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Legal Challenges to the Federal COVID-19 Vaccine Mandates

  • By: Lisa Mickey
  • Published: December 13, 2021

Both the Centers for Disease Control and Prevention [CDC] and the Centers for Medicare and Medicaid Services’ [CMS] fall under the umbrella of the Department of Health and Human Services [HHS]. The Occupational Safety & Health Administration [OSHA], is the agency within the Department of Labor, tasked with implementing rules on workplace safety. Administrative agencies, such as the CDC, CMS, HHS, and OSHA, fall under the executive branch and only have the power to implement the laws passed by our elected representatives in Congress.

The Biden administration attempted to utilize OSHA to force employees of private entities to take the COVID-19 vaccine, without obtaining Congressional approval, arguing that the mandate was necessary to put an end the pandemic and reopen the economy. On November 5, 2021, OSHA announced implementation of an emergency standard, directing employers of over 100 people to either require their employees to get vaccinated or undergo weekly testing and wear masks. The requirements do not apply to employees who work alone, at home, or exclusively outdoors. The administration contends that the mandate was within OSHA’s authority to implement since the vaccine has been effective in reducing hospitalizations and death due to COVID-19. Employers who fail to adhere to the emergency standard potentially faced thousands of dollars in fines every day.

In describing the new OSHA standard, President Biden’s Chief of Staff, Ron Klain, quoted a reporter who described it as “the ultimate workaround for the federal govt to require vaccinations.”  On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a Motion to Stay the emergency standard, stopping OSHA from enforcing the standard. In doing so, the Fifth Circuit Court acknowledged Mr. Klain’s admission that the rule was an attempt to circumvent the Constitution by forcing private employers to pressure citizens on behalf of the government. Judge Kurt Engelhardt wrote:

The Public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions – even, or perhaps particularly, when those decisions frustrate government officials. . .”

The Judge further found that the rule “grossly exceeds OSHA’s statutory authority.” In light of the temporary stay, on November 18, 2021, the Biden Administration suspended the federal vaccine mandate, pending further litigation.

The U.S. District Court for the Western District of Louisiana also granted a nationwide preliminary injunction, immediately halting the federal vaccine mandate put in place by CMS for all employees, volunteers, and contractors working at healthcare facilities. The healthcare professionals who worked tirelessly when the pandemic first struck will thus be spared termination if they have chosen not to receive the vaccine. The injunction will remain in place unless it is reversed following a full hearing.

On December 7, 2021, President Biden’s Executive Order requiring federal contractors and subcontractors to receive the COVID-19 vaccine was likewise struck down by a federal court. Executive Order 14042 required all covered contractor employees to be fully vaccinated by January 18, 2022, or face termination. In issuing the preliminary injunction on a nationwide basis, the US District Judge noted that the injection would “essentially, do nothing more than maintain the status quo; entities will still be free to encourage their employees to get vaccinated, and the employees will still be free to choose to be vaccinated.”

The OSHA vaccine mandate was revived on December 17, 2021, however, when a divided three Judge panel of the US Court of Appeals for the Sixth Circuit dissolved a stay of OSHA’s emergency standard for companies with 100 or more employees. OSHA issued a statement indicating that it would not issue citations for noncompliance with the emergency standard before January 10th or citations for the testing requirements before February 9th, if the employer was making good faith efforts to come into compliance.

Given the conflicting rulings, one of these vaccine mandate cases will eventually be heard by the United States Supreme Court.  The outcome will hinge on the analysis of the seminal case of Jacobson v. Massachusetts, 197 U.S. 11 (1905), in which the Court upheld a $5.00 fine for individuals who declined the smallpox vaccine. There has not been much litigation regarding vaccine mandates since 1905, apart from the 1922 decision of Zucht v King, in which the Supreme Court permitted San Antonio schools to require the smallpox vaccine for students.

Parties who have challenged the COVID-19 Executive Orders and OSHA regulations contend that Jacobson is not applicable to any of the COVID-19 injections because the mandated pharmaceuticals are gene therapy products (“GTPs”), rather than “vaccines,” which traditionally contain a virus or bacteria, which stimulates antibody production in the patient. However, online dictionaries and some webpages of the CDC recently changed the definition of “vaccine” to include GTPs.

From the separation of powers perspective, Plaintiffs opposing the COVID-19 mandates point out that the smallpox vaccine mandate in Jacobson resulted from a state statute enacted by the Massachusetts legislature, whereas the COVID-19 mandates were put in place by unelected, administrative bureaucrats, without explicit Congressional action. This point may appear to be a technicality but could ultimately lead the U.S. Supreme Court to strike down the COVID-19 mandates as unconstitutional, before even reaching the discussion of whether they violate individual liberties.

If the U.S. Supreme Court concludes that the federal administrative agencies of the executive branch implementing the COVID-19 mandates (CDC, OSHA, and CMS) have the power to do so without express Congressional approval, Plaintiffs will then turn to the individual liberty argument. Opponents of the mandate contend that the U.S. Constitution recognizes a fundamental human right to privacy, which includes the right to decline medical treatment. Any effort to intrude on an individual’s right to privacy must be narrowly tailored to achieve a compelling state interest, as recognized by the Supreme Court 60 years after the Jacobson decision. The Court must decide whether an individual’s right to privacy and medical freedom supersedes the state’s interest in forcing all citizens to protect themselves from COVID-19 and reduce the spread of the virus.

Plaintiffs in these cases contend that the facts in Jacobson are distinguishable since the smallpox vaccine was in use for an extended period of time prior to the mandate. By comparison, the FDA only approved the COVID-19 vaccines on an emergency use basis, without conducting any long-term studies. The statute which permits emergency authorization of medications specifically indicates that such treatments may be offered as an option, which patients may accept or decline. According to the CDC, “many vaccines take 10-15 years to reach the public.” It is a testament to the excellence and dedication of medical researchers that 3 different COVID-19 vaccines were developed and underwent clinical trials in the United States in less than one year. By contrast, the first crude smallpox vaccine was developed in 1796. In 1901, there was an outbreak of smallpox in New England, which prompted officials to direct forced vaccination of citizens, which Mr. Jacobson resisted. When the Supreme Court decided Jacobson, there was thus over 100 years of data to attest to the efficacy and long-term safety of the smallpox vaccine, compared to the few months of clinical trials performed on the final versions of the COVID-19 vaccines. It remains to be seen whether the Courts will distinguish the Jacobson case based on the long-history of the smallpox vaccine, or if the Court will reject this difference as reflective of the enormous scientific advances made over the past century.

Parties opposing the COVID-19 vaccine mandate also differentiate Jacobson by arguing that the risks posed by smallpox to the average individual were far greater than the risks posed by COVID-19. Smallpox was a gruesome disease which resulted in high fever, body aches, and a rash which developed into round pustules on the skin, which would form a crust and then scab, leaving scars. According to the CDC, smallpox resulted in the death of 30% of all patients and spread more quickly in children. Donald A. Henderson is an epidemiologist who studied smallpox and launched international vaccination programs. Henderson’s research suggests that smallpox resulted in an average of 5 million deaths annually over the last century. By contrast, the symptoms of COVID-19 range from mild to severe cold symptoms, including respiratory failure and death. Compared to the 30% mortality rate of smallpox, the median infection fatality rate of COVID-19 ranges from 0.00% to 0.31% (median 0.05%)” for individuals under the age of 70, according to a published study of the World Health Organization [WTO]. As reported by Johns Hopkins Medical School, mild or moderate cases of COVID-19 last approximately two weeks for most patients who recover. However, some patients labeled as “long-haulers” suffer from continued, debilitating symptoms, with the virus causing damage to multiple organs. As of December 9, 2021, the CDC’s official death count in the United States for COVID-19 stands at 790,766, over the approximate two-year period since the pandemic began. The WTO estimates annual deaths from COVID-19 at 2.6 million. While these numbers are staggering, opponents of the COVID-19 vaccine mandate assert that these numbers are both inflated and pale in comparison to the death and misery caused by smallpox.

Plaintiffs fighting the COVID-19 vaccine mandate also contend that patients have options other than the vaccine to ward off the symptoms of the virus. Since the start of the pandemic, medical clinicians have been identifying multiple treatments and medications with a long safety history, which are effective in treating patients. The astounding array of therapeutics being utilized to reduce or eliminate COVID-19 symptoms were simply not available to smallpox patients. In Jacobson therefore, the Supreme Court weighed the government’s interest in mandating the smallpox vaccine as the only measure available to save large segments of the population from being wiped out. The government’s interest in compelling the COVID-19 vaccination is obviously diminished if patients have access to alternative treatment methods.

Regardless of the availability of therapeutics which have reduced hospitalizations and death, the Biden administration has taken the position that it is necessary to vaccinate the entire population to eradicate the COVID-19 virus. In response, Plaintiffs point out that vaccination does not stop the transmission of the virus and suggest that the vaccine may instead trigger the mutation of the virus into a deadlier strain. However, an Italian study published in July, 2021 suggests that vaccinated patients who contract COVID-19 have a decreased viral load since they are less symptomatic, thereby decreasing the likelihood of infecting others.  Thankfully, new strains to date [Delta and Omicron] appear to be more transmissible but less deadly, although health officials are still conducting studies on new variants.

Parties opposing the COVID-19 vaccine mandate argue that their fear of the vaccine outweighs their fear of the virus. The relative danger of each is dependent upon the age of the patient and whether the patient suffers from co-morbidities. Although most patients are vaccinated without incident, as with any medication, there are a small percentage of patients who experience negative side-effects, including death, after receiving the vaccine. Statistics are of little solace to the patient who suffers one of these side-effects. The fact sheets provided by two of the pharmaceutical manufacturers, Moderna and Pfizer, indicate that the COVID-19 shots carry the risk of significant heart damage, particularly among young men. The Johnson & Johnson vaccine has been associated with blood clotting in the brain, lungs, abdomen, and legs, as well as Guillian Barre syndrome, a neurological disorder involving the immune system, which causes weakness and inability to move. According to the Vaccine Adverse Event Reporting System [VAERS], as of December 3, 2021, the following responses have been attributed to the COVID-19 vaccines:

Total Adverse Reactions : 946,463

Permanent Disabilities: 32,644

Deaths: 19,886

These figures must be put in context of the 481 million doses which have been distributed since the start of the pandemic. However, it is unlikely that the Supreme Court will discount these risks, no matter how improbable, especially for young people who face relatively little threat from COVID-19. The Supreme Court is also likely to consider that individuals who refuse to be vaccinated have no legal recourse against the pharmaceutical industry if they are injured by a vaccine since the government granted manufacturers immunity from lawsuits.

Americans should take notice of the movement in other countries towards authoritarianism to truly appreciate our Constitution. For example, during the height of the pandemic in China, mothers were ripped from their children’s arms and locked away in government buildings to die. Such totalitarian behaviors have even spread to democratic nations. In Australia, the army shoots rubber bullets at protesters opposing lockdowns and those who test positive for COVID-19 are currently being rounded up and placed in a quarantine camp against their will. Australia recently indicated that citizens would face fines and possible imprisonment if they are not fully vaccinated by February 2022.  Similarly, the German government is reportedly considering fining citizens who refuse the COVID-19 vaccine €3,600 ($4,080) for the first infraction, with escalating fines and possible jail time thereafter. The country of Greece discriminates against citizens based on age, mandating vaccination of all citizens over the age of 60 years by mid-January 2022. Italy established a “health pass” system, requiring citizens to be vaccinated to work or access public accommodations. Latvia has banned unvaccinated elected officials from representing their constituents, even when the Parliament is debating on measures remotely. In our own country, right here in New Jersey, the legislature is currently attempting to strongarm elected officials into taking the vaccine.

The U.S. Constitution will surely be put to the test in the COVID-19 vaccine mandate cases. Those supporting coerced vaccination argue that the Constitution is not a suicide pact – that at some point, an individual’s rights must give way to the needs of the collective. However, America’s Constitution is unique when compared to the governing documents of other countries, in that it specifically does NOT cater to the demands of the collective. Rather, it was designed to protect the rights of the individual against the government and prevent the “tyranny of the majority.”  It remains to be seen whether the U.S. Supreme Court will condone the government’s attempts to protect the health and welfare of the majority, at the expense of individual freedom.

Lisa Pezzano Mickey

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