Proposed Bill in New York Legislature Would Mandate COVID-19 Vaccinations

There is no option to pay a fine rather than receiving the vaccination.

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Last month I wrote two posts about the precise holding of Jacobson v. Massachusetts. That case did not uphold the state's power to forcibly vaccinate a person. Rather, Justice Harlan's 115-year old opinion affirmed that the state could offer people a choice between paying a nominal fine and receiving the vaccine. Justice Gorsuch echoed my understanding of Jacobson in Diocese. And I haven't seen anything to the contrary written elsewhere. If you'd like to dive deeper, I discussed Jacobson on the Lawfare podcast.

Earlier this week, a bill was introduced in the New York legislature that would impose an actual COVID-19 mandate. It provides, in part:

. . . if public health officials determine that residents of the state are not developing sufficient immunity from COVID-19, the department shall mandate vaccination for all individuals or groups of individuals who, as shown by clinical data, are proven to be safe to receive such vaccine.

This bill does not say that the failure to receive the vaccination is a crime, which can be punished by a fine, or even incarceration. The statute says that the "department shall mandate vaccination." In this context, shall means must. To paraphrase the controlling opinion in NFIB v. Sebelius, "The most straightforward reading of the mandate is that it commands individuals" to receive the vaccine. There is no possible saving construction here. This bill authorizes the government to jab a person in the arm with a vaccine.

Jacobson does not provide support for this law. Again, the law at issue in Jacobson was not a true mandate. The Massachusetts Supreme Judicial Court's opinion in Commonwealth v. Jacobson "[i]f a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of the penalty of $5."

Diocese thankfully cleansed Jacobson from the judicial cannot with respect to lockdown cases. I hope judges do not lazily cite Jacobson in a future vaccination cases. If you want a precedent about the state forcibly performing medical procedures on people to promote the common good, look to Justice Holmes's opinion in Buck v. Bell. Justice Blackmun cited Holmes for that precise proposition in Roe.

And what about a Free Exercise challenge? The bill does include a "medical exemption," but it lacks any religious exemption. Would this rule still be one of general applicability? I need to give this issue some thought.

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  1. “Jacobson does not provide support for this law.”

    But some of Jacobson’s progeny support it quite well.

    1. And actually Prof. Blackman’s being a bit disingenuous here. What he means is that Jacobson is distinguishable. But that’s different from saying that it does not provide support at all.

      1. Some people go to war with the precedent they need, not the precedent that exists.

      2. I’m also dubious that Jacobson is in fact distinguishable, since the Supreme Court didn’t appear to place any weight on the distinction. (It’s also not at all clear to me that this bill is in fact requiring the government to forcibly vaccinate the unwilling.)

  2. There is no good reason for forced vaccinations. If you want to be resistant you can get one. If not don’t. The very young are resistant to covid to the point of lottery odds so they don’t have that excuse this time. This is pure power mongering over bodily autonomy that is supposedly so sacred.

    1. What about those who cannot get the vaccine?

      By forcing everyone who can to get the vaccine, the state protects those who cannot get it.

      In a similar vein, we ban peanut butter, smoking, … and hate speech.

    2. The proposed vaccines are 95% effective while the effective rate for healthy individuals younger than 70 is 99+%.

      How can you justify vaccination when the development of the natural immune system is more effective.

      1. An excellent point. The data I saw said that in one study of over 40,000 people, half of whom got a placebo, fewer than 100 contracted Covid. Sure, it showed 90+% “effectiveness” (meaning tens of people vs less than ten people) but it’s still doing statistics on small numbers which could easily be explained by subtle differences in behavior.

      2. We are close to overwhelming ICUs, that is the operative measurement, not death rates. Even less than 1% of 300 million is a hell of a lot of people for hospitals to deal with in a single year. What is the hospitalization rate? The ICU rate?

        And you guys guys are comparing apples to tangelos here. If you give a young person the vaccine, they now have a 95% chance of not even risking the sub-1% chance or dying. But that’s not why to give it.

        The why is the artificial herd immunity vaccines bring about, causing the hospitalization totals to drop to safer levels.

        1. Krayt ‘s comment – “We are close to overwhelming ICUs, that is the operative measurement, not death rates. Even less than 1% of 300 million is a hell of a lot of people for hospitals to deal with in a single year. What is the hospitalization rate? The ICU rate?”

          I would agree that ICU capacity is an issue, especially with several regions showing 90% usage of ICU beds. However there is a lack of readily available data showing ICU usage for prior years which prevents a proper comparison. Traditionally, a significant portion of hospitals run at near 100% usage for the ICU beds during various times of the year. So, some regions running at 80-85% usage shouldnt be that alarming.

          Again without comparative data, the claims of icu bed shortage is meaningless. Common with cherrypicking data. Similar problem in climate science, pick a single data point and you can make any trend line.

    3. It does kinda give the whole Roe v. Wade “my body, my choice” argument a tiger suplex style smackdown.

      1. “A woman has a right to her body and can have an abortion.”

        “Then she can be a prostitute as well.”

        Conservatives view that as an argument against.

        Libertarians as an argument for.

        Liberals as a chance to deploy situational ethics.

  3. Is there mandatory compensation for people who end up damaged by side effects due to the mandated vaccine?

    No? In that case no thanks. This law should not go forward.

    1. Great point….had not thought of that one = mandatory compensation for people who end up damaged by side effects due to the mandated vaccine

      1. There is already the National Vaccine Injury Compensation Program, which is a no fault fund established to compensate people injured by most vaccines that have FDA approval.

        So that shouldn’t be a factor.

        1. Kazinski, the NVICP is a lengthy process only after which the plaintiff can file s civil suit.
          So liability is a factor

          1. From HRSA dot gov:

            What is the process?
            An individual files a petition with the U.S. Court of Federal Claims.
            The U.S. Department of Health and Human Services medical staff reviews the petition, determines if it meets the medical criteria for compensation and makes a preliminary recommendation.
            The U.S. Department of Justice develops a report that includes the medical recommendation and legal analysis and submits it to the Court.
            The report is presented to a court-appointed special master, who decides whether the petitioner should be compensated, often after holding a hearing in which both parties can present evidence. If compensation is awarded, the special master determines the amount and type of compensation.
            The Court orders the U.S. Department of Health and Human Services to award compensation. Even if the petition is dismissed, if certain requirements are met, the Court may order the Department to pay attorneys’ fees and costs.

          2. If there’s any kind of systematic problem for even remotely large numbers, I don’t think sufficient effort for compensation will be lacking.

        2. The NVIC court pays out something like 2% of claims. Obviously very hard to win. Even so they have done billions of dollars of awards, which to me pretty much proves access to compensation is needed.

          1. That’s probably because most claims are bullshit. The autism link to childhood vaccines has been totally disproved and yet they probably file quite a few claims every year just for that.

  4. Sigh … again, NFIB v. Sebelius only discussed prohibiting mandates at the federal level, not the state level. The commerce clause does not extend to individual mandates.

    But commerce clause arguments do not apply to states. Otherwise states would only be able to regulate interstate commerce, which makes no sense! The purpose of the clause was to prevent states from doing that by putting it at the federal level.

    For example, NFIB didn’t invalidate Romneycare.

    Now, I might be open to extending commerce clause limitations to the states, if done carefully (amendments weren’t meant to fully define the scope of liberty, so arguably there ought to be more to the 14th than incorporation) but there is currently zero precedent in favor of such a rule.

    So unless you have an expansive view of the 14th amendment, it is difficult to argue why such a mandate won’t be constitutional. Gorsuch’s citation of Jacobson discussed an issue of religious liberty. Religious liberty is incorporated against the states. But limitations on a general mandate isn’t.

    1. 1. It’s not clear that such a mandate would survive religious exemptions.
      2. The most direct real comparison is the draft. “Forcing” someone to do something, against their will. But even that had many exemptions.

      The real issue is, in a free liberal democracy, the concept of forcing someone to inject something into their body, against their will, strikes a nerve

      1. Superstitious people are gullible and believe some remarkably stupid things, but ‘God hates the vaccinations I believe he created?’

        1. Hi Rev,

          How do you feel about the Falun Gong?

    2. Agree. This is about the state’s police power and Free Exercise for religious objectors, nothing else.

      1. I’m not sure.

        There are basic aspects of liberty involved here.

        Could the state, for instance, forcibly harvest an innocent person’s kidney? So it could be given to someone else who needs it?

        Why or why not?

        1. There are basic aspects of liberty involved in any exercise of the police power, which is by definition a compulsion of someone to do something.

          But fair enough. I’m sure you can concoct a SDP argument. Let me consult my penumbra guide…

          1. Usually, the police power is a compulsion for someone “not” to do something. Which is different.

  5. “Diocese thankfully cleansed Jacobson from the judicial cannot with respect to lockdown cases.”

    The “judicial cannot”? Does that mean courts “cannot” cite Jacobson? Or just the opposite (because it was cleansed from the “judicial cannot”)?

    1. Presumably a typo for canon. (On the substance, Prof. Blackman is, as usual, totally wrong.)

      1. How so?

        Maybe “cleansed” from the canon is too strong a term, but it’s correct to say that courts are far less likely to cite Jacobson going forward (as should have been the case all along).

        1. The opinion of the court didn’t even mention Jacobson, much less purport to overrule it.

          And even the discussion in Gorsuch’s concurrence focused on how the Jacobson holding should carry little weight outside of its fact pattern, i.e. a government requiring vaccinations during a pandemic. Which may be a fair point, but hardly changes the likelihood of the case being relied upon when the government is trying to require vaccinations during a pandemic.

          1. The lower courts were hanging their hats on Jacobsen because they didn’t have anything from SCOTUS to cite. Now they do, regardless of what Gorsuch et al. actually said about Jacobsen. Jacobsen was already very easily distinguishable on its facts.

            Again, it’s not a full on cleansing, but it’s definitely a sweeping-asiding of sorts.

  6. I’m not sure Josh is being an unbiased analyst here.

    If you’re a state or local government lawyer and you don’t cite Jacobson in a vaccine case, you’re committing malpractice. It absolutely is relevant. Not sure what Josh is thinking.

    Gorsuch’s solo concurrence didn’t kill off Jacobson in lockdown cases. It will continue to be relied on at least for 14A claims. It now will be relied on much less frequently re: 1A claims though, I suspect.

    Mandatory vaccination laws are not at all new. There is more than a century of case law on the issue, including Jacobson. More recently, there are multiple federal court decisions upholding mandatory vaccinations laws for kids in school. Why doesn’t Josh discuss any of those decisions?

    Will be interesting to see how courts come down on the religious exemption issue. I suspect the new SCOTUS would frown on a law with no such exemption.

    None of the above issues depend on whether you think any such mandates are good or bad policy, a boon to public health or a substantial threat to individual liberty. Josh seems a bit off on his analysis and assumptions, IMO.

    1. “If you’re a state or local government lawyer and you don’t cite Jacobson in a vaccine case, you’re committing malpractice. It absolutely is relevant.”

      Buck v. Bell is better authority. Should you cite that?

      1. Personally, I would avoid it, because of the distasteful facts of that case. Fortunately, as I noted, there are plenty of cases since then that have upheld State authority to mandate vaccinations of school kids and certain hospital workers. So there are enough cases to cite without having to rely on Buck v. Bell.

    2. Yep. Not his best post.

    3. In which way does Blackman not cite Jacobson?

      “ Again, the law at issue in Jacobson was not a true mandate. The Massachusetts Supreme Judicial Court’s opinion in Commonwealth v. Jacobson “[i]f a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of the penalty of $5.”

      And discussing its relevance to NY’s proposed law:
      “This bill does not say that the failure to receive the vaccination is a crime, which can be punished by a fine, or even incarceration. The statute says that the “department shall mandate vaccination.”

      Seems like he makes a pretty good point that citing Jacobson won’t get the job done upholding NY’s proposed law.

      1. Not really.

        I don’t see anything in the Jacobson holding that suggests the consequences of failing to comply with the vaccination requirement are relevant to its legality. And I think Prof. Blackman is severely overreading the discussion (if you can call it that) in the lower court opinion.

        I also don’t think it’s entirely clear that this bill would in fact require forcible vaccinations. It seems to me that if people who violated the department’s new mandates were punished by fines or imprisonment, that would be entirely consistent with the instructions in the law.

  7. What about insurance companies? Can they refuse to pay for hospitalization if a vaccine was declined despite not having a known medical reason for avoiding it?

    Maybe the solution here is, rather than make people do the responsible thing, make them accept the consequences for being irresponsible. Same thing with employers that refuse to take appropriate measures to safeguard essential personnel or bar owners that open their bars to crowds. Legal liability might motivate them to do the responsible thing.

    1. Ok … I’ll play … which is the “responsible thing” – taking an experimental and novel vaccine with only short term safety data, or abstaining from same vaccine amid significant evidence of relative safety for the healthy young?

  8. Leave aside for the moment the extant Sup. Ct. case law, let’s look at the principles. If the government can prohibit me from going to church, eating in a restaurant, going to a bowling alley, entertaining a dozen friends in my home, etc., in order to prevent the spread of a deadly disease, why can’t the Government tell me I have to get a shot (OK, two shots) to prevent the spread of a deadly disease? Or conversely, if the Government can’t tell me I have to get the shots, how can it prohibit me from going to church, eating in a restaurant, going to a bowling alley, entertaining a dozen friends in my home, etc.? Isn’t it all or nothing?

    1. If the shots are more about reducing overwhelming ICUs, then they are in the came category as shutdowns.

      I said it at the time and I’ll say it again: politicians last spring converting the cause for masks and shutdown from “leveling the curve” of hospitalizations to “keeping you, yes you there, from dying from COVID” was a raw, political fraud.

  9. Seems to me the whole argument is the same as prohibiting you from putting drugs into your body. Each relies on protecting “the public” as the basis of the rationale. If gov’t can do one, I don’t see any reason they can’t do the other. Granted one entirely assumes that a drug user will be a menace to society via their actions while under the influence while the vaccine assumes an unvaccinated person will be a menace to society by their mere presence in society.

  10. Buck v Bell is a good decision imo. I never saw the problem with this.

    1. Buck v. Bell involved a State forcibly sterilizing a woman on the grounds that the State determined she was not smart enough to have children. Despite Justice Blackmun citing Buck v. Bell in Roe v. Wade, Roe effectively overruled Buck. If a woman has the Constitutional right to determine if her body will produce a child, how can any government claim the authority to prevent her from having her body produce a child?

  11. I wonder how many mostly peaceful protests will occur over this massive government intrusion on private lives?

    What about the inevitable shooting as police kick down doors to drag people from their homes?

    1. If NY’s mandatory vaccination law doesn’t have a penalty for criminal behavior, as some above have said, then what are they going to do? Kick down your door and hold you down?

      And how would that work? Can’t get a warrant because it’s not criminal. Can’t break in because criminal activity is known to be ongoing.

  12. I wonder if the New York law is premature. I would first see how well the vaccine is accepted. Remember it will take a long time to roll out the vaccine and we are likely looking to spring for wide scale immunization.

    I would hold my powder for now. I would also see a lot of social pressure to vaccinate. Many employers may require vaccination as a condition of employment. People will wish to protect their families and so get vaccinated.

  13. And so, it begins: https://apple.news/AJ5PEnhB6QqSKbG6CrenURQ

    My wife is highly allergic to seafood and my son to nuts, so there’s two right there who should not get this vaccine.

  14. Gorsuch, in his Diocese opinions, writes, “To justify its result, the [South Bay] concurrence reached back 100 years in the U. S. Reports to grab hold of our decision in Jacobson v. Massachusetts.

    Here, Blackman writes, “Rather, Justice Harlan’s 115-year old opinion affirmed that the state could offer people a choice between paying a nominal fine and receiving the vaccine.”

    What’s the deal with stressing the age of the Jacobson case as a negative factor? Is there any expiration date for Supreme Court opinions? If the majority strikes down a law in a case, would it make sense for a dissenting justice to write “to justify its result, the majority reached back 217 years in the U. S. Reports to grab hold of our decision in Marbury v. Madison.”

    I hope Josh (and Gorsuch) never attempt to support a legal argument with a case decided prior to 1905, since those are apparently expired.

    1. Oh, and lets not forget that in Zucht v. King (1922) – a case addressing a challenge to a city ordinance requiring children to be vaccinated before attending public school – a unanimous Court stated, “Long before this suit was instituted, Jacobson v. Massachusetts had settled that it is within the police power of a State to provide for compulsory vaccination. That case and others had also settled that a State may, consistently with the Federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative.”

      However, I realize that just reached back 98 years in the U. S. Reports (to Justice Brandeis’ 98-year old opinion). So maybe that case doesn’t apply either.

  15. First off there is no way this will ever hold up. The people will revolt if they manage to get this passed. These people are out of touch with reality on what is going to occur if they think for one second they will force a vaccination on the people. If they want to met with violence and blood shed by all means make this a law.

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