Zywicki vs Wade

I assume by “most relevant precedent” you mean Jacobson v. Massachusetts, 197 U.S. 11 (1905).

If you don’t get vaccinated, you will pass this virus on, and it may mutate into something worse, and you could get sick and even die.

Why should he think he is immune? We don’t know how long immunity lasts. Some who were sick get reinfected anyway. Some vaccinated are getting infected anyway, and passing it on.

I am not a lawyer, but the opinions in Griswold v. Connecticut also cite the 9th and 14th Amendments.

Off-topic question: why does JQ, an Australian, know so much more than I do about USA politics and policies? I guess the answer is probably he works much harder at it.

I would (probably wrongly) think that the reason Z should lose his case is that it involves a contract between him the employee and GMU the employer and if he doesn’t like the requirements of said employment he is free to quit. (Given that the requirement is a reasonable one scientifically and morally, which I believe it is.) (Speaking as someone who had a mild case of Covid in May of 2020 and got vaccinated this year as soon as I could get a local appointment.) No doubt Z does not accept this personally, but I think I’m where the will of the majority is, and that’s democracy. (And no, we don’t have one, but are closer to one than to Z’s anarchy.)

The factual part of Zywicki’s case is that having had the disease and recovered he is already immune.

Well, this is not “factual” on a medical basis; the clinical evidence gathered so far is that naturally acquired immunity seems to be less effective and shorter lasting than the vaccination.

I am honestly glad that this sort of toxic libertarian “my individual rights trump everyone else’s” nonsense wasn’t widespread in the past or we’d still be facing annual polio and smallpox outbreaks, our graveyards would still be getting filled with children dying of diphtheria, measles, etc etc etc.

If he wishes to proclaim his individual rights as supreme in all matters, he’s cordially invited to exit himself from society, if the requirements of being part of a society are so terribly onerous.

Lee A. Arnold et. al. –

It seems that once you argue that someone should get vaccinated for the benefit of society at large that opens the door to a number of similar calculations. Is there any sort of limiting principle to your argument? Should people be obligated to subject themselves to any medical procedure provided the benefit to society is high enough?

As has already been noted, the (Constitutional) right to privacy didn’t originate with Roe v. Wade. In terms of SCOTUS precedent, it goes back at least to the contraception cases (Eisenstadt v. Baird and Griswold v. Connecticut). The ur-article is Warren and Brandeis, “The Right to Privacy,” Harv. L. Rev., 1890.

Exhibit eleventy trillion that rightwingers are full of shit.

I Am Not A Lawyer …

The opinions of some people who are (and who agree with you about the likely outcome) are quoted here:
https://news.bloomberglaw.com/daily-labor-report/antibodies-wont-exempt-workers-from-jab-mandates-observers-say

I get the right to privacy that entails risk of self-harm by endangerment of oneself–free-climbing shouldn’t be prohibited by law especially for trained individuals. But one reason for seat-belt laws (e.g.) is that failing to have and enforce them for similar anti-paternalistic reasons for a particular careful unbelted driver just encourages too many others to accept that risk without any reflection or care as to their driving behavior. Seat belt laws collectively save lives; vaccines do too for similar reasons. I wonder if Zywicki obeys seat belt laws. If he doesn’t, well then perhaps too bad for him if he “contracts” a horrible accident. If he does, then it’s probably because he worries for himself about all those other bad drivers. But also apparently he doesn’t care if those drivers might kill unbelted others if his reasoning is parallel here.

I have come to the conclusion that, at some level, these anti Vax arguments are trolling the left.

I believe Peter Dorman captures the difference between abortion and vaccination quite nicely, for us non-lawyers.

In the case of seat belt laws, I’ve always thought that you could make the case that un-seat-belted drivers and passengers drive the cost of emergency services and insurance up. I suspect the argument, “Unbelted drivers and passengers make your insurance bill higher,” would resonate more than “Seatbelts prevent unnecessary death, injury and suffering,” with the Reason crowd, but then, I’m not a libertarian.

I believe that the proper response to this sort of thing from someone who supports at will employment is, “Tough shit, bud.” I have no idea if Zywicki fits that description.

jsrtheta @1 has already cited to the Jacobson case which held that mandatory vaccination did not offend the constitution. The US 7th Circuit Court of Appeals just upheld Indiana University’s covid vaccination requirement, relying upon Jacobson. The plaintiffs were making a 14th Amendment argument similar to that of Zywicki. https://www.abajournal.com/news/article/7th-circuit-sees-no-constitutional-problem-with-indiana-universitys-vaccine-requirements

As the 7th Circuit pointed out, if you don’t want to be vaccinated you are free not to attend Indiana University. Zywicki, being of a libertarian ilk, probably supports “at will” employment, freedom to contract and all that. He is not being forcibly vaccinated (or convicted of a crime for refusing like Jacobson), it is a condition of his employment. He can seek other employment more in tune with his beliefs.

In cases like this, where a near-frivolous legal claim is made, I suspect the true purpose of the suit isn’t legal relief. It’s a public performance of claimed persecution followed up by a GoFundMe campaign and a speaking tour.

Zywicki will almost certainly argue at some point that the vaccines don’t provide sterilizing immunity and a person with antibodies — whether via vaccination or from previous infection — can, with Delta, still carry a viral load and infect others.

Unfortunately, he’ll be correct.

Hence, he’ll then argue that GM’s vaccine mandate is an arbitrary, useless abuse of power.

Now, my impression — or guess, frankly — as I watch the emerging statistics is that because (a) Delta produces viral loads more than 1,000 times greater than previous variants, that is strongly correlated to its increased transmissibility and the breakthrough cases, and (b) the vaccines still act to mitigate and lessen viral loads of Delta and, consequently, transmission of the virus — but it can be argued that (b) is not the case; I certainly haven’t seen conclusive data on this yet (if others here have, please link to it).

In any case, that’s where this is going. The anti-vaccine “resistance” is increasingly adopting that as its position.

@Tm –

Lest the remainder of this comment be taken for anti-vax trolling, let me say it loud and clear: Vaccines save lives. Get vaccinated, people, please! That said…

“Obviously, what is necessary and what is an undue burden will be contested.”

And that’s the sticking point, isn’t it? I happen to agree with you that vaccination poses a de minimis burden. But at the same time there appear to be lots of jurisdictions that provide for religious exemptions to vaccine requirements. Some of those exemptions are required by law, for sure, but their existence also indicates that some non-trivial segment of society believes that vaccination requirements impermissibly burden the exercise of religion. Clearly, they and we are in disagreement vis-a-vis burden, and I don’t see an obvious way to break the impasse.

To take an even thornier example, what about the forcible medication of the mentally ill? There are lots and lots of people who are against this practice. At the same time, however, its not terribly difficult to come up with a plausible argument in favor of the practice which passes your “burden vs. benefit” test.

Balancing an individual’s burdens vs. the benefits to society requires making trades-offs between things which are subjective and/or incommensurable. How many QALYs does it take before we can abridge someone’s autonomy, or diminish their dignity? I am highly doubtful of the proposition that, outside of certain highly-circumscribed scenarios, a third party can make these sorts of decisions for someone. And its certainly not a function that government is competent to exercise. Which is why, despite the fact that I think vaccines are 100% awesome, I’ve (reluctantly) decided that I can’t support vaccines mandates.

I would be happy for you to convince me that I’m wrong. If you feel up to the challenge demonstrate that the benefits outweight the burdens in the case of Zwyicki. In particular, show how you calculate the incremental benefit to society given that he already has partial immunity, and how you trade this benefit off against his dignity/bodily autonomy interests.

I think the animating sentiment here is not focused on the merits of particular issues, but a more general ‘Rule or Ruin’ – since they lack the numbers to rule within the current system, they will seize on any and every possible means of ruin.

Technically, it was a truly abominable opinion. Of course, that doesn’t make it wrong.

It is possible for a later Supreme Court opinion to determine that an earlier Supreme Court case was ‘wrongly decided’; therefore, it would be in line with the way legal procedure works to argue, in a Supreme Court case, that an earlier case was ‘wrongly decided’. I’ve never read the opinion in Roe v Wade at all, but if there are features in it that would justify describing it as technically abominable, those features could be used as a basis for an argument (to the Supreme Court) that it was ‘wrongly decided’ (although it obviously doesn’t automatically follow that a Supreme Court majority would rule in favour of such an argument).

GG 29: As I said, vaccine mandates already exist, have existed for a long time, and have been found permissible by democratically legitimate governments and by independent courts in countries that have liberal legal traditions and strong human rights guarantees.

Of course you are still entitled to disagree and come to a different conclusion, and that is an entirely legitimate point of view. Your argument simply seems unconvincing to me because as I read it, it could be used to preclude almost any legal requirement that even somewhat diminishes individual autonomy, from seatbelt laws to health insurance mandates and what not. I don’t really see what supposedly makes vaccination so special compared to all the other things that we are reasonably required to comply with for society to even function. Getting a jab in the arm once or twice a year really isn’t that much of a burden – it just isn’t. Especially if it’s part of a job requirement. Have you ever been forced to do something against your will because your job required it? Of course you have, everybody has!

Not to mention the many requirements that some of us are unreasonably subject to. Many US states already require women seeking an abortion to undergo medical procedures against their will. Just as an example that somehow doesn’t interest the critics of vaccine mandates. What is mystifying is why this debate about vaccine mandates comes up now as if vaccination somehow were an entirely new procedure. There seriously are people out there who claim that they don’t need vaccinations, and yet most of them are vaccinated against polio and tetanus and many other diseases.

Finally. Most states reserve the right to draft citizens into the army and force them to be ready to sacrifice their lives and kill others. It is hardly ever even disputed that the state has the power to demand this, and yet we are discussing whether a safe and beneficial jab in the arm for the good of society is too much to ask for. It is understood that during an emergency, such as war, the calculus about individual rights and responsibilities changes. The Covid pandemic is a public health emergency. Sadly, it now looks as if that emergency has to get much worse again and kill a whole lot more people before society is finally ready to treat is as the emergency it is.

I dunno. Does everybody really have to be suing everyone over everything? Should I sue anybody who is suing somebody over something?? We’re lost in an epidemic of pointless melodrama, and I intend to sue the pants off of whoever is responsible!!!

@28

“GMU is a public university”

True enough, but GMU is not proposing to take from Z his life or liberty by requiring him to be vaccinated or face criminal prosecution. Z has a right to his life and liberty. He does not have a right to govt employment.

Employment, govt or otherwise, comes with conditions that the employer has wide latitude to set. A govt employer is a bit more constrained in setting conditions in that it is more closely bound to not set conditions that discriminate against any race, creed, or color, but any public accommodation faces similar restrictions. This includes not setting conditions which avoid explicit discrimination, but which a court can discern are mere pretexts to achieve in practice discrimination against a protected class.

Last I heard, folks who claim to know better than public health authorities how to respond to COVID do not constitute a protected class, so I don’t see that a court even has to begin to address the issue of whether Z or the CDC has a better handle on epidemiology and virology. Public health is a political question if ever there was one, and the only place for courts in interfering with the political branches over public health is if an individual can present a reasonable facial presentation that a govt restriction is merely pretending to be a public health measure, but is actually put in place to discriminate against a class of individuals.

“I’m more interested to see how, if at all, the large group of rightwingers who oppose both vaccine mandates and Roe v Wade will react to this case.”

If you’re expecting any sense of shame to keep them from championing Z’s rights to live free by “His body, his choice.”, don’t hold your breath.

Their idea is to indict our side for hypocrisy by making a martyr of Z over his desire to make his own choices concerning his body. The best counter to this is that Z has a right to life and liberty, but no right to govt employment. If abortion is criminalized, the state takes from women life and liberty if they have an abortion, it doesn’t merely deny them employment. These are very different things the govt imposes in these two cases. These two cases are very unlike each other.

What they are getting at is to make vaccine denial define a protected class. They want to portray making someone get vaccinated as a condition of govt employment as a sort of Test Act. Z is asserting his right to identify as a conservative, or libertarian, or whatever label his belief system goes by as a tribal identifier, and the Deep State, secular humanist state religion is trying to make him spit on the Cross, or toss some incense into the fire, just as we did with the Christian martyrs millenia ago. That’s how these people wish to characterize getting the vaccine, obeissance to the state religion. Of course, as followers of a different creed, one that defies the state religion, they cannot be denied govt employment.

Don’t humor them by arguing against this stand as if it were intelligible as a legal issue. They’re just nuts.

Balancing an individual’s burdens vs. the benefits to society requires making trades-offs between things which are subjective and/or incommensurable. How many QALYs does it take before we can abridge someone’s autonomy, or diminish their dignity? I am highly doubtful of the proposition that, outside of certain highly-circumscribed scenarios, a third party can make these sorts of decisions for someone. And its certainly not a function that government is competent to exercise. Which is why, despite the fact that I think vaccines are 100% awesome, I’ve (reluctantly) decided that I can’t support vaccines mandates.

Mary Mallon spent the last two decades of her life in isolation because when she wasn’t kept in custody she worked as a cook and gave people typhoid. At one stage she did promise not to work as a cook, but she broke that promise. Do you not think that preventing me from infecting people with typhoid justifies detaining me? This is a decision that by definition can only be made by a third party and in practice that third party can only be the government.

Detaining people the way Mary Mallon was detained really would abridge those people’s autonomy and invade their dignity (and yet still be justifiable). Forcibly vaccinating people would also abridge their autonomy and invade their dignity; but creating a requirement for people to be vaccinated before engaging in stipulated activities or performing designated functions does not. Some people don’t want to get vaccinated? Well, they may be free not to get vaccinated, but that doesn’t mean there shouldn’t be a list of things which they can’t do while unvaccinated. Is it an abridgement of autonomy or an invasion of dignity to require serving armed forces personnel to accept service discipline? Well, perhaps some would argue that it is; but in any case, it’s not the same abridgement of autonomy and invasion of dignity for those free to leave the service as it is for those compelled to serve. Why shouldn’t vaccination be an acceptable condition for continuing to serve? It’s no more of a burden than many other compulsory requirements of service discipline; and what is true of service in the armed forces is true of many other things. You’re a police officer and you don’t want to get vaccinated? Perhaps you won’t be forcibly vaccinated, but that doesn’t mean you should be allowed to continue as a police officer unvaccinated. You’re an airline flight attendant and you don’t want to get vaccinated? Perhaps you won’t be forcibly vaccinated, but that doesn’t mean you should be allowed to continue as a flight attendant unvaccinated. You care for children, or wait table, and don’t want to get vaccinated? Perhaps you won’t be forcibly vaccinated, but that doesn’t mean you should be allowed to continue in your job unvaccinated. Where’s the abridgement of autonomy or invasion of dignity in imposing requirements relevant to the job on people who want to hold it (and to continue holding it)?

@J-D

Not an expert on this by any means, but if you look at the Sup Ct’s abortion jurisprudence over the last 30 years or so, I think you’ll find that Roe has been undercut quite a bit even though it’s still on the books as Sup Ct precedent, never having been formally overruled, at least not yet. Certainly it’s true that in some U.S. states now it’s extremely difficult to get a legal abortion, so the facts on the ground in some states have become very unfavorable for the pro-choice side.

There are cases in the pipeline now, I think, in which some of the parties do argue and will be arguing to SCOTUS that Roe was wrongly decided, though they won’t phrase it as “this was a technically bad opinion, therefore it should be overruled.” The current composition of the Court is such that there may be the votes to overrule Roe, but the right-wing Justices may prefer to keep undercutting it without explicitly overruling it. Except for Justice Thomas, who I think would be happy to overrule it tomorrow, and probably Alito as well.

I am surprised that no one is making an analogy from compulsory vaccination to conscription. If the USA can conscript you to risk your life in defense of the country–a risk in some circumstances so great that is a virtual certainty of death–it can certainly mandate that you take the much lower risk in getting vaccinated. If a remarkably high risk of death–like that experienced by the first wave of troops to land on Omaha Beach in the face of long-prepared German countermeasures–isn’t an undue burden, then getting vaccinated certainly is not. While today we have a professional army, the American government still has conscription laws on the books and maintains the necessary infrastructure to re-activate forced military service (something those of us who came of age in the 1960s and 1970s remember all too well). Surely insisting on compulsory vaccination is a far, far lower bar to clear.

46: Mutation is a random process. It is always possible that a new virus variant emerges that is more dangerous than the existing ones. (That is possible for other viruses, as well, e. g. flu.) But we have no idea how likely that event is and baseless speculation isn’t helpful imho.

Breakthrough infections occur but at a far lower rate than infections of unvaccinated individuals. The tremendous effectiveness of the vaccines in preventing infections, hospitalizations and death are empirically proven way beyond any reasonable doubt.
E. g. https://www.nytimes.com/interactive/2021/08/10/us/covid-breakthrough-infections-vaccines.html

So in conclusion, let’s all throw up our arms, give up and announce that fighting the epidemic is pointless. In other news, we’re all gonna die anyway. Also, a giant Meteorite might hit any moment. /Sarcasm off.

Might also be interesting to some:

Vaccine mandates are coming. Catholics have no moral reason to oppose them.
https://www.americamagazine.org/faith/2021/08/10/covid-vaccine-mandate-exemptions-voluntary-ignorance-241196

“In fact, if a Catholic decides that it would be wrong to receive a Covid-19 vaccine, they are in opposition to the church’s magisterial determination that receiving the vaccine is not only morally acceptable, but also, according to Pope Francis, constitutes a moral obligation in order to protect one’s own health and safeguard the common good. Hence, the Archdiocese of New York recently instructed its priests not to grant religious exemptions for Covid-19 vaccines.“

“ Public health interventions, on the other hand, operate by a complementary but distinct set of ethical principles, in which respect for individual autonomy is attenuated by the moral imperative to protect others from harm. With respect to Covid-19, the epidemiological data clearly demonstrates that the recent rise in infections and deaths, as well as the mutation of the virus into new and more dangerous variants, is correlated with lower levels of vaccination within a population. Choosing not to be vaccinated, unless one has a legitimate medical reason, violates the foundational harm principle of public health ethics. The principle of least restrictive means calls for governmental and institutional authorities to utilize measures to reduce or eliminate harm to others that impinge least on individual autonomy.”
“While, according to Aquinas and as the church continues to teach, every individual should follow their conscience, even if their conscience is in error, doing so does not excuse one’s subsequent behavior if one’s conscience is misinformed by voluntary ignorance.”
“ Governmental and institutional authorities, exercising their rationally informed conscientious duty to safeguard the common good, are not obligated to respect the misinformed consciences of individuals who refuse a demonstrably beneficial vaccine when their refusal threatens to impose excessive risks and burdens on not only themselves but their community.”

You have to give it to the Jesuits – they are capable of clear thinking.

David Duffy #42: “Lee Arnold says”

The quotation is from GG #29.

Tm @35 / notGoodenough @ 38 / J-D @ 41 –

Thank you all for the thorough and thoughtful replies. I recognize that there’s lots of case law, custom, etc. in democratic countries which support the concept of vaccine mandates. Tradition is tradition, the law is the law, and I’m not arguing explicitly against either.

Rather, what I wrote was in response to Lee A. Arnold’s early comments (@3 and @4) and Tm’s subsequent response (@24) which I believe are arguing for a much broader, more general principle (hence my question @11 regarding limits). In response to my question

"Should people be obligated to subject themselves to any medical procedure provided the benefit to society is high enough?"


Tm says:

"This is really not hard to answer: in a liberal society, a requirement is justifiable if it is necessary for the protection of society and does not place an undue burden on the individual."


Here are a couple of points about this exchange which are relevant to your various critiques:
* I framed the question in terms of “obligation” i.e. is a person morally obliged to take a positive action (such as getting vaccinated) if specific criteria are met. This is not really about whether someone is going to get turned away from the gym; its about whether people should (in the normative sense) submit to a medical procedure. Note also that the Supreme Court case most frequently cited as supporting vaccination mandates, Jacobson v. Massachusetts, involved compulsory vaccination.
* The “balancing” framing was introduced by Tm. Justification consists of establishing that a requirement 1) is necessary for the protection of society and 2) does not place an undue burden on the individual. I acknowledge that I’m assuming this test includes a balancing element, that there’s a requirement of proportionality between the level of protection provided and the burden on the individual. This needn’t necessarily be the case.

Now, regarding specific comments that aren’t addressed by the observations above:

I’m still thinking through vaccination as a job requirement in the case where such thing aren’t clearly spelled out ahead of time. If your employer tells you prior to accepting the job that you’ll need to get vaccinated, all good.
I support abortion on demand, and think that existing restrictions are bullshit. Tm, its interesting that you bring up abortion, since I think using it as an example helps illustrate my stance. A person seeking an abortion is making a decision for themselves about how a set of (possibly) subjective/incommensurable criteria affect their personal wellbeing. On the other hand, society/government/public health authorities have absolutely no business making that decision for anyone.
“If you insist that the burden of proof for supporting a vaccine mandate requires calculation that the benefits to society outweigh any burdens, then to oppose a vaccine mandate must surely require calculation that the burdens outweigh the benefits to society?” I had to stop and think awhile about this objection, but I’m going to hold my ground because I think that in some ways this is the heart of the issue. I treat it as axiomatic that a preference for bodily autonomy is the (defeasible) default choice for such situations. I’m a little surprised I’m having to raise that here at CT; isn’t that basically the crux of the (moral) argument underpinning the right to abortion?
“We are not talking about Zwyicki’s autonomy with respect to vaccination”. No, really, we are. I don’t know Zwyicki, I don’t care about Zwyicki, but a lot of commenters here seem to be pretty certain that Zwyicki’s behavior is endangering people to a degree that he is morally obligated to get vaccinated. Given the rapidity of the judgement, and the certainty of the verdict, it should be really easy for people to show their work. This was actually part of what prompted me to ask the “limiting principles” question earlier, because it really looks like people are assuming that any incremental protection provided to society is sufficient to require him to get vaccinated.

This paragraph deserves to be quoted in its entirety:

“A government should have absolutely no input on the weighing of benefits and burdens in a society? If we were only considering the potential harm to Zwyicki, this might be more reasonable – but we are considering the potential harm by Zwyicki to others. A government (at least in theory) can have access to a vast body of resources, data, and expertise – including some of the most talented and empirically consistently correct people working in relevant fields (such as epidemiology and medicine). While I am certainly not blind to how frequently public health is overridden by political and economic considerations, however incompetent you believe the government may be in exercising such a function I’d be intrigued at how you came to the conclusion that an individual (with far less access to relevant data and knowledge) is better placed to make such evaluations.”

notGoodenough, explain to me how you have not just reiterated the government’s position from Buck v. Bell? And now I’m going to rant for a few sentences: For the love of god and all that is holy, how can you possibly hold this position given who just left office? Why the hell should I give any public entity that much deference when fucking Cheeto Mussolini might get reelected in 2024? Don’t give more power to your best friend than you’re willing to give to your worst enemy.

Maybe I should have said this up front, instead of burying the lede, but you have to hold the line somewhere. Government necessarily needs to do cost/benefit analyses all the time; I’m down with that. But I draw the line at giving society/government/public health authorities the power to compel medical procedures, because that power has historically lead to abuses. I was hoping that the wise heads here could talk me out of that position in the case of vaccination, but so far I’m not convinced.

Tm @ 49 –

“That’s why I gave as second criterion that a mandate must not place an undue burden on the individual. And the vaccination mandates don’t. There is no plausible argument to the contrary.”

Do you support getting rid of
* Religious exemptions to vaccination mandates?
* Medical exemptions to vaccination mandates?