This video was originally recorded on October 28, 2021.
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Vaccine mandate is perhaps the most contentious issue of the moment during the Pandemic Era.
Proponents of the mandate . . .
Despite a vocal opposition, the U.S. has a long history of mandating inoculation in some form or another. For instance, during the Revolutionary War, then-General George Washington ordered the first mass military inoculation (circa 1777). There's also legal precedent supporting a vaccine requirement. In an obscure case from 1905 (Jacobson v. Massachusetts), the Court upheld Boston’s smallpox vaccine mandate as a constitutional exercise of the state’s "police power." Fast forward to 2020-21, the "Pandemic Jurisprudence" has rested on this 116-year old precedence as it relates to challenges to mask and vaccine mandates.
Opponents of the mandate . . .
Some prominent legal scholars point out that Jacobson v. Mass. should be narrowly construed -- merely to uphold the constitutionality of nominal fines imposed for the un-vaccinated. They also point to a 1927 decision of Buck v. Bell, where the Court upheld the State of Virginia's forced sterilization statutes for the "feeble minded" persons. A series of other controversial cases followed regarding the state-sanctioned medical treatment. In Washington v. Harper (1990), the Court upheld the administering of involuntary medication (i.e., antipsychotic medication) against an incarcerated inmate. In Mills v. Rogers (1982), the Court noted that “the right to refuse any medical treatment emerged from the doctrines of trespass and battery, which were applied to unauthorized touchings by a physician.” In Cruzan v. Missouri (1990), the Court concluded that “the principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.”
Based on the competing narratives, we explored the following:
• Do you agree with the holding in Jacobson v. Massachusetts? In particular, do you agree with the Court's rationale of expansive "police powers" in that "[t]here are manifold restraints to which every person is necessarily subject for the common good"? Or should this precedence be construed narrowly?
• Is there a fundamental right to medical treatment? Conversely, should there be a right to refuse treatment?
• Should the vaccine mandate be given a higher degree of deference in the context of public schools? If so, why?
• Texas Governor Abbott banned vaccine mandate by way of an executive order. It also bans private employers and other entities from imposing the vaccine mandate. Is the State's imposition against a private sector an overreach of a governmental action? Is Gov. Abbot's executive order superseded by the federal mandate?
• The mantra "My Body, My Choice" has been used in both Pro-Choice camps, as well as Anti-Vaccine camps. What are the persuasive justifications and what are the blatant hypocrisies, if any? Further, how does the mantra "My Body, My Choice" apply in the context of the proposed legalization of all controlled dangerous substances (i.e., drugs)?
• What are the similarities and differences to Obamacare's "individual mandate" and the vaccine mandate, if any?
• What are the similarities and differences to the seat belt mandates and mandatory blood extraction for suspected drunk drivers, and the vaccine mandate, if any?
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Optional Reading (for reference purposes only):
▨ Jacobson v. Massachusetts (1905)
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▨ Buck v. Bell (1927)
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▨ Mills v. Rogers (1982)
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▨ Cruzan v. MIssouri (1990)
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▨ Washington v. Harper (1990)
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