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Who ‘Deserves’ Health, Who ‘Deserves’ Freedom? A Recurrent Divide in SCOTUS Vaccine Mandate Cases

By Wendy E. Parmet

In October 2020, Martin Kulldorff, Sunetra Gupta and Jay Bhattacharya issued what they called the Great Barrington Declaration (GBD). In it, they argued that “The most compassionate approach [to the pandemic] … is to allow those who are at minimal risk of death to live their lives normally to build up immunity to the virus through natural infection, while protecting those who are at highest risk. We call this Focused Protection.”

Eighteen months and over 600,000 additional deaths later, the Supreme Court embraced that view.  On January 13, in Missouri v. Biden (Missouri), the Court by a 5-4 vote refused to stay a Centers for Medicare and Medicaid (CMS) rule requiring health care workers in facilities that participate in Medicare or Medicaid to be vaccinated against COVID-19 (subject to legally-required exemptions) in order to protect patients. In contrast, in National Federation of Independent Business v. Department of Labor (NFIB), the Court by a 6-3 vote ruled that the Occupational Safety and Health Administration (OSHA) likely exceeded its statutory authority by requiring employers with over 100 employees to mandate vaccination (subject to required exemptions) or masking and testing.  The per curiam majority stated: “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” Concurring, Justice Gorsuch added that a broad reading of OSHA’s authority would “enable intrusions into the private lives and freedoms of Americans.”

Although each case was technically about statutory construction and separation of powers, the juxtaposition of the two rulings suggests that the Court, like the GBD’s signers, accepts those who are old or have medical disabilities merit special protections, while workers do not. Or, to be more precise, the Court was willing to read CMS’s statutory authority to encompass a vaccine mandate because CMS protects patients. But it would not read the Occupational Health and Safety Act as authorizing a vaccine mandate without explicit Congressional authorization because it saw the risk to workers as universal. Workers, it seems, merit freedom rather than protection.

The Court has held similar views before.  Indeed, the Court’s disparate rulings in NFIB and Missouri bear more than a striking resemblance to two famous 1905 decisions: Lochner v. New York and Jacobson v. Massachusetts. In Jacobson, Justice Harlan’s opinion for the Court accepted that a Cambridge, Massachusetts law mandating that all residents be vaccinated against smallpox was a reasonable means of protecting the public’s health. In so doing, he recognized that smallpox posed a danger to everyone and that individual decisions could harm others. “Real liberty,” he explained, sometimes requires restraints on individual choice.

Three months later in Lochner, Justice Peckham’s majority decision distinguished Jacobson, holding New York’s maximum hours law for bakers was a “labor law, pure and simple,” despite the state’s contention (and the lower court’s finding) that the law would  protect workers (and the public) from respiratory and other diseases. To Peckham, like the Court in Missouri, workers were not a special class meriting protection. Hence, a law that protected them infringed upon their freedom.

Although both Lochner and NFIB relied on a distinction between public health and occupational health, there are significant differences between the two cases. Both distinguished public health from occupational health, but to different ends. In Lochner, the Court’s finding that New York’s law was a labor law doomed it; in NFIB, the Court’s finding that OSHA’s regulation was a public health measure doomed it.

This relates to another distinction. Lochner reviewed a state law; NFIB a federal regulation. Without saying so, the NFIB Court seems to have adopted a type of dual federalism in which federal agencies need explicit Congressional authorization if they regulate, at least in a “major” way, matters traditionally left to the state’s police power. Justice Gorsuch stressed this point in his concurrence, noting “[t]here is no question that state and local authorities possess considerable power to regulate public health.” But Gorsuch’s respect for the state’s police power should not be taken at face value. The Court has blocked numerous COVID-related state laws on First Amendment grounds, and although the majority has not intervened in a state vaccine mandate case, Gorsuch has urged it to do so.  He may distinguish public health from occupational health, but to him, even the former must give way for those who are not especially vulnerable.

That is just how the GBD’s signers and many Americans (though perhaps not as many as the media often portrays) would now have it. In the pandemic’s third year, the CDC has doubled down on the assertion that COVID should largely be left to individual choice, leaving people at low risk “free” to dispense with precautions, while those at “high risk” are urged to consult their “healthcare provider about additional precautions.”

Unfortunately, the distinction between those who “deserve” special protection and those who “deserve” freedom is not as clear or indelible as the Court seems to assume. That’s not only because millions of people are at high risk of COVID-19 due to age or health status (the type of factors that the Court seemed to accept in Missouri). It’s also because risk is impacted by social conditions, including poverty, housing, structural racism, education and occupational status (the factors the Court would not accept in NFIB).

It is also because those to whom the Court would grant extra protection will inevitably be harmed by an approach that limits mitigation to them alone. If more virus spreads in the community, they will pay the steepest price in terms of their health and their liberty. They are also likely to bear the brunt of the inevitable challenges to other occupational regulations that will be filed in the wake of NFIB. Many occupational risks, after all, can also be framed as universal. If those protections, too, fall, the most vulnerable will, as always, be the most vulnerable.

Yet, precisely because risk is social, neither viral surges nor escalating occupational injuries will evade those deemed deserving of “focused protection.” As Jacobson reminds us, real liberty requires that we recognize the impact of our actions on others. In 2022, such liberty seems elusive.

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