Supreme Court’s 1905 decision still holds up
Nicholas Tampio (“A weakness in the case for vaccine mandates,” Ideas, Aug. 29) asserts that a series of Supreme Court decisions that “established a constitutional right to ‘bodily integrity’ — to maintain control over our bodies” undermines the court’s 1905 opinion in Jacobson v. Massachusetts upholding a state smallpox vaccination mandate. But none of the cases Tampio cites questions Jacobson’s holding; most do not even discuss it. And none of them involved a claim that an individual’s interest in their own bodily integrity justified an exemption from a statute of general application intended to protect the public from a grave common danger.
Further, one of the cases Tampio mentions, Cruzan v. Director, Missouri Department of Health, cites Jacobson favorably as “upholding a Massachusetts law imposing fines or imprisonment on those refusing to be vaccinated as ‘of paramount necessity’ to that state’s fight against a smallpox epidemic.” And in Roe v. Wade, the court, treating a post-viability fetus as a legitimate object of state concern, refused to give bodily integrity paramount significance in all circumstances.
At least based on current precedents, therefore, a reasonable state judgment that mandating vaccination is needed to protect society against the great dangers of COVID-19 should be upheld.
David A. Guberman
The writer is the past president of the Jewish Alliance for Law and Social Action.
The issue is when personal decisions affect public safety
In “A weakness in the case for vaccine mandates,” Nicholas Tampio cites numerous Supreme Court decisions that protect personal rights to bodily integrity. However, these decisions are inapt to the question of vaccines because their common feature is that the consequences of the protected choice affect only the individual himself, not the public broadly. Matters change when personal decisions impact the safety and well-being of others. For example, no person, however innocent or wholesome his intentions, can misconstrue the right to dress in the clothes he chooses as permission to wear a suicide vest in public.
Society routinely protects itself from dangers presented by unwise individual behavior. People who intoxicate or impair themselves in legally permissible ways are nonetheless forbidden by law from driving on public ways, despite the fact that not every intoxicated driver will cause an accident. People who might spread infection can be quarantined, whether or not they actually are diseased. This is even true regarding COVID-19, for which close contacts have been required to self-isolate.
Individuals make a choice: Either they get vaccinated or, because they present an unwarranted risk to the health of others, they have their access to public venues limited, much like a quarantine.
The weakness in the ‘bodily autonomy’ argument
Nicholas Tampio argues that the Supreme Court’s 1905 decision in Jacobson v. Massachusetts, upholding the constitutionality of Cambridge’s vaccination mandate “to suppress the evils of a smallpox epidemic,” has little relevance today following dozens of subsequent rulings that give people autonomy over their bodies. Portending today’s debate, pastor Henning Jacobson claimed that the vaccine was dangerous and that he had an “inherent right . . . to care for his own body,” as the justice’s opinion described his argument.
Tampio is correct that there has been a “rights revolution” in 20th-century in American law; however, the bodily autonomy cases he cites are misplaced with regard to whether the government may mandate vaccines as a public health measure “to meet and suppress the evils” of the COVID-19 epidemic. For support, Tampio cites Loving v. Virginia’s ruling that you can “marry anyone regardless of race.” Distilled to its essence, Loving says you cannot be divested of the right to marry in order to uphold the dictates of white supremacy — it says nothing about a right to absolute bodily autonomy and the hell with anyone else.
What’s next, citing Loving for the proposition that “my body, my choice” allows me to drive 100 miles an hour in my neighborhood or dine naked in my favorite restaurant?
The writer is a professor of women’s, gender, and sexuality studies at the University of Massachusetts Boston.
Jamming mandates down people’s throats will backfire
Vaccine mandates prove the maxim, “Just because you can doesn’t mean you should.” Nicholas Tampio’s Ideas piece underscores the legal basis of that, but on the ground where the rubber meets the road, mandates are fraught with problems.
I’ve been fully vaccinated since April, I’ll gladly receive a booster when eligible, and I regard refusing to be vaccinated as foolish. However, I oppose mandates because they’ll be counterproductive the same way Prohibition was counterproductive in eliminating booze consumption in America. Jamming mandatory vaccination down people’s throats will harden opposition, strengthen resistance, and provoke unrest. Look at the opposition to mandates from public employees and health care workers, two groups you need on your side to build a consensus in favor of such measures.
After repeated misrepresentations of the pandemic and the vaccines from the powers that be, opposition was inevitable. Today, given his track record on gain-of-function research, which can make a disease more infectious, and other issues, I wouldn’t believe Dr. Anthony Fauci if he said water is wet.
Arnold Schwarzenegger, former governor of California, had a succinct way of putting the mandate sales pitch: “Screw your freedom!” Given that America is about safeguarding and enhancing freedoms, that sentiment expresses contempt for millions of us.
Instead of blunt-force mandates, back off, show respect, listen more, and lecture less.
Scott St. Clair
At any rate, you gotta love that vaccine for how well it’s worked
Nicholas Tampio writes, “It is another thing to deny constitutional rights to people who do not want to get a COVID-19 vaccine whose efficacy is still unclear.” Efficacy still unclear? Are you kidding? If you ask me, it’s one of the most efficacious vaccines in the history of humankind.
We’re still waiting for an improved public health system to materialize
Nicholas Tampio’s piece on Supreme Court cases as they might pertain to vaccine mandates prompted a reflection on tuberculosis control laws, which also deal with the power of the state to protect public health — if necessary, at the expense of personal freedoms.
George Annas wrote an eloquent essay on this subject in 1993 in The New England Journal of Medicine (“Control of Tuberculosis – The Law and the Public’s Health”). He concluded with a push for a larger federal role in control of infectious agents in the future.
He wrote, “Public health powers are state powers. But neither an individual state nor the United States as a whole can seal its borders from worldwide pandemics.” In his vision of an improved public health system, states would “retain their primary roles in surveillance, reporting, and treatment,” but there would be “leadership and funding at the federal level.”
Too bad we’re still waiting for such a system almost 30 years later.
Dr. Katherine L. Phaneuf