Employers and the federal government are adopting mandatory vaccination policies. In New York City, clubs and restaurants are checking vaccine cards. Medicare will now require nursing homes to vaccinate staff.
Many employers, hospitals, and universities throughout the country are mandating vaccination.
No legal challenge in the courts has been successful. Why? The basic difference in views between judges and anti-Vax activists is the fundamental difference as to whether getting the “jab” is simply a personal choice or whether it has an impact on the broader community.
Opponents of mandatory vaccination frame the issue as one of liberty for the unvaccinated. Those arguments are well known and deeply felt.
Mississippi provides a current counterexample. It turns out that when most of the people aren’t vaccinated, the only way to prevent the health care system from failing is to impose the greatest restrictions on liberty in the country. Hence, Mississippi is imposing China-like fines and jail for infected people who refuse to stay at home. What could be more un-American?
Why is there such a difference in views?
Many Americans never accepted the theory of natural selection (evolution) as science, and so of course they did not anticipate the virus would mutate. Therefore, they could not anticipate that the more prevalent the virus among the unvaccinated population, the greater the danger of a virus emerging that would be more successful at invading human bodies and reproducing— even in the bodies of the vaccinated.
Judges, who listen to public health experts, believe that unvaccinated people pose a threat to the community by breeding large numbers of mutated viruses.
The counterargument is that Delta developed in India and any other variant would inevitably develop in other countries and spread here. The question then is whether vaccination would prevent the spread or seriousness of disease of a particular variant. The public health consensus is that it would, and the differential hospitalization rates between the vaccinated and the unvaccinated provide evidence to support that view. On the other hand, vaccinated people are clearly getting Delta in rates much greater than anticipated and with large viral loads that foster transmission.
But for now, court challenges to vaccination are failing. Vaccine opponents have therefore wisely chosen the political route.
Legislatures are different from judges. Many states have passed laws that restrict the right of school districts and employers to ban vaccination actions. Michigan House Bill 4471 would make it unlawful for employers to mandate vaccination.
The bill has not yet passed the House, and I expect significant opposition from the business and medical and insurance lobbyists. If it passes the House, it may die in the Senate. Either way, I would expect Governor Whitmer to veto it.
But what if HB 4471 passes? I think that business groups may sue to block the law from taking effect because it violates the equal protection rights of employers and vaccinated employees. The argument is that such a law has no “rational basis”. Very few state laws have been stricken by the courts on the rational basis test in the past 65. In 1955, the Supreme Court handed down Williamson v Lee Optical, a decision that creates the rational basis test that protects most state laws from equal protection legal challenges.
HB 4471 and similar bills in other states invite such a challenge. The politics of prohibiting mandatory vaccination may resuscitate equal protection law.
Click here to read the story “Mississippi Orders Isolation Amid ‘Stagggering’ COVID Case Count”, August 20, 2021, in The Daily Beast.