District Court Rejects Challenges to Washington State Vaccination Requirements

covering "educators, healthcare workers, and state employees and contractors."

Yesterday's decision in Wise v. Inslee by Judge Thomas Rice (E.D. Wash.) rejected religious freedom, Americans with Disabilities Act, Contracts Clause, and Due Process Clause challenges. Note that the requirements included "exemptions for those who qualify for  accommodations due to their sincerely held religious beliefs." Thanks to Mark S. Leen for the pointer.

Comments

[Tom for equal rights]

How effective are the vaccines after 5-6 months

In Minnesota, since Sept 1, 2021 through 10/25.2021

Confirmed cases 144,805 :39,027 were vaxed cases = 26.9% of cases

Hospitalizations 6,989 of which 1615 were vaxed = 23.1 % of cases

Deaths total was 973 of which 251 were vaxed = 25.8%.

Normalizing for population (65% vaxed accounting for 75% of cases), the vaxed individual has approximately 1/3 less chance of catching covid than an unvaxed person.

Based on the infection rates, the hospitalization rates and death rates, being vaxed doesnt appear to be reducing the severity of covid if you catch it.

[Flight-ER-Doc]

You are missing the point.

The vaccination is supposed to prevent the patient from developing COVID. It’s CERTAINLY supposed to prevent hospitalization and death.

I got my annual flu shot today. Think I would if it had a positive correlation to being hospitalized with flu?

[Tom for equal rights]

Flight-ER-Doc
October.26.2021 at 6:45 pm
Flag Comment Mute User
“The vaccination is supposed to prevent the patient from developing COVID. It’s CERTAINLY supposed to prevent hospitalization and death.”

I absolutely agree that the covid vaccine is supposed to prevent the patient from getting covid. Likewise, the vaccine is suppose to reduce the severity of covid if the vaxed person catches covid.

However, As the data shows, that is not what is happening in the real world. As the Israeli study shows and as the MN data shows, around the 6 month point, the effectiveness of the vaccines drops.

[Flight-ER-Doc]

That sometimes happens (the Cholera vaccine is like that) but flu or yellow fever or whatever? Polio? Hell no.

I’ve got the two Moderna shots. I also contracted early on (April 2020) Covid… With that going for me, I’m skipping any of the third-shot ‘boosters’, at least for now. The numbers simply don’t add up.

And the life cycle of viral epidemics is that they start hard, mutate and become less and less dangerous, and ultimately, just one of those things.. I’ll happily take my chances now, and if my hospital makes an issue of it, well….I’m about to retire from clinical medicine anyway.

[DaivdBehar]

Doc. You should get a third. I attended a music festival surrounded and crowded in by hundreds of little COVID vectors. I tested negative afterwards.

[Don Nico]

Tom,
You don’t even need a study, just a careful examination of the statistics from Israel.. The July/August breakthrough happened when more than 62% percent of the total population had been vaccinated.
In that breakthrough peak half of all vaxed Israelis had received their shots 5 or more months earlier. In the peak there were more new cases per day than in January 2021 when no one had been vaccinated.
The Full Width half Max duration of that peak was 60 days

[Gandydancer]

“Normalizing for population (65% vaxed accounting for 75% of cases)…”

Not following you. The 65% Vaxed are accounting for ~27% of cases, according to your numbers. The 35% unVaxed must therefor account for ~73%, punching ~5-6x their weight.

[Joe_dallas]

Gandy – the 5x-6x range is correct. I made a downward adjustment based on the declining effectiveness. breakthrough previously vaxed cases in very early Aug/late July were approx 18%, so I adjusted to reflect that the % will be low to mid 30’s in Nov/Dec. i concede that my math is off.

My primary point is that eventually, natural immunity will turn out as to why immunity throughout the general population is finally achieved.

[Gandydancer]

My assumption is that immunity will not be achieved and that COVID will become endemic.

To be clear, mandatory Jab right now is entirely unsupportable. No one should have to take experimental drugs for so little social benefit. (And it IS experimental, and not just the actually available Jabs — the declaration of the unavailable “approved” jab as non-experimental was bogus; but at least you can sue for incompetent Jabbing). That there are “medical” exemptions just proves the case beyond any doubt that those arguing for the mandatory Jab are liars.

[Don Nico]

“My assumption is that immunity will not be achieved and that COVID will become endemic”
There is a high probability that your assumption will turn out to be correct.

“That there are “medical” exemptions just proves the case beyond any doubt that those arguing for the mandatory Jab are liars.”
Absolutely wrong. There are persons for whom the vaccines are contra-indicated.

[Gandydancer]

It’s hard to prove that I’m “absolutely wrong” by making an assertion that I have not denied, and you didn’t.

If people who haven’t taken the vaccine are significantly dangerouds to others then they logically ought not be employed where that is true, no matter the reason they are unvaxxed.

[Don Nico]

My negative comment was regarding your claim “regarding medical exemptions.” That there are such exemptions do not make anyone arguing for mandatory vaccines a liar.
That the judge seems to disregard the requirements of the ADA is in fact alarming. Testing twice weekly plus masks and distance requirement can lower risks to about the same level as vaccines without those added precautions.

[Gandydancer]

Anyone arguing for mandatory vaccines on the grounds that people who haven’t taken the vaccine are significantly dangerous to others but who allows medical exemptions is lying about his grounds for requiring mandatory vaccination. He doesn’t really believe what he’s saying.

Denying this is not an argument.

You know what is being demaded of you. Why are you pretending otherwise?

[Randal]

“Significantly dangerous” people are not really the reason for mandatory vaccines. The reason is to get the vaccination rate higher, in order to slow the spread of the virus generally. Not enough people got the vaccine voluntarily, so now we have to mandate it. But we don’t need absolutely everyone to get vaccinated in order to reach the tipping point, so it’s ok for the mandate to have limited exceptions.

[Don Nico]

I have no time for your polemics. Your just another one who twists arguments and ducks direct questions of medical evidence

[Josh R]

In addition to what Randall said, another argument is that the impact to others (taking into account all factors including probability of getting COVID and what happens if you get it) of catching COVID from someone who is not vaccinated is not as bad as the impact to the person not being vaccinated (taking into account all factors including probability of having an adverse reaction and what happens if get that reaction) because of a medical contraindication.

[jb]

“Gandy – the 5x-6x range is correct. I made a downward adjustment based on the declining effectiveness. breakthrough previously vaxed cases in very early Aug/late July were approx 18%, so I adjusted to reflect that the % will be low to mid 30’s in Nov/Dec. i concede that my math is off.”

The data doesn’t say what you want, so you just changed the numbers?

The big problem here is that you’re not normalizing for all sorts of other factors such as age, so we don’t have any idea how to make comparisons about, e.g., death and hospitalization rates since they’re both highly sensitive to age and comorbidities.

The actual Israeli study had a lot more rigor to it and I imagine we’ll see rigorous studies that help us understand declining effectiveness of vaccines other than Pfizer as well as how durable natural immunity is. One thing that the anti-vax crowd doesn’t take note of is that the Israeli study found declining protection from natural immunity as well, just somewhat further out than the immunity from the Pfizer vaccine.

[Darth Chocolate]

Arguing science, logic, and data is a fool’s errand when discussing religion.

[DaivdBehar]

Ironic. Exemptions are granted for imaginary concepts like religion. They are not for medical arguments, albeit debatable ones.

[shawn_dude]

Argument =/= Conspiracy Theory

[Don Nico]

Tom,
in most countries as vaccination rates exceed 50% one sees that the number of new cases per day 1 M decreases and at the same time the case fatality rate (CFR) increases. Among the few exceptions are the UK.
In Israel, the large breakthrough peak (>1000 cases per day per 1M) was accompanied by a significant decrease in CFR from its peak of nearly 7% which occurred when the case rate was less than 1.5 new cases per 1M.
The present CFR in Israel is 0.3% down from 1% when the vaccination program started.
Clearly vaccination does not necessarily prevent large breakthrough rates.
What we don’t know is how many asymptomatic cases occur in the vaxed and unvaxed populations.
I think that you’d get a lot of push back on your death statistic and consequent conclusion. I have not look at sufficient detailed data to comment one way or another. I do note that we have been told that more than 99% of deaths due to covid have been in unvaccinated populations. That comment would be consistent with the data from Israel.

[Gandydancer]

99% of the deaths occurred before when?

[Don Nico]

That was the frequently heard claims from public health officials throughout the summer.
I have never seen primary data; so, I can neither confirm nor deny

[Gandydancer]

All the deaths before vaccinations were available were of the unvaxxed. So the claim is obviously misleading, and intended to be so. You should know better than to repeat it without noting that.

[Don Nico]

No, it is not misleading.
It was a claim abut current cases in july and August, not about the time before vaccines were available.

[Don Nico]

I know and I suspect that you know also what the claims of public health officials were late this summer.
In fact I am amazed that you could even think that the claim is misleading as >250,000 died in America of (or with COVID) before vaccination even started

[Gandydancer]

“I do note that we have been told that more than 99% of deaths due to covid have been in unvaccinated populations.”

“It was a claim abut current cases in july and August.”

Then say so.

No I do not pay particular attention to announcemts by people who I have good reason to assume are liars. As in “COVID related death” counts which are clearly inflated by lack of rigor in deciding what constitutes a “COVID related death”.

I just went looking for “Flu related death” and found this: “Exact numbers of how many people died from flu this season cannot be determined.” https://www.cdc.gov/flu/pastseasons/0607season.htm

I’d also like to see what “Vaccine related death” counts would be if the conditions for counting one were as permissive as for associating them with SARS-2.

[Gandydancer]

…and as lucrative and as politically useful.

Myself, I haven’t bothered to Vax. I’ll reconsider, perhaps, when non-EUA vaccines are available. But my impression is that COVID Panic has been about as lethal as COVID, and far more damaging.

[Don Nico]

Buddy, you have lost this issue badly.
Court after court has upheld mandates and health passes.
You can blather on but it will make no difference.

[jb]

“I’ll reconsider, perhaps, when non-EUA vaccines are available”

Uhh, so get the Pfizer shot? It’s been fully approved since August.

“But my impression is that COVID Panic has been about as lethal as COVID, and far more damaging.”

You know, there’s even an interesting argument here when it comes to lockdowns, but just because that’s true doesn’t mean that the vaccines aren’t safe and effective.

[KenveeB]

“I’ll reconsider, perhaps, when non-EUA vaccines are available.”

So in other words, your entire argument is based on extremely outdated data, since you don’t even know than a fully FDA-approved vaccination has been available since August. Why should we trust any of your other assertions to be true?

[not guilty]

Gandydancer reminds me of the folk wisdom attributed to Mark Twain — it´s not what we don´t know that gets us in trouble; it´s what we know for sure that just ain´t so.

[Don Nico]

yadda yadda yadda

[Tom for equal rights]

Don Nico’s comment – “I do note that we have been told that more than 99% of deaths due to covid have been in unvaccinated populations. That comment would be consistent with the data from Israel.”

One of the frustrations in understanding the data is how often correct but highly misleading data is presented. The unvaxed 99% number of deaths is for the period from jan 2020 through today.
The correct time period for the measurement is from the post 6 month point of vaccination (July/August/Sept 2021 ) until today. The Minnesota data shows the vaxed death rate to be in the 22-25% range.

[Don Nico]

Tom,
Unfortunately the most relevant primary data to analyze these claims is generally unavailable.
I agree with you that one look at the CFR in the samples as a function of time after full vaccination. I doubt whether such statistics are even compiled, even though they would be highly illuminating.
I am hoping that the author’s of the Israeli study will be responsive to a detailed letter that includes a statistical analysis of the available tabulated data.

[Tom for equal rights]

Don Nico
October.27.2021 at 11:01 am
Flag Comment Mute User
Tom,
Unfortunately the most relevant primary data to analyze these claims is generally unavailable.
I agree with you that one look at the CFR in the samples as a function of time after full vaccination. I doubt whether such statistics are even compiled,”

That is one of my complaints!
a) The data should be readily available,
B) the data is complied but not disseminated. MN for example has the data and Kevin Roche and Dave Dixon, have been able to extract that data, with lots of difficulty.
Minn DoH goes to great lengths to mispresent the data – for example its website shows total deaths of vaxed to approx 1% of total covid deaths , instead of showing vaxed covid deaths starting 6 months after vaxed (ie starting in the Aug/sept tiem frame)

[Don Nico]

Tom,
I can tell you that the weekly hospital admissions in Israel decrease steadily as the % of persons vaccinated increased until the large peak in breakthrough cases.

Even in the peak of the breakthrough the number of patients (per 1 M) in the ICU was 30% less than the level when the vaccinated percentage was less than 20%.
There is no published record of how many of the patients were vaccinatedpost the beginning of the vaccination program.

[ReaderY]

Many effective medical treatments have to be taken every day. And many standard vaccines require boosters at some point.

If it turns out these vaccines have to be taken every 6 months, this doesn’t render them ineffective. And doesn’t change anything about their legal status or the legal issues surrounding their use.

As Justice Scalia famously said, medicines are rarely as good as their proponents first hoped, and often come with side effects. But this doesn’t render them useless. The law can’t, and doesn’t, expect them to be perfect.

[wreckinball]

That seems about right for a flu vaccine. Marginally effective

[Don Nico]

Still, you should get a flu shot especially if you have one of CDC’s commonly cited co-morbidities.
Also you should get a pneumococcal vaccine.

[shawn_dude]

The flu numbers for 2020 were dramatically lower than normal. Turns out the same precautions to prevent COVID had an impact on flu transmission as well.

[Mark Regan]

For people tracking cases on whether state-level vaccine mandates have to have religious exemptions, that issue is raised in the Maine litigation at the Supreme Court, 21A90, in the New York cases being argued tomorrow at the Second Circuit, 21-2566, and in several cases at the district court level, including Wise v. Inslee.

[Gandydancer]

There will presumably be as-applied challenges but I gather that Wise v. Inslee (WA State) doesn’t raise the issue of whether state-level vaccine mandates have to have religious exemptions because Governor Inslee’s Proclamation provides for that.

[Sidney r finkel]

It turns out the Supreme Court, which would be the law of the land except for those individuals who believe in Supreme Court decision which only come down on their position has spoken concisely and eloquently on the issue.

From the decision:

“The Supreme Court has long endorsed state and local government authority to impose compulsory vaccines. See Jacobsen v. Commonwealth ofMassachusetts, 197 U.S. 11 (1905); Prince v. Massachusetts, 321 U.S. 158 (1944)
(“The right to practice religion freely does not include liberty to expose th ecommunity or the child to communicable disease or the latter to ill health or death.”). ”

Nuff said!!

[Gandydancer]

The nonsense that is usual from you is not improved when repeated by some lawyer in a robe. Why Rice doesn’t know that Jacobsen was not in fact required to be vaccinated I don’t know, but it does not reflect any better on him than Holmes’ declaration in Buck v Bell that Jacobsen justified sterilizations.

[not guilty]

The options in Jacobson were to be vaccinated or pay a fine. The SCOTUS opinion predated present day tiers of scrutiny, but applied the functional equivalent of rational basis analysis. The case is still good law for the proposition that a state´s police power includes enactment of a compulsory vaccination law to safeguard public health, and numerous courts have relied on the decision to uphold regulatory measures regarding COVID.

[Sidney r finkel]

What he said.

[David Nieporent]

Jacobson was in fact required to be vaccinated. That’s why he was criminally prosecuted for not being vaccinated.

[Gandydancer]

He paid a relatively small fine ($5 at the time, equiv. to maybe $140-$150 today.) And he didn’t get vaccinated. As I’ve pointed out this functioned as the camel’s nose under the tent in a wind, with the result relatively shortly afterwards being Buck v Bell. The modern appeals to Jacobsen, after its long quiescence, are disconnected from its reality. If it meant what you falsely claim it meant it should anyway be overturned.

[not guilty]

Daniel Patrick Moynihan famously said that everyone is entitled to his own opinion, but not to his own facts. The regulation challenged in Jacobson provided:

Whereas, smallpox has been prevalent to some extent in the city of Cambridge and still continues to increase; and whereas it is necessary for the speedy extermination of the disease that all persons not protected by vaccination should be vaccinated, and whereas, in the opinion of the board, the public health and safety require the vaccination or revaccination of all the inhabitants of Cambridge; be it ordered, that all the inhabitants of the city who have not been successfully vaccinated since March 1, 1897, be vaccinated or revaccinated.

Mr.Jacobson was criminally prosecuted and fined for his failure to comply. SCOTUS upheld his conviction. That he exercised his right of civil disobedience makes the regulation no less mandatory.

[David Nieporent]

And he didn’t get vaccinated.

You are, of course, making this claim up, but setting that aside, what’s your point? Once again: he was criminally prosecuted for that, because it was illegal for him not to have gotten vaccinated when ordered to do so.

[Gandydancer]

I am of course not making anything up. The statement that Jacobson did not get vaccinated is reliant only on my believing that Blackman is not lying to me in his preprint.

The difference between a $5 fine and being turfed out of your job seems obvious to me, but I of course do not look at the world in the same way as a member of Team Stupid.

[ReaderY]

Are you aware that $5 was a lot of money more than a century ago?

Under our constitution, if you can punish someone with a fine, you can jail them up to a little less than life imprisonment. So far, only the death penalty and life imprisonment have been found subject to cruel and unusual punishment limits.

So the fact that there wasn’t a long prison sentence is constitutionally totally irrelevant. There could have been and it wouldn’t have made a constitutional difference.

[David Nieporent]

It still wasn’t that much money — around $150 in today’s money. But contrary to Blackman (especially as filtered through Gandydancer), nothing in the case turned at all on the punishment. The fine is not mentioned once by Harlan. The issue was whether the state had the power to order people to get vaccinated, and the answer was unequivocally yes (with some dicta suggesting the need for carveouts for medical exemptions and maybe even religious ones).

[Commenter_XY]

David Nieporent, let me ask you this question (not being a smartass).

Is it a fair interpretation of the Jacobsen decision that paying a fine was a form of ‘opt out’ from vaccination? In other words, you can choose to remain unvaccinated, but the law can punish you for that choice. If that is not really a fair interpretation (it might not be), help me understand why.

The MA law essentially said, ‘Vax against smallpox, or, pay a fine. Did Jacobsen actually find that the state could physically compel a person to be vaccinated? Or just punish them for choosing not to be vaxxed?

[Josh R]

I think it is latter, but that’s what all the regulations being challenged do as well. For example, the Washington regulation gives people the choice of getting vaccinated or losing their jobs.

[Commenter_XY]

Josh R…There is a world of difference between assessing a fine, and depriving someone of their livelihood. At least, there is a world of difference to me.

I just keep coming back to: Jacobsen affirmed that a person could be fined (a nominal amount, BTW) for refusing vaccination. Depriving someone of their livelihood seems way out of proportion to what Jacobsen said was allowable.

[Don Nico]

Yet our government insists that all employees of its contractors be vaccinated including those who work remotely.
While I advocate vaccination, such lapses in logic diminish of credibility of government mandates.

[Ridgeway]

You should read the case. It is pretty short, and when you do you will realize that Josh B’s take on it was … completely and utterly wrongheaded.

The holding is very simple — the government can pass a law requiring people to be vaccinated in a public health emergency. The amount of the fine never comes up in the opinion — it is only mentioned in the syllabus. There is no discussion of the severity of the penalty.

[David Nieporent]

completely and utterly wrongheaded

You are very charitable. That is not the word I’d have chosen.

[not guilty]

Jacobson stands for the proposition that a state legislature can make refusing a vaccination a criminal offense without constitutional infirmity.

[David Nieporent]

I just keep coming back to: Jacobsen affirmed that a person could be fined (a nominal amount, BTW) for refusing vaccination. Depriving someone of their livelihood seems way out of proportion to what Jacobsen said was allowable.

Just to reiterate: that is not what Jacobson held. It did not say that a person could be fined a nominal amount. (It did not say that a person could be fined a large amount. It didn’t mention penalties at all.) It said that a state can constitutionally criminalize vaccine refusal. And if it can, then it can impose any penalty that is otherwise lawful.

[Commenter_XY]

This is where I was tripping = It said that a state can constitutionally criminalize vaccine refusal. And if it can, then it can impose any penalty that is otherwise lawful.

Thanks for the clarification, David.

[Noscitur a sociis]

I could imagine a hypothetical opinion that analyzed things the way you’re suggesting, although it would be a rather strange way of thinking about a criminal statute. We don’t, for instance, typically say that you can “opt out” from speed limits by being willing to pay for the privilege, any more than we say you can “opt out” of the ban on robbing liquor stores by being willing to live in a box for a few years afterwards.

But at any rate, even if you can hypothecate an analysis that operates along the lines you’re suggesting, that just isn’t the analysis in the Jacobson opinion.

[Commenter_XY]

LOL…N a s, I wish there was an ‘opt out’ for speeding tickets. I just got one, courtesy of MD. Got nailed by a camera.

[not guilty]

Physical compulsion was not before the Court in Jacobson. SCOTUS upheld the criminal conviction and fine.

[David Nieporent]

Is it a fair interpretation of the Jacobsen decision that paying a fine was a form of ‘opt out’ from vaccination?

An economist would say yes. A normal person would say no.

Note that there literally was no such option. You couldn’t say, “Nah, I’m not doing it; here’s my $5.” If you said, “Nah, I’m not doing it,” you were arrested, jailed, and prosecuted, convicted, and only then could you pay $5. (If you didn’t pay the money, you went to jail.)

Think of this in any other context. You’re walking down the street and you toss an empty can of soda on the sidewalk instead of a nearby trashcan. A cop sees you and tickets you for littering. Nobody would describe this as giving you the choice between throwing away your trash or paying $50. You park in the handicapped spot (without being handicapped); that’s not a choice between parking in a regular spot or paying $500. Those are punishments for breaking the law.

At times during the civil war, one could lawfully pay a sum of money to escape conscription. That’s — again, except to an economist — simply not the same thing as dodging the draft for Vietnam, getting arrested and convicted, and paying a fine, even if the money is equivalent.

It is correct that Jacobson did not rule on whether the state could forcibly vaccinate you, in the sense of tying you down while someone jabs you with a needle against your will; that was not at issue. But since nobody is proposing that now, it’s just a Blackman strawman.

[Commenter_XY]

This was helpful, thanks! 🙂

[not guilty]

Do you disapprove of Buck v. Bell? I am surprised. I thought you were copacetic with the state making reproductive decisions for its citizenry.

[Gandydancer]

“I thought….” In your case any such statement is implausible.

By “reproductive decisions” you of course mean abortion. AFAIK you have no principled objections to the state regulating abortion. I’m assuming that there are some limits you approve of, but feel free to inform me otherwise.

[not guilty]

I agree that abortions should be performed only by licensed physicians. I am comfortable with fetal viability being the point at which a state may outlaw abortions, subject to an exception for maternal health as required by Roe v. Wade.

[jb]

None of the laws in question actually physically force vaccination, there’s just some negative consequence for people who aren’t vaccinated. In the case of the Washington law, it’s that you can’t have certain forms of employment with the state. In Jacobson’s case, it was that he had to pay a fine. I’m not sure why you think these are meaningfully different; if anything, the rule Jacobson faced was more coercive in that there was no alternative to either being vaxed or paying the fine, whereas there are many other jobs available to people who don’t want to be vaccinated.

[David Nieporent]

if anything, the rule Jacobson faced was more coercive in that there was no alternative to either being vaxed or paying the fine,

Well, there was jail.

[Armchair Lawyer]

This really strikes me as severe overkill on the part of the government. The percentage of people requesting a religious exemption is fairly low, and could well be accomodated, without severe issue.

To put this in context, we can look at the vaccination rates of kindergarteners nationwide. Typically, we see approximately 0.3% of the population with Medical exemptions and 2.2% of people with religious or philosophical objections (link below).

With these numbers in place, for common diseases in Kindergarten, we see little to no real risk of impeding herd immunity.

https://stacks.cdc.gov/view/cdc/100473

I would expect at least 2.2% of people to have religious objections to the current vaccine, and they should, in all fairness, be granted.

[not guilty]

Per the District Court opinion, the Washington Proclamation recognizes exemptions for those who qualify for accommodations due to their sincerely held religious beliefs.

[Armchair Lawyer]

Well… Except for the E-mails from the Governor who tried to make the religious exemptions “If we have to, yes, as narrow as possible”

https://www.q13fox.com/news/emails-state-sought-to-make-religious-vaccine-exemption-as-narrow-as-possible

No possible potential bias there….

[Gandydancer]

If you think madatory vax is a good thing then making exemptions as narrow as possible is merely sensible, not evidence of bias.

[Armchair Lawyer]

Sometimes, when you demand the exemptions be “as narrow as possible”…they are, let’s say, “overly narrow”.

[not guilty]

Narrow tailoring of the restriction is part of strict scrutiny analysis, which the District Court found to be satisfied here. It appears to be undisputed here that the State has a compelling interest in preventing the spread of COVID-19.

What less restrictive means do you posit that would satisfy that compelling interest?

[Armchair Lawyer]

We’re not talking about strict scrutiny really. We’re talking about how an administration interprets an order from the state to be overly restrictive.

Imagine, for example, there was a medical exemption. But the administration made a comment for it to be “as strict as possible and to not exempt anyone who could possibly be exempted”.

Now compare that to a nearby state which just had a standard “medical exemption clause”, and the overly restrictive state had just 30% of the level of medical exemptions compared to the normal state. One could argue the overly restrictive state was actually denying many exemptions to those who would normally get it.

That’s what’s going on here.

[not guilty]

That is not what the lawsuit is about. Have you read the District Court´s opinion?

[Gandydancer]

Just stop with the stupid homework assignments, already. If you have somethingto say, say it.

[not guilty]

There is no substitute for parsing original source materials.

[Gandydancer]

There is a great shit-stream of original source materials and a limited lifetime to sort through them. As I said, if you come up with any turds that you think are gems fetch them here and we’ll see. It’s got to be better than your usual baseless declarations.

[Armchair Lawyer]

Now, the most direct comparison is going to be between Washington State and Oregon. Both put mandates into place. But in Oregon, religious exemptions were liberally granted. In Washington state…they were far, far more “strict”.

So many more public employees in Washington State are losing their jobs as a result, while few if any are losing their jobs in Oregon.

https://www.kgw.com/article/news/health/coronavirus/vaccine-mandate-exemptions-oregon-washington/283-7165d00f-3293-44e2-accb-bb940e85e31b

It will be interesting to see an after the fact analysis of the relative death rates due to COVID (as opposed to other items like increased homicide) resulting from the disparity…

[not guilty]

Vaccine mandates lie within the state´s police power, per Jacobson v. Massachusetts. If different states take differing approaches, how is that an issue? What am I missing?

[Gandydancer]

Everything.

[not guilty]

IOW you can’t explain.

[Gandydancer]

Your “response” was completely perpendicular to the point being made.

I could explain this to you, but on past evidence it would be a complete waste of my time.

[Michael P]

Defund the police power!

It’s amazing how many people want to invoke a very broad police power for their preferred policies, however ineffectual, while treating that power as illegitimate when they disagree with its application.

[David Nieporent]

The percentage of people requesting a religious exemption is fairly low, and could well be accomodated, without severe issue.

Maybe it could have been — just as it has been for other vaccinations — before Trumpkins decided to make it a political issue and start lying about their religious beliefs.

But in any case this provides for such accommodations, so I’m not sure what you’re talking about.

[Armchair Lawyer]

I’m talking about overly restrictive enforcement of the accomodations.

Compare two states…Oregon and Washington. They should have roughly the same number of granted religious exemptions per capita. But…they don’t. Washington has far fewer medical exemptions and denied far more medical exemptions.

Washington is using an entirely different paradigm for restricting medical exemptions than is standard.

[shawn_dude]

And more people are trying to find a way to avoid a lawful mandate than standard. Maybe the two are linked? Cause and effect?

[jb]

I think the main problem here is that lots of people are obviously making “religious objections” that are not based on any sincerely held belief. There’s a bunch of people who just don’t want to be vaccinated for other reasons who will claim a religious exemption if that’s the only way to avoid vaccination.

I do think that in general fine from a public health perspective to allow bona fide religious exemptions, but I don’t envy people who are stuck trying to figure out how to evaluate those in a polarized vaccination context like we have today.

[CindyF]

The powers that be have decided that you WILL be vaccinated. It matters not what your particular situation is in regards to immunity, medical condition, etc. You must obey!

[Jason Cavanaugh]

If you’re going to make a habit of posting obviously false statements, perhaps you should wander back to 4chan and never return.

[CindyF]

What is false about my statement? The federal government’s position is that everyone should be vaccinated and they do not want States to make their own decisions. With the pressure from the feds, very few state governments are allowing exemptions. Are they saying, “consult your doctor and make your own decision”? No, they are saying, “Get the vaccine, you much obey if you want to keep your job”. This is ridiculous for a virus that has a very low death rate.

[Jason Cavanaugh]

Um, everything.

Most notably, the claim that medical conditions have no impact on whether someone should or should not get vaccinated against COVID.

That’s blatantly false.

Also, how is it that you’re still ignorantly acting like death rate is the only consequence of an infection? How deliberately have you been sticking your head in dark places to still make such an idiotic argument?

[Don Nico]

“This is ridiculous for a virus that has a very low death rate.”
But has killed 750,000 Americans. By the way the present daily CFR in the US is about 1.3%, not so very low as you imagine

[Jerry B.]

Don’t tell this to California, whose AG is fighting a judges order that all prison staff must be vaccinated. The fact that the prison guard’s union contributed $1.75 million to support Gov. Newsom during the recall election has nothing to do with that at all, though.

[Martinned]

It’s almost as if letting companies and rich people buy politicians is a bad idea…

[AtR]

Time to turn to Putin for some common sense:

https://www.youtube.com/watch?v=wHpt4gB0-Mw

[Gandydancer]

I hope you don’t have a famous brother. Otherwise, like General Flynn’s, you’ve now opened him up to being pictured with you in a CNN piece called “Inside a Gathering of Followers of Putin”. (Neither of you have to be present at any such gathering for the kritarchs to rule that everything is pefectly OK about such a smear.)

[Rev. Arthur L. Kirkland]

Gen. Flynn’s brother . . . was he the delusional, worthless, un-American piece of garbage who was recorded reciting the QAnon oath, then the traitorous coward who tried to mislead people by claiming he was merely reminiscing about John F. Kennedy’s boat or something?

Or was that someone else?

[M L]

Wow.

[Jimmy the Dane]

I don’t particularly care for the various mandates from a personal liberty standpoint. I also don’t care much for the anti-Covid vaccine people.

It would be one thing if the vaccine prevented transmission or greatly reduced the chances of it. Doesn’t appear to have much of an effect on that aspect. It does seem like it is going to mean the difference between hospitalization (and perhaps death in rare circumstances) and a mild/moderate run of symptoms. Without the transmission portion of the equation I just fail to see the overall compelling public good that should override the assumption of persona liberty.

Also, the more and more that comes out the weaker these vaccines look as far as effectiveness. I think that might be the lasting legacy of the whole Covid pandemic. We forced a bunch of people to take an unnecessary medical treatment that did little to prevent or mitigate the actual disease due to public hysteria.

[DaveM]

You are perhaps being too kind when you said, “We forced a bunch of people to take an unnecessary medical treatment that did little to prevent or mitigate the actual disease due to public hysteria.”

You are leaving out the very real possibility that the government and its allies in business and media took advantage of the disease to enhance their power base, profitability, and viewership numbers. One way to look at this is to compare the relative power and competitive standing of these big organizations from before and after the COVID responses.

“Never let a crisis go to waste.”

[David Nieporent]

Yes, Zoom shareholders orchestrated a worldwide plot, killing conservatively 750k Americans and millions of people, in order to boost their stock price.

[I Callahan]

Dave N, that’s a pure bullshit non-answer, and you know it. There are quotes from world leaders that refer to using this opportunity as a “great reset”. We have Biden saying we should use the pandemic as an opportunity to greatly expand government. I can easily find links to these if you’d like, but quit setting up obvious straw men, because it’s as dishonest as hell.

[Sarcastr0]

This is worldwide. It’d have to be a helluva conspiracy among the governments of countries big and small for DavidM’s postulate to make any sense.

And the great reset has been an anti-world government conspiracy for ages.
Fastening onto something descriptive and pretending it is actually the worldwide conspiracy revealing itself does not help your case.

[Davedave]

“It would be one thing if the vaccine prevented transmission or greatly reduced the chances of it. ”

That’s exactly what it does. Without a shadow of a doubt. It’s depressing how prevalent the misinformation has become, because that really isn’t up for being questioned – it’s as firmly established as water running downhill.

[Michael P]

The CDC disagrees, in their Provincetown (MA) case study. Public health authorities in the UK and Israel say you are wrong. What evidence need do you actually have?

[Sarcastr0]

The CDC does not disagree. You’re reading the study like people who say seatbelts cause fatal accidents.

In other words, to quote the study: As population-level vaccination coverage increases, vaccinated persons are likely to represent a larger proportion of COVID-19 cases.

[Michael P]

CDC: “Approximately three quarters (346; 74%) of cases occurred in fully vaccinated persons” – that is not “prevented transmission or greatly reduced the chances of it”.

CDC again: “Real-time reverse transcription–polymerase chain reaction (RT-PCR) cycle threshold (Ct) values in specimens from 127 vaccinated persons with breakthrough cases were similar to those from 84 persons who were unvaccinated, not fully vaccinated, or whose vaccination status was unknown” – so viral loads were similar.

[Don Nico]

Michael,
The experience in 30 nations with strong vaccination programs with a total population of nearly 3 billion people is overwhelming evidence that vaccination of a large fraction of the population significantly reduces the number of new cases per day month long periods. Even in Israel which had a very large breakthrough that lasted 60 days the present rate of infection is 255 of its level pre-vaccine program

[shawn_dude]

When they say that something is 95% effective, did you ever wonder what that other 5% might look like?

You just described it. Congrats.

[Sarcastr0]

Read it again, Mike:

As population-level vaccination coverage increases, vaccinated persons are likely to represent a larger proportion of COVID-19 cases.

This explains why 3/4 of cases were in fully vaccinated people.

And the viral load in breakthrough cases is a completely different issue once you get your population denominators correct.

[jb]

I can’t believe how dumb this take is.

The vaccine does not reduce transmission to 0%. No one claims that, and in fact now there’s evidence that vaccine efficacy declines over time and that the Pfizer vaccine in particular provides much less protection against the Delta variant within a few months of the second shot. But there are LOTS of studies that very clearly demonstrate that all of the vaccines reduce transmission.

Your Provincetown example is particularly dumb. Almost everyone there was vaccinated, because it was required for attendance. Hopefully this is obvious, but if 100% of people are vaccinated, then 100% of the cases will be breakthrough infections in vaccinated people. The question is not what fraction of the cases in a highly vaccinated population are amongst vaccinated people, it’s how many cases are there compared to how many you’d expect amongst an unvaccinated population.

[I Callahan]

Then why do we need boosters if it works so well?

[jb]

The same reason that just about every other vaccine is a multi-dose series. (e.g., the polio vaccine is five doses over several years)

[DavidTaylor]

“Without the transmission portion of the equation I just fail to see the overall compelling public good that should override the assumption of persona liberty.”

I wonder if the significantly lower cost of treating ‘breakthrough’ infections might be public good in this case. The cost of hospital treatment for an unvaccinated Covid-19 patient ranges from about $17,000 to roughly $78,000, depending upon severity and levels of care, and when those costs are covered, whole or in part, by insurance, other members of that risk pool share the ultimate cost. Since many of the earliest Covid-19 patients were elderly and presumably covered by Medicare, we all end up sharing that cost. At least one estimate of the preventable cost of Covid-19 treatment was $3.7 billion — which we all end up paying. I have not seen good figures for the cost of treating breakthrough infections, but at my hospital those patients have shorter lengths of stay — if they are admitted at all — and require lower levels of care if they are admitted. Just wondering.

[ReaderY]

Assuming current privacy jurisprudence makes not wanting to be vaccinated a constitutional right, I don’t think that government can breech constitutional rights simply to save money. The basis for the compelling interest argument (or the argument for more deferential constitutional treatment of vaccination laws however classified) is that pandemic diseases threaten the survival of society as a whole. This, and not just saving money, creates the basis for a compelling state interest (or more deferential treatment however classified).

[DavidTaylor]

That makes sense — thanks for the response.

[not guilty]

On what do you base your assumption about privacy rights? Do you have any authority for the proposition that not wanting to be vaccinated is a constitutional right?

I would think that forcible administration of a vaccine would raise some substantive due process concerns, but I don’t know of anyone who is proposing that.

[jb]

“Assuming current privacy jurisprudence makes not wanting to be vaccinated a constitutional right”

That seems like a bad assumption based on basically every ruling on the topic.

[Jimmy the Dane]

The fallacy here is that only a few Covid infections will ever end up in the hospital vaccine or no vaccine. In a liberty based society, we do plenty of things that might “cost” the society as a whole “more money” because the value of liberty is something that you cannot put a price tag on.

[Josh R]

It would be one thing if the vaccine prevented transmission or greatly reduced the chances of it. Doesn’t appear to have much of an effect on that aspect.

Are you sure about that conclusion?

[ReaderY]

Professor Blackman has argued for an expansive interpretation of Chief Justice Roberts’ Sebellius opinion that the penalty in the ACA is really a tax. He argues ghat any time there is a small fine, it can be treated as equivalent to a tax. Since Jacobson was fined $5, he applies Sebellius to interpret the Jacobson case as holding only that a state can tax refusal to vaccinate. With this interpretation, it remains open to argue that more serious criminal penalties, job loss, and other consequences are unconstitutional.

This interpretation badly misapprehends the Sebellius case. The penalty at issue in Sebellius was administered by the IRS in the exact same manner as a tax, and was not imposed following conviction by a court. This distinction was critical to Roberts’ holding that the ACA penalty was tax-like in all functional respects.

The penalty in Jacobson, on the other hand, was imposed by a court following a criminal conviction. This difference takes it totally outside the ambit of the Sebellius case. Rather than being a functional tax simply labeled a penalty, it is a functional penalty in every respect.

[ReaderY]

Let’s look at this in a little more detail. Sebellius cited Drexel Furniture for the standard to use to distinguish a tax from a penalty. Drexel Furniture found that the “Child Labor Tax” was really a penalty based on three criteria:

1. The amount was grossly disproportional to the activity taxed.

2. The law contained a scienter requirement, an extra indication that the activity involved is regarded as misconduct.

3. Enforcement was tasked to the Department of Labor, which ordinarily enforces pubitive statutes, not to a taxing body like the IRS.

Professor Blackman’s argument focuses exclusively on the first of the three Drexel Furniture criteria and simply ignores the second and third. Both of the latter criteria make the Jacobson fine unambiguously a penalty, not a tax, under Drexel Furniture and accordingly under Sebellius. The law that resulted in Jacobson’s fine was a criminal statute containing a scienter requirement. And it was enforced by the public prosecutor and the criminal courts, bodies even more closely associated with punitive measures than the Department of Labor in Drexel Furniture.

Thus, by the standards articulated in the Senellius case, the fine in Jacobson was unambiguously a penalty, not a tax.

Accordingly, Massachussets could have omposed any criminal penalty it wanted to the limits of 8th Amendment cruel and unusual punishment. Massachusetts’ decision to punish Jacobson’s violation comparatively lightly was a discretionary political decision by the legislature to permit a lighter punishment and a discretionary sentencing decision by the judge within the law, and in no way a constitutional requirement.

[Nuke the cane]

Roberts upheld the ACA mandate as a tax only because the Federal government needs a constitutional basis to regulate and the conservative justices bought the specious argument that “inactivity” could not be regulated under the Commerce Clause. This analysis is irrelevant to the states which have general police powers.

[ReaderY]

I agree there are other reasons why Professor Blackman’s argument is flawed. Professor Blackman has been arguing that Jacobson doesn’t permit states to generally punish refusal to vaccinate because, Jabcobson was only subjected to a $5 fine, under current Supreme Court doctrine a $5 fine isn’t a real penalty, and hence the question of imposing more serious consequences remains open.

I simply chose to focus on one aspect of his argument, the claim that Jacobson’s $5 fine wasn’t a real penalty under current Supreme Court doctrine.

[ReaderY]

I agree that Sebellius only deemed the ACA penalty a tax within the context of the Federal taxing power and no other context. The same case held it was a tax within the meaning of the Anti-Injunction Act.

But if Sebellius had used only the gross disproportionality criterion and no other to determine what constitutes a tax, it would be open to Professor Blackman to argue that the Sebellius definition should be applied to other contexts, including this one. After all, it’s not uncommon for courts to take definitions from one context and apply them to another. Whether we might agree with it or not, it would be open to argue that this should be done here.

The fact that under Sebellius criteria Jacobson’s fine was unambiguously a penalty forecloses this argument.

[ReaderY]

Sorry, Sebellius held the ACA penalty was NOT a tax as defined by the Anti-Injunction Act, hence the Act didn’t apply and the case could proceed.

[David Nieporent]

Accordingly, Massachussets could have omposed any criminal penalty it wanted to the limits of 8th Amendment cruel and unusual punishment.

And the 8th hadn’t been incorporated at the time, so…

[ReaderY]

The Supreme Court, after incorporating the 8th Amendment, has found capital punishment and life imprisonment to be cruel and unusual punishment for certain crimes. But so far it has never found a penalty less than life imprisonment to be cruel and unusual punishment for any crime.

While it might perhaps find for the first time ever that a prison sentence of some decades is cruel and unusual punishment for a vaccination offence, whether it would do so or not is speculative. In the current politi al climate, is unlikely a legislature would impose a penalty harsh enough to test the 8th Anendment’s limits on this issue.

[David Nieporent]

In fact, I don’t think SCOTUS since incorporation has ever found anything less than life imprisonment without the possibility of parole to be C&U for any crime.

[wreckinball]

That seems about right for a flu vaccine. Marginally effective