(LifeSiteNews) — The U.S. Supreme Court has never seriously addressed the issue of whether Covid vaccine mandates violate our basic human and Constitutional right to be free from unwanted, coercive medical procedures. The Court has managed to ignore this elephant in the room while busying itself with procedural issues and an occasional limited analysis of religious exemptions.
In 2022, when the Court ruled on vaccine mandates imposed by OSHA and the Department of HHS, those rulings were based largely on administrative law issues, leaving unresolved the more important issue of whether vaccine mandates themselves violate our Constitution and existing laws.
The Court has a chance now to address this big issue if it is willing to take the case.
The Court will decide later this month whether to hear the case of Wilkins v. Herron involving a teacher fired from an Oregon school district for refusing the Covid vaccine. If the Court takes this case, it will ask the parties to submit full briefing and hopefully next year the Court will decide whether the school district violated Mr. Wilkins’ Constitutional and legal right to give (or withhold) informed consent.
The Supreme Court for many years has recognized a Constitutional right to refuse unwanted medical care, part of a legal right sometimes referred to as “bodily integrity.” Some cases have balanced that right against potentially countervailing needs to protect public health and safety. In order to mandate Covid vaccine mandates, that should require an honest assessment of whether the mandates were truly necessary, safe, and effective. It is not enough for the Court simply to rely on government health officials with their obvious financial conflicts and poor track record.
Let’s be honest. We all know the Covid vaccine did not keep people from getting or spreading Covid to others and it was virtually useless (or worse) for vast segments of the population that were low risk for Covid while at risk for vaccine side effects. The Centers for Disease Control (CDC) has acknowledged that the vaccine does not prevent infection or transmission of the disease. According to a 2021 Newsweek article, CDC records show that “both vaccinated and unvaccinated people are equally capable of transmitting the virus to other people.”
We also know that the Covid vaccines can lead to serious health problems. These include myocarditis among young men, pregnancy risks for young women and a host of other possible health problems, including seizures, strokes, and death, discussed in a 2020 meeting at the FDA. As time passes, we are hearing about even more health risks, including mounting fears of “turbo cancers.” This should come as no surprise considering that the big drug companies have a very checkered past, including numerous scandals, lawsuits and criminal prosecutions over many decades involving their products and business practices. Johnson and Johnson alone has paid more than $25 billion in penalties since 2000. Nor can it inspire any confidence in the drug companies that Congress has granted them near absolute legal immunity in selling their Covid vaccines.
All of this serves to illustrate the folly of self-proclaimed “experts” who were so sure of themselves as they rushed to impose vaccine mandates on the rest of us. Finally, five years after the start of Covid, some leaders of U.S. health agencies are beginning to admit their doubts about the vaccine’s effectiveness and safety, and the director of the National Institutes of Health recently admitted there is a lack of public trust. This is part of a worldwide phenomenon with a growing list of countries now pausing or limiting use of the vaccine and their specific vaccine recommendations due to health concerns.
Clearly, the Covid vaccine was not the solution to any emergency, and the members of the Supreme Court should know that by now. Besides, if the vaccines worked, there would be little need for mandates since whoever wanted protection could simply take the vaccine themselves and not worry about the rest of us.
Against this backdrop, what right does the government or big business have to force people to take this vaccine? Yet the Supreme Court has so far just nibbled around the edges of that question, focusing mostly on administrative law and religious exemptions. Without for a moment seeking to downplay religious objections, which are critically important, the Court’s limited focus leaves behind the majority of Americans who simply do not want an experimental and controversial drug forced into their bodies (whatever happened to “my body, my choice”?)
Defenders of vaccine mandates point to a 120-year-old Supreme Court decision, Jacobson v. Massachusetts, approving a smallpox vaccine mandate that was enforceable by a $5 fine. But since then, there has been over a century of cases recognizing a constitutional right to “bodily integrity,” including the right to refuse unwanted medical treatment. In any event, Covid is not smallpox, and the Covid vaccine, unlike the smallpox vaccine, never worked as advertised. Broad Covid vaccine mandates, like school closures and cloth mask mandates, were an irrational knee-jerk panic reaction to the pandemic fomented by so-called “experts” who we can see now to have been conflicted, alarmist and in large part simply wrong.
Even if the “experts” might be entitled to some initial deference, that time has long since passed. The Supreme Court in 2020 (Roman Catholic Diocese v. Cuomo) acknowledged that “even in a pandemic, the Constitution cannot be put away and forgotten.” The Court in that case ruled against Covid restrictions on church worship in New York with Justice Brett Kavanaugh stressing that “judicial deference (to the experts) in an emergency or crisis does not mean wholesale judicial abdication.”
Besides Constitutional requirements, existing laws may rule out Covid vaccine mandates under the Covid vaccine’s Emergency Use Authorization (EUA.) The Food, Drug, and Cosmetic Act requires that such vaccine mandates ensure that proposed recipients of the vaccine are informed of their option to accept or refuse it and any consequences of refusing. While some may argue that these requirements are met since a person can simply choose to refuse the vaccine and suffer the penalty, the right to refuse would be illusory if it is not voluntary. Threats of job loss or exclusion from college admission would seem to be inherently non-voluntary and coercive.
Finally, a new drug approved by the FDA for emergency use, like the Covid vaccine, is inherently “experimental.” Since the time of the Nuremberg war crimes, all civilized nations around the world have prohibited non-consensual medical experimentation on human beings.
Let us hope the Court will resolve this before the next big health emergency.
David Bjornstrom is a retired California attorney and member of the U.S. Supreme Court bar. Nothing in this article is to be considered legal advice, practice of law, or an examination of the law or passing upon the legal effect of any act, document, or law.
