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The Vaccine Fight – A lawsuit ongoing – The Health Care Blog

The Vaccine Fight – A lawsuit ongoing – The Health Care Blog

  • October 7, 2021


The power to prescribe vaccines was challenged and resolved over a century ago. Judge John Marshall Harlin, a favorite of current Chief Justice Roberts, penned the 7-2 majority opinion in 1905 Jacobson versus Massachusetts. Its effect was epic.

In 1905, Massachusetts was one of 11 states that required vaccinations. Rev. Henning Jacobson, a Lutheran pastor, challenged the city of Cambridge, MA, which passed local law requiring citizens to vaccinate against smallpox or pay a $ 5 fine. Jacobson and his son claimed they had previously had bad reactions to the vaccine and refused to pay the fine because they believed the government was denying them the rights to amendments XIV.

When deciding against her, Harlan wrote, “Freedom for all could not exist on a principle that recognizes the right of every individual to use his own” [liberty]… ”

The right of a state to adopt mandatory public health measures does not, of course, require this. In fact, as we have seen in Texas and Florida, among others, they can do just the opposite – make life-saving mandates (for masks or vaccines) illegal. At least 14 states have already passed laws banning employer and school vaccination mandates and punishing penalties in Republican-controlled states.

So government powers are clearly a double-edged sword when it comes to health care.

Does anyone have questions?

Does the federal government have the power to come to the rescue?

NO. Previous judgments relate specifically to the rights of states. These include the 1922 decision Breeding v. kingwhere the decision supported the right of a local public school district to require vaccination for school admission. With this decision, Judge Louis Brandeis wrote: “In accordance with the federal constitution, a state can delegate to a local authority the conditions under which health regulations should apply.”

Can the federal government force you to get vaccinated in the US (except for religion and disability)?


Isn’t that what you do with a mandate?

NO. A vaccination mandate means that the government “makes a condition for returning to society or participating in a specific activity”.

If a state doesn’t mandate masks, distancing or vaccines and a company decides to do so, is it legal?

With appropriate exceptions for religion and disability, legal scholars believe YES when it comes to protecting employees and customers, although this has yet to be assessed.

If a shop asks me on entry if I have been vaccinated, it is a HIPAA Violation?

NO. HIPAA regulations restrict hospital and health workers, not shop workers.

Doesn’t the First Amendment give me the right to refuse vaccines?

NO. Corresponding Legal scholar: “According to the First Amendment, the freedom to believe in a religion is absolute. However, the freedom to act in accordance with religious beliefs remains ‘to protect society under regulation’. “

Didn’t the FDA require “Emergency Use Authorization” for vaccine mandates?

NO. This authorized the vaccine to be sold and distributed, but did not require anyone to use it.

Is President Biden doing everything within executive powers to protect Americans from the pandemic?

Legal expert, Professor of Law at Georgetown Lawrence GostinSays “Yes.” While states have nearly the power to protect public health, the powers of the federal government are limited … (Biden) is acting entirely lawfully under those powers.

1. The President “uses his executive powers to order vaccinations for federal workforce. (This includes members of the military.)

2. He uses his purchasing power through Medicaid and Medicare to ensure vaccination requirements in healthcare.

3. And he uses the Occupational Safety and Health Act to prescribe vaccinations in all companies with 100 or more employees. All of this is conveniently in the power of the President. “

Biden could go further and seek to extend compliance by providing financial rewards to states that mandate vaccines or through the trade clause restricting interstate travel to non-mandated states, but that would certainly lead to expanded legal challenges. Federal law under Title VII of the Civil Rights Act of 1964 and Title I of the Americans with Disability Act In addition, for religious and medical reasons, exemptions for vaccinations must apply. (National, less than 1% have made use of these exceptions.)

As for states, it’s a messy business. During the Texas Governor Abbott, the stands of the Texas Federal District Court Bridges et al. against the Houston Methodist Hospital denied any of the 117 employees who were suspended and threatened to quit if they refused to be vaccinated. The decision was: Plaintiffs “are free to choose to accept or reject a COVID-19 vaccine; Anyway if [they] refuse, [they] just have to work elsewhere … All employment involves restrictions on the employee’s behavior in return for his or her wages. That’s all part of the bargain. “

In another recent case U.S. Court of Appeals for the Seventh District in Indiana, and the Supreme Court on an appeal refused relief eight Indiana University students were banned from attending for refusing to keep the required vaccinations. The students had chosen not to apply for a medical and religious exemption from the university, which, if granted, would allow entry with masks.

States generally require incoming students to have proof of current vaccines to prevent this from happening 11 teething problems.

Over a century ago, the battle for vaccines was no less heated than it is today. A Editorial of the New York Times at the time of the Jacobson decision of 1904 described the dispute as “a conflict between intelligence and ignorance, civilization and barbarism”

On the “intelligence” side, Nearly 60 leading medical organizations issued a joint statement on July 22ndnd to support mandatory vaccines for all healthcare and long-term care workers as a “logical fulfillment of ethical obligations” towards patients.

Mike Magee, MD is a medical historian and health economist and author of Code Blue: Inside the Medical Industrial Complex.

Categories: COVID-19, Health Policy, Public Health

Tagged as: Biden, Code Blue, COVID Vaccine, COVID-19, COVID-19 Vaccine, covid19, Joe Biden, Mike Magee, the First Amendment, Vaccines

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