshrine these arguments in statute. The 87th session of the Texas Legislature saw various “vaccine anti-discrimination” bills. In May 2021, Senator Bob Hall introduced S.B. 1669, in order to prevent “discrimination and mandates regarding immunizations [that] take place as a result of the COVID-19 pandemic.”[28] The bill would: (1) prohibit discrimination against individuals based on their immunity status and (2) prohibit vaccine mandates of any kind, both governmental and private. While the bill does not refer to those who refuse vaccination as a protected class, it does extend statutory protections for those who are not vaccinated. The bill would extend these protections to all children, eliminating any vaccine requirements — including those that previously existed — for attending public schools in the state. Similarly, Representative Candy Noble and colleagues in the Texas House of Representatives introduced H.B. 39, which would prohibit employer discrimination against those who choose not to receive the COVID-19 vaccine.[29]
In October 2021, S.B. 51, introduced by Senator Bryan Hughes, failed to pass before the Texas Legislature adjourned its third special legislative session. The law would have made any entity, including hospitals, vulnerable to discrimination lawsuits if they mandated vaccinations for all employees. Another Republican, Senator Bryan Seliger, called the bill “anti-business,” observing, “I’ve got some real reservations because I think it’s another example of big government … And we don’t do that.”[30]
Other states have introduced “vaccine anti-discrimination” legislation that would protect individuals who choose not to receive a COVID-19 vaccine (Figure 2). For example, in November 2021, Tennessee passed a law that prohibits businesses, governments, and schools from taking “adverse action” against anyone who has refused a COVID-19 vaccination for any reason.[31] Specifically, it prohibits employers from “discharg[ing], threaten[ing], or otherwise discriminat[ing] against” the employee “in any manner that affects the employee’s employment due to failure to provide proof of vaccination.”
Figure 2 — States with Vaccine Anti-Discrimination Bills Proposed and Passed
Likewise, in 2021, Virginia introduced a bill that “prohibits discrimination based on a person’s vaccination status with respect to any COVID-19 vaccine (i) with regard to education, employment, insurance, or issuance of a driver’s license or other state identification or (ii) in numerous other contexts.”[32] Utah has two bills slated to be considered in 2022 that are intended to “protect vaccine-hesitant Utahns from discrimination in the workplace or community.”[33] One of the bills would add “immunity status” to the list of protected groups under state anti-discrimination laws (which currently includes race, color, religion, ancestry, national origin, and pregnancy).[34]
In 2021 and 2022, bills have been introduced in many other states to prohibit discrimination based on vaccination status, including Alaska,[35] Arizona,[36] Colorado,[37] Florida,[38] Hawaii,[39] Indiana,[40]Kentucky,[41] Louisiana,[42] Minnesota,[43] Missouri,[44] New Hampshire,[45] New Jersey,[46] Ohio,[47]Oklahoma,[48] Pennsylvania,[49] Rhode Island,[50] South Carolina,[51] and Wyoming.[52] Beyond proposals that specifically ban discrimination on the basis of vaccine status, during 2021 state legislative sessions, a vast majority of states also proposed (and many passed) laws to protect individuals from private employer vaccine mandates[53] and vaccine “passports.”[54] In October 2021, Texas became only the second state to prohibit “any entity” — private or otherwise — from “compelling” vaccinations for employees or consumers.[55]Governor Abbott’s executive order GA-40 also declared that it is likely that the majority of such cases would not result in the employee’s disqualification from employment insurance benefits.
However, no state has yet gone as far as Montana, which passed H.B. 702 in May 2021. The law prohibits “a person or a governmental entity to refuse, withhold from, or deny to a person any local or state services, goods, facilities, advantages, privileges, licensing, educational opportunities, health care access, or employment opportunities based on the person’s vaccination status,”[56] with exemptions for nursing homes and long-term care and assisted-living facilities. It also specifically forbids any employer — private or governmental — from requiring employees to be vaccinated. In other words, it puts an employee’s vaccination status in the same category as race, sex, and religion when it comes to employment discrimination. This law impacts not only COVID-19 vaccine mandates, but all vaccines — including those required for public school enrollment. Violation of H.B. 702 is considered discrimination under the Montana Human Rights Act. In February 2022, a state judge upheld the law, writing that the law merely “prevents [the employer] from implementing the health and safety measure he wants, which is to treat vaccinated and unvaccinated individuals differently.”[57] That challenge to H.B. 702 is still in the appeals process, but in March 2022, a federal judge barred enforcement of the law for health care facilities, clinics, and private practitioners while the federal interim final rule mandating vaccination in such settings is in effect.
As recognized in that decision, laws that prohibit vaccine mandates may directly conflict with federal efforts to require vaccination of health care workers, federal employees, and others. For example, Biden’s executive order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” mandates vaccination specifically for employees of federal contractors. The nationwide injunction against this rule was lifted by a Georgia judge in August 2022, allowing the mandate to, by and large, go back into effect. Likewise, some argue that laws that forbid vaccine mandates wholesale are too expansive, and should at least exclude school and health care settings to protect the health of their patients. Medical facilities expressed concern that following the state law would lead to the loss of Medicare and Medicaid reimbursements for not following federal rules that mandate vaccination.[58] Further, rejection of school mandates will likely lead to increased outbreaks of vaccine-preventable diseases such as measles and whooping cough.
Implications for Vaccine Policy
Except in Montana, under current civil rights laws, vaccination status is still not a protected class. In most cases, protected class designations are premised on a person’s “immutable characteristics”[59] or inherent traits — those that are impossible or incredibly difficulty to change. Laws that prohibit against discrimination based on intrinsic differences, rather than mutable or changeable characteristics like political leanings and group associations, are necessary in order to protect individuals from unjust treatment. Legal scholars note that “antidiscrimination law has moved beyond immutability” with respect to characteristics like religion and sexual orientation on the grounds that “such characteristics are very difficult, as a practical matter, to change, or … are so fundamental to personhood that ‘it would be abhorrent for government to penalize a person for refusing to change them.’” In other words, it should be illegal to discriminate against a person based upon who they are as a person.
In contrast, one’s choice not to vaccinate is not, as a general rule, outside of one’s immediate control. Further, evidence shows that vaccine willingness is dynamic, and “opposition to vaccination is far from immutable.”[60],[61] While a plaintiff may be able to argue that an employer’s vaccine mandate results in a disparate impact by equating the failure to comply with the mandate to discrimination on the basis of gender or race, such an argument is likely to encounter high hurdles in light of past precedents.
Including vaccination status among the list of protected characteristics will render employer and other institutional efforts to require vaccination that much less likely to be upheld if challenged. Unlike existing anti-discrimination laws, extending civil rights protections to those who choose to refuse vaccination has a negative impact on others in the community — many of whom those existing laws are intended to protect. The American Civil Liberties Union (ACLU), whose mission is to protect civil liberties, has acknowledged that vaccine mandates are not one-size-fits-all. Rather, vaccine mandates are permissible under certain circumstances, which are all met in the case of COVID-19: “The disease is highly transmissible, serious and often lethal; the vaccines are safe and effective; and crucially there is no equally effective alternative available to protect public health.” In fact, the ACLU has argued that “[f]ar from compromising civil liberties, vaccine mandates actually further them.”[62] Rather than focusing on those who choose not to be vaccinated, the ACLU emphasizes that mandatory vaccination protects the most vulnerable in our communities, including individuals with disabilities, communities of color, and children too young to be vaccinated. The ACLU continues, “by inoculating people from the disease’s worst effects, the vaccines offer the promise of restoring to all of us our most basic liberties, eventually allowing us to return safely to life as we knew it, in schools and at houses of worship and political meetings, not to mention at restaurants, bars, and gatherings with family and friends.”
Jurisdictions that have proof-of-vaccination requirements, incentive payments, and employer-based vaccine mandates tend to have higher vaccination rates.[63] Conversely, the states that are driving the vaccine choice/anti-discrimination movement have the lowest vaccination rates. The politicization of vaccination efforts is largely responsible for this. Many politicians and policymakers have aligned themselves with those who refuse vaccination in order to build loyalty.[64],[65] Efforts to designate those who refuse vaccination as a protected class intentionally undermine the ability of institutions and governments to encourage vaccination — and are likely to result in even lower immunization rates.
In the context of prohibitions on employer vaccine mandates, laws that prohibit discrimination on the basis of vaccine status would tie employers’ hands, limiting their ability to keep employees and customers safe. As Lawrence Gostin, a law professor at Georgetown University Law Center, states, “[w]hen a legislature passes an anti-vaccine law, it sends a signal to businesses not to deploy any kind of vaccine system.”[66] Thus, designating those who refuse vaccination a protected class will have a deterrent effect on institutions, who are already struggling with identifying the most appropriate ways to provide reasonable accommodations to those who qualify under federal disability laws. Requiring accommodations for all employees who choose to reject vaccination, regardless of their circumstances, may overburden private employers and provide disincentives for vaccine mandates.[67]
Further, the implications could extend beyond the COVID-19 pandemic. For example, a bill that would apply to all immunizations — including childhood vaccines such as measles, mumps, hepatitis, meningitis and tuberculosis — was recently introduced in the Ohio Legislature.[68] Across the nation, immunizations for these highly infectious diseases are tied to school enrollment. Currently, “[t]he national vaccination effort is … dependent on partnerships with various institutions, like schools and employers, to encourage more people to get vaccinated.”[69] Efforts to designate the unvaccinated as a protected class may result in lower rates of vaccination, as parents will have fewer incentives to vaccinate their children.
In 2022, the United States has already seen the reemergence of the polio virus in addition to an outbreak of monkeypox, the latter of which has been declared a federal public health emergency.[70] Both diseases have safe and effective vaccines that have been proven to control the transmission of these dangerous viruses. However, if the unvaccinated become a protected class, the spread of such diseases is likely to escalate.
Vaccine mandates have historically been highly effective in schools, health care facilities, and the U.S. military. Beyond instituting policies to ensure vaccination, there are few, if any, alternatives to safeguard the health of the community. Laws that designate the unvaccinated as a protected class would thwart efforts to protect the public from other highly transmissible viruses. And, in fact, Montana’s H.B. 702 applies not just to COVID-19 vaccines, but all vaccines, including those that protect against measles and whooping cough.
Classifying unvaccinated individuals as a protected class is also legally inconsistent with the history of vaccine mandates. Mandatory vaccines are, by their nature, an intrusion into individual autonomy and bodily integrity. However, the right to individual autonomy is not absolute and may be limited in circumstances where individuals pose a risk to others. In the context of COVID-19, the risk of transmission and harm to others is great, particularly for at-risk individuals and communities. The Supreme Court held in 1905 that there are justifications for when such intrusions are necessary, and it is essential to continue to abide by this precedent.
Throughout the COVID-19 pandemic, citizens have used the legal system to enforce COVID-19 restrictions and, conversely, to argue against them.[71] Efforts to declare the unvaccinated a protected class are just one weapon in anti-vaccine advocates’ arsenal that could severely limit our ability to control highly transmissible and dangerous diseases. Countering these efforts will be a prolonged but necessary process to safeguard public health.
Well it's interesting that Pfizer just admitted a couple days ago that they never tested their vaccine to see if it would "slow the spread". They admitted - and a lot of research coming out now shows - that vaccinated people spread coronavirus just as much as unvaccinated people. Even further that many unvaccinated people are now immune and do not spread the virus at all.
The bottom line is if people want to try an experimental vaccine, that's their right to do so. And if other people want to wait and see what happens in a year or two, that's their right to do so.
No one should be "labeled" or discriminated against - that's like saying that people should be shunned because they take aspirin instead of tylenol.
Well it's interesting that Pfizer just admitted a couple days ago that they never tested their vaccine to see if it would "slow the spread". They admitted - and a lot of research coming out now shows - that vaccinated people spread coronavirus just as much as unvaccinated people. Even further that many unvaccinated people are now immune and do not spread the virus at all.
The bottom line is if people want to try an experimental vaccine, that's their right to do so. And if other people want to wait and see what happens in a year or two, that's their right to do so.
No one should be "labeled" or discriminated against - that's like saying that people should be shunned because they take aspirin instead of tylenol.