The Supreme Court on Monday refused to block New York’s requirement that health care workers be vaccinated against the coronavirus even when they cite religious objections.
As is often the court’s practice in rulings on emergency applications, its unsigned order included no reasoning. However, The New York Times reports Justice Neil M. Gorsuch filed a 14-page dissent saying that the majority had betrayed the court’s commitment to religious liberty.
Justice Samuel A. Alito Jr. joined Justice Gorsuch’s dissent. Justice Clarence Thomas also said he would have blocked the vaccine requirement, but he gave no reasons.
Justice Gorsuch provided the only real insight into what’s going on at the Court in his dissent, and this seems to be the crux of the matter:
These applicants are not “‘anti-vaxxers’” who object to all vaccines. Complaint in No. 21–CV–01009 (NDNY), ¶ 37(g). Instead, the applicants explain, they cannot receive a COVID–19 vaccine because their religion teaches them to oppose abortion in any form, and because each of the currently available vaccines has depended upon abortion-derived fetal cell lines in its production or testing. The applicants acknowledge that many other religious believers feel differently about these matters than they do. But no one questions the sincerity of their religious beliefs.
And Justice Gorsuch pointed out that the religious exemption requested by the appellants had been in place under one Governor of New York but was intentionally removed by his successor (Kathy Hochul) who said, “we left off [the religious exemption] in our regulations intentionally,” and subsequently claimed that there is no “sanctioned religious exemption from any organized religion” and that organized religions are “encouraging the opposite.” Apparently contemplating Catholics who object to receiving a vaccine, Governor Hochul added that “everybody from the Pope on down is encouraging people to get vaccinated.”
The best summary of Justice Gorsuch’s dissent can be found in this paragraph wherein he cites the Court’s landmark Masterpiece Cake Shop ruling:
The Free Exercise Clause protects not only the right to hold unpopular religious beliefs inwardly and secretly. It protects the right to live out those beliefs publicly in “the performance of (or abstention from) physical acts.” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877 (1990). Under this Court’s precedents, laws targeting acts for disfavor only when they are religious in nature or because of their religious character are “doubtless . . . unconstitutional.” Id., at 877–878. As a result, where “official expressions of hostility to religion” accompany laws or policies burdening free exercise, we have simply “set aside” such policies without further inquiry. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S.___, ___ (2018) (slip op., at 18).
Where were the other alleged conservatives on the Supreme Court on what seems to us to be a no-brainer?
Chief Justice Roberts, Justice Kavanaugh and Justice Amy Coney Barrett were apparently with the three statist Democrats.
We agree with Justice Gorsuch that the Supreme Court’s majority betrayed the foundational constitutional principle of the free exercise of religion, but in a way this should have come as no surprise, as we are reminded that Justice Stephen Breyer turned away a religious challenge to a requirement that healthcare workers in Maine be vaccinated against COVID-19. Breyer's order was the third time the Supreme Court has rejected an attempt to challenge a COVID-19 vaccine mandate. Justice Sonia Sotomayor refused to block New York City's requirement that public school teachers and employees be vaccinated. Justice Amy Coney Barrett in August denied a bid by Indiana University students to block that school's vaccination mandate.
While the issues are slightly different in each case and the Justices did not cite any specific cases in their orders denying the request for injunctive relief there are two early 20th century cases upon which proponents of forced vaccination seem to be relying.
As the National Constitution Center explained in an excellent article by Scott Bomboy:
In 1905, the Supreme Court ruled in Jacobson vs. Massachusetts that under a state law local health authorities could compel adults to receive the smallpox vaccine. Henning Jacobson refused a free smallpox vaccination that was mandated by the city of Cambridge; he was fined five dollars as a result. Jacobson argued the vaccination law violated his 14th Amendment due process rights.
Justice John Marshall Harlan, writing for court’s majority, concluded that states under their general police powers had the ability to enact vaccine laws to protect citizens. Police powers allow a state to pass laws to protect the health, safety, and general welfare of the public. “It is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health,” Harlan wrote.
The second decision, Zucht v. King in 1922, arrived at a similar conclusion. San Antonio, Texas, excluded students from public and private schools who were not vaccinated for smallpox. This included the challenger in the case, Rosalyn Zucht. Her attorneys argued the vaccine policy violated Zucht’s 14th Amendment due process rights. Justice Louis Brandeis wrote in the Court’s decision that “long before this suit was instituted, Jacobson v. Massachusetts, had settled that it is within the police power of a state to provide for compulsory vaccination.”
According to the Congressional Research Service’s most-recent analysis, the general principles in Jacobson and Zucht form the basis for modern vaccine mandate policies, even though the Court’s interpretations of the 14th Amendment have changed since 1922.
Indeed, much has changed in the Court’s interpretation of the 14th Amendment and many other areas of law that might impact whether a COVID vaccine mandate is constitutional.
And how does the practice of forced vaccination square with the Court’s reasoning in Roe v Wade?
In Griswold v. Connecticut, Justice William O. Douglas famously said that a general right to privacy is found in the “penumbras,” or zones, created by the specific guarantees of several amendments in the Bill of Rights, including the First, Third, Fourth, and Ninth Amendments.
“The First Amendment has a penumbra where privacy is protected from governmental intrusion,” the Court said. “While it is not expressly included in the First Amendment, its existence is necessary in making the express guarantees fully meaningful.”
And as Laura Temme, Esq. wrote in an article for FindLaw.com reviewed by Ally Marshall, Esq., “The constitutional right to privacy comes from the Due Process Clause of the Fourteenth Amendment. The Due Process Clause does not explicitly state that Americans have a right to privacy. However, the Supreme Court has recognized such a right going all the way back to 1891. Just one year before Roe, the Supreme Court held that ‘in a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed’.”
"While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390, 399 . In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed. See, e. g., Bolling v. Sharpe, 347 U.S. 497, 499 -500; Stanley v. Illinois, 405 U.S. 645 . [408 U.S. 564, 573]
Indiana, where Justice Coney Barrett used to teach law at The University of Notre Dame, adopted a eugenic sterilization law, America's first in 1907. And as NPR reported, in 1927, the U.S. Supreme Court decided, by a vote of 8 to 1, to uphold a state's right to forcibly sterilize a person considered unfit to procreate. The case, known as Buck v. Bell, centered on a young woman named Carrie Buck, whom the state of Virginia had deemed to be "feebleminded."
The Supreme Court has never held that forced sterilization is unconstitutional. We wonder if the same rationale used in Jacobson and Zucht could be used to justify forced sterilization, or even, as has been practiced in Red China, forced abortion?
A lot has changed since the early 20th century and the days of forced sterilization and prohibitions on contraception and abortion, so, if Roe v. Wade and Griswold v. Connecticut remain good law, how can forced vaccination stand the privacy tests set forth in the decisions of those two cases?
And if the right to bodily privacy that would protect one from forced vaccination does not exist, and one cannot refuse to be vaccinated based on the exercise of that right, how can Roe remain good law? And what would prevent a state from engaging in forced sterilization or abortion under the same public health theory propounded in Jacobson and Zucht?
So, does the pandemic suspend the entire Constitution, or just the right to the free exercise of religion and bodily privacy? Surely the State stepping in to act as the arbiter of religious dogma, as New York's Democrat Governor Kathy Hochul did is as direct a violation of the First Amendment as you could get.
What's more, it seems clear to us that under the reasoning of Roe v. Wade and Griswold v. Connecticut either Roe v. Wade can stand or forced vaccination can stand, but unless the law is merely the personal preference of a majority of the Supreme Court, both cannot stand.
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