Last week, Gov. Janet Mills’s policies concerning COVID vaccines were vindicated by the U.S. Supreme Court, though – strangely – no one seems to have noticed.
It was Mills’s decision, early in the pandemic’s Delta variant phase, to mandate shots for health care workers at a time when the federal government was still studying the matter.
Further, Mills didn’t allow a religious exemption, sometimes a no-no for the current Supreme Court, with its expansive concern for the “free exercise of religion” clause, even where it contravenes other constitutional guarantees, such as those for public health and safety.
Now a federal program, the health worker mandate passed muster – though only by 5-4, with Brett Kavanaugh and Chief Justice John Roberts joining the three liberal justices to uphold it.
Think of that: a regulation aimed at preventing the spread of a deadly virus to the public by the people we entrust with keeping us safe was barely acceptable to our highest legal tribunal.
By contrast, an attempt to make workplaces safe by requiring vaccinations at large businesses was scuttled, with Roberts and Kavanaugh joining four hardliners: Clarence Thomas, Samuel Alito, and Trump appointees Amy Coney Barrett and Neil Gorsuch.
Because the rulings came from emergency petitions, the main opinion is, by court tradition, unsigned, but it bears the chief justice’s fingerprints.
During oral arguments, Robert was highly skeptical that, without specific authorization by Congress, OSHA could act against a menace that’s already killed 852,000 Americans – possibly one million by spring.
The principal argument against the OSHA mandate seemed to be that, because people also caught the virus elsewhere, workplace safety wasn’t specifically involved.
Again, consider the court’s message. Many employees were considered “essential” from the start of the pandemic, and had to show up or be fired; until the vaccines were available, it was truly a Hobson’s choice.
Now that vaccines are available, the court says, workers must be free not to get them – as if death by virus and a requirement for a life-saving shot were equivalent.
As it happens, there was a clear precedent about requiring vaccinations, and – though the justices referenced it – in the end Roberts ignored it.
“Jacobson v. Massachusetts” was decided in 1905 by the Fuller Court – the same court that’s often faulted for its 1895 decision in “Plessy v. Ferguson,” ratifying racial segregation.
“Jacobson,” a 7-2 decision, said the city of Cambridge acted legally under a state law permitting mandatory vaccines during public health emergencies.
The facts are easily stated. Passed during a serious smallpox outbreak, the ordinance required all adults to be vaccinated, with a $5 fine for violations – the equivalent of $140 today. It was far more stringent than anything OSHA proposed, or any other agency even contemplated during this pandemic.
A minister filed suit. He’d had a serious reaction when, as a boy back in Sweden, he’d been inoculated; unlike COVID vaccines, the smallpox vaccine sometimes had fatal consequences.
Justice John Harlan said the Massachusetts law did not violate the 14th Amendment: “The liberty secured by the Constitution does not impart an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint,” and that “It is within the police power of a state to enact a compulsory vaccine law.”
Chief Justice Melville Fuller, a Maine native, concurred, as did five other justices. Only two judges, who today would be characterized as doctrinaire libertarians, dissented.
Executive agencies like OSHA didn’t exist in 1905, and the court has often upheld Congress’s ability to delegate decisions like this one.
What was different here? Clearly, the court’s current political orientation, and its willingness to use its considerable authority to strike down policies with which it merely disagrees.
It’s also worth remembering that the Fuller court, while upholding the public health ordinance, struck down many state laws it saw as interfering with the private property rights of corporations, including laws concerning minimum wages, child labor, and working conditions for women.
Yet even a court thoroughly committed to “liberty of contract” principles made an exception for a deadly communicable disease spreading unchecked.
At this late stage of the pandemic, it’s unlikely the court’s latest pronouncements will have a major impact on the death rate from COVID. But as a legal precedent, it’s both worrisome and shocking.
A Congress that has freely handed over its power to declare war to presidents, with no significant judicial check, must now precisely calibrate each public health emergency as it unfolds, and tailor laws to meet it – or face the possibility the Supreme Court will render the government’s response null and void.
Douglas Rooks, a Maine editor, commentator and reporter since 1984, is the author of three books. His first, “Statesman: George Mitchell and the Art of the Possible,” is now out in paperback. He welcomes comment at drooks@tds.net
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