The autocratic power assumed by the government during the COVID crisis has had the same effect on technocrats that blood in the water does to sharks: They are in a feeding frenzy. Their latest hoped-for power grab is to have the federal or state governments force us all to be inoculated against COVID.
Such calls are ubiquitous. Editorializing that “there is no absolute right to refuse vaccination,” the Los Angeles Times argued, “No one has the right to sicken anyone else or start a new spike in cases through carelessness or their own sense of ‘personal choice.’”
The most influential advocate for vaccine mandates has been bioethicist Ezekiel Emanuel—a prime architect of the Affordable Care Act—who wrote recently in a co-authored New York Times piece: “We need to sharply reduce coronavirus infections to turn the tide and quell the pandemic. The best hope is to maximize the number of people vaccinated, especially among those who interact with many others and are likely to transmit the virus. How can we increase vaccinations? Mandates.”
The authors’ litany of people who should be required to receive the jab is long, including “prison guards, E.M.T.s, police officers, firefighters and teachers,” as well as all healthcare workers and students.
They write: “None of us likes being told what to do. But getting vaccinated is not just about our personal health, but the health of our communities and country.”
Harvard law professor emeritus, Alan Dershowitz, took this hysteria to a ludicrous conclusion, stating in a streamed interview last summer: “Let me put it very clearly: you have no constitutional right to endanger the public and spread the disease, even if you disagree. You have no right not to be vaccinated .… And if you refuse to be vaccinated, the state has the power to literally take you to a doctor’s office and plunge a needle into your arm.”
Okay, let’s calm down and get real. Under federal law, the government cannot now force anyone to take the COVID vaccine. Why? The vaccines only received an “emergency use” authorization, a different category altogether than usual medicinal approvals.
As the FDA Website explains: “FDA may authorize unapproved medical products … in an emergency to diagnose, treat, or prevent serious or life-threatening diseases or conditions … when certain criteria are met, including there are no adequate, approved, and available alternatives.”
That was precisely the dire situation the country faced last spring when President Trump wisely launched Operation Warp Speed that successfully brought vaccines into the clinical setting in record time. But here’s the thing: The distinction between a normally approved vaccine and one approved for emergency use is a distinction with a huge difference.
You see, the law that created the power of the FDA to issue such emergency approvals also provides that patients cannot be required to receive the treatment. Specifically, the law states that (my emphasis) “individuals to whom the product is administered are informed … of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.”
Oops. If we have the legal right “to accept or refuse administration” of the COVID vaccine—all of which were approved for emergency use—it means that the government cannot force us to be inoculated. Hooray for liberty.
But what about when the vaccines receive the normal FDA approval, which seems almost certain? Refuseniks need not worry. It would still be doubtful whether the federal government could legally force you to take the jab.
The Supreme Court case most on point in this regard—indeed, the ruling often cited by national mandate-mongers—is Jacobson v Massachusetts, which permitted Cambridge to punish residents who refused a smallpox vaccination during a city disease outbreak emergency. But that coercive power is anything but absolute. The Court ruled that “under pressure of great danger” we can be “subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
So, the question would become whether—at that time—COVID presents such a “pressure of great danger” that it would be a “reasonable regulation” for the government to force everyone to be vaccinated.
Surely, the answer must be no. There has never been a universal vaccine mandate in our country’s history—not even for smallpox or polio—and COVID isn’t nearly as dangerous.
Unlike those plagues, the lethal threat is mostly limited to the elderly, most of whom have already been vaccinated. Moreover, with majorities of the general population likely to be vaccinated, a mandate would seem very hard to justify empirically.
Finally, if the vaccine is as efficacious as the statistics demonstrate—which is why I happily took the jab—only the unvaccinated would still be at significant risk. Anyone who wants to avoid illness could simply roll up their sleeve.
Oh sure, the Ezekiel Emanuels among us will shriek about the possible spread of new variants to rationalize assuming autocratic control, but such conjectural risks seem unlikely to be deemed reasonably necessary as a matter of law to secure the “safety of the general public.”
By the way: The technocrats know this too. Which is why many of them are pushing the private sector to require us to carry “vaccine passports” proving we have been inoculated as a condition of doing business or being employed. If one autocracy attempt fails, try, try again.
But that’s a column for a different day. Just know that, at least for now, there is little to fear from government vaccine mandates. The choice of whether to get inoculated against COVID remains entirely up to you.
Award winning author Wesley J. Smith is chairman of the Discovery Institute’s Center on Human Exceptionalism.
April 30, 2021 9:07 pm