I was usually ambivalent about government directed Covid vaccine mandates. I didn’t support them but the topic made me uncomfortable. I am pro-vaccine and pro freedom. I think our elites (including political and public health elites) did a better than average job during Covid.
Now I love the topic of government directed Covid vaccine mandates (of course private entities should be free to require Covid vaccines). How much personal freedom should one lose if there is a massive public health payoff?
What changed my mind was reading this Linda Greenhouse essay in the New York Review of Books: “For the new majority on the Supreme Court, religious liberty takes precedence over the government’s power to protect public health.”
In the general dispute between individual freedom and the public good, I’m slightly more towards the public good than I was in earlier days.
From the New York Review of Books:
She places on display an American exceptionalism of a particularly disquieting form: a legal mindset that has come to value individual freedom over communal welfare and so has “lost sight of contagion’s most compelling lesson: Our own health depends on the health of others.”
…American legal culture—constitutional law in particular—played an unacknowledged part “in generating the vulnerabilities that the pandemic exploited.” A uniquely American body of law “privileged a particularly thin and one-sided conception of liberty” that helped to “amplify the forces that tear at our social fabric.”
…In Parmet’s view, the Jacobson opinion exemplifies a “rich conception of liberty,” which was lost during the Covid-19 pandemic to the “narrow and individualistic conception of liberty” that came to dominate the public and judicial discussion. She does not exempt the Biden administration from criticism for the “individualistic framing” it adopted. In May 2021, referring to the vaccines that by then were widely available, Rochelle Walensky, head of the Centers for Disease Control and Prevention, declared that “we really want to empower people to take this responsibility into their own hands.” Parmet observes, “Once health risks are viewed in this manner, pandemic mitigation measures appear as intrusions on individual liberty.”
Courts embraced the individualistic framing as if on cue. In January 2022 a federal district judge barred the navy from penalizing a group of SEALs who claimed religious reasons for refusing the Covid vaccine. Parmet notes this astonishing case, but without giving the details that demonstrate how far away from the “rich liberty” of the Jacobson case the legal system was moving not even two years into the pandemic. The district court decision’s list of the SEALs’ rationales for refusing to be vaccinated included the “belief that modifying one’s body is an affront to the Creator” and “direct, divine instruction not to receive the vaccine.” The navy argued that the requested waivers would render the SEALs nondeployable, to the detriment of military readiness and the national defense. Judge Reed O’Connor was unmoved. “The Plaintiffs’ loss of religious liberties outweighs any forthcoming harm to the Navy,” he concluded. (The Supreme Court granted the government’s emergency request for a stay of O’Connor’s decision, over the objections of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, while the case proceeded. Congress later that year ordered the Pentagon to lift the deployment bar on unvaccinated service members, and the navy’s compliance rendered the case moot.)
