By David G. Bjornstrom

Government Vaccine Mandates versus the Right to Privacy

December 1, 2021
Column: Catching Air
I never thought I would say this, but maybe Roe v. Wade got just one thing right. After all, even the biggest lies generally contain just a grain of truth to make the lie seem more plausible.
Roe was decided in 1973 based on an implied “right to privacy” under the U.S. Constitution that cannot be restricted without a “compelling state interest.” You know, “my body, my choice.” The lie in Roe, of course, was to ignore the unborn baby… a tiny person with a body and compelling rights of his or her own to be protected.
While no right to “privacy” can ever justify killing a baby, it may, in fact, say something about the validity of government Covid vaccine mandates.
The Supreme Court’s 1990 decision in Cruzan v. Missouri Department of Health emphasized that a competent person has a constitutional liberty interest in refusing unwanted medical treatment. This is based on the common-law right to informed consent and constitutional right to privacy.
The Court in Cruzan quoted from the late Justice Cardozo, stating that “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault.”
This is sometimes referred to this as the right to “bodily integrity.”
This is not to say that the government can never mandate any medical procedure at all, but it can only be done when there is a truly compelling reason and when there are no other, less intrusive alternatives.
The Court in Cruzan referenced the 1990 case of Washington v. Harper, which allowed anti-psychotic medication to be forced upon a prisoner, but only after he first received individualized psychiatric care and after a formal evidentiary hearing proving that he was mentally ill and gravely disabled or dangerous.

Is the government’s best legal argument for vaccine mandates to treat us like mentally ill prisoners?

There are many who argue that vaccine mandates were approved in the 1905 Supreme Court case of Jacobson v. Massachusetts. However, Jacobson was not a true “mandate” since the law in that case merely imposed a $5 penalty for any person refusing the vaccine (approximately $140 in today’s dollars.) The Massachusetts Supreme Court admitted that it was “not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of $5.”
Supreme Court Justice Gorsuch, in the 2020 case of Roman Catholic Diocese v. Cuomo, stressed that Jacobson was a “modest decision” based on a now-outdated mode of Constitutional analysis, “not a towering authority that overshadows the Constitution during a pandemic.”
In any event, Jacobson is more than 100 years old and it predated the legal focus on privacy and bodily integrity developed more recently in Roe and Cruzan. The right to make one’s own medical decisions, including to refuse vaccination, are fundamental rights that the government cannot restrict without first proving a very compelling justification and lack of any reasonable alternatives. With nearly 40% of our country still choosing not to be fully vaccinated and reputable medical professionals on both sides of the issue, there is no settled consensus for universal vaccination, especially when government agencies themselves admit that vaccinated people can still get Covid and pass it to others.
Besides, there are less draconian alternatives to vaccine mandates, including simple health questionnaires, temperature checks, masks and possible quarantine for anyone with symptoms or exposure to Covid. It might be argued that nasal swab tests are a less intrusive alternative, but that test is itself an intrusive procedure that can be refused under the same right to privacy and bodily integrity.
In any event, if testing is required, it would be unfair and discriminatory not to require the vaccinated to be tested as well, since a person who is vaccinated but untested is probably more likely to have (and spread) Covid than someone who is unvaccinated but proven not to have Covid by a negative test. 
Some have argued that workplace vaccine mandates do not force anyone to get vaccinated since the person can simply choose to work elsewhere or not work at all. However, that ignores the obvious reality that job changes are usually quite difficult and may be impossible, especially if other employers have the same mandates, and most people need their job to feed and house themselves and their families. “Vaccinate or starve” is no real choice at all.

What about mandates for school-aged children?

Government-imposed Covid vaccinations for children to attend school are similarly objectionable.
The Supreme Court approved a state vaccine mandate for school children in the 1922 case of Zucht v. King, but that was long before the modern focus on privacy rights and the right to refuse unwanted medical treatment. Childhood vaccines in 1922 also related to diseases that were far more dangerous for young people than Covid, such as small pox and yellow fever.
It is patently unfair to subject young people to a newly developed, short-lasting and potentially risky vaccine against a disease like Covid that poses no serious risk to their age group under the flimsy pretext of protecting older adults.
You know, my body, my choice!

David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »

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