As more governors issue so-called mandates requiring municipal and state employers, as well as private employers and public accommodations, to require their employees and patrons to be vaccinated against COVID-19, they are being challenged by arguments based on personal privacy and bodily integrity.
The former argues that personal medical decisions are protected by the right to privacy, which is a natural right that supersedes governmental needs. The latter argues that since we each own our bodies, we can decide what goes into them. Both the personal privacy and the bodily integrity arguments recognize that the government can only trump fundamental rights if it can prove fault at a jury trial.
Thus, a case where an infected and contagious person is intentionally infecting healthy folks can and should result in an arrest and prosecution for aggravated assault at which the state would need to prove its case. If it did, the convicted defendant would be incarcerated and isolated for the duration of her sentence. But that does not animate the government today.
Today, the government — local, state and federal — is attempting to compel healthy people to be vaccinated against their wills. All three levels of government are attempting to do this by command, not by legislation.
The favorite U.S. Supreme Court case that the pro-mandate folks cite is the 116-year-old Jacobson v. Massachusetts. There, in the era before the court recognized personal privacy or bodily integrity as constitutionally protected, it upheld a Massachusetts statute requiring inoculation for smallpox.
The issue in the case was whether a state legislature can enact public health laws that authorize force to enforce them. The issue was not whether a governor could issue a command, call it a law and use the police to enforce it. Moreover, the Jacobson case was decided in 1905, well before the personal privacy and bodily integrity cases came along.
The privacy doctrine began at the Supreme Court in 1928, with a dissent. In Olmstead v. United States, the court upheld wiretapping telephone calls without a search warrant since it held there was no expectation of privacy in the calls.
Justice Louis Brandeis distilled the privacy doctrine in his famous dissent when he wrote that the framers of the Constitution “sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.”
Brandeis’ iconic language would languish as a dissent until 1965 in a case called Griswold v. Connecticut. There, the Supreme Court recognized personal privacy as a fundamental liberty — the highest category of liberty in the constitutional pantheon. In Griswold, the state of Connecticut had enacted legislation prohibiting the use of contraceptives by married couples.
Embracing the values ignored by the Jacobson case and rejected by the Olmstead case, the court invalidated the Connecticut statute and ruled that the decision to use contraceptives is so integral to control over one’s body and is made in such a zone of privacy that the Constitution protects it from the government’s reach.
Eight years later, the Jacobson case would suffer a stake through its dead heart in Roe v. Wade. This case, which prohibited the states from banning pre-viability abortions, also upheld the privacy rights of all persons when deciding what medical procedures to undergo, and thus it protects from the government’s reach the zone in which those decisions are made. A portion of Roe is currently on its deathbed, but not the part that protects bodily integrity; rather, the infamous part that catastrophically fails to recognize the personhood of babies in the womb and permits killing them.
While the right to privacy was slowly being recognized and Brandeis’ Olmstead dissent gradually becoming the law at the federal level, a comparable line of cases, upholding both personal privacy and bodily integrity, was making its way through state courts. The pioneer of those cases is In re Quinlan, a decision of the Supreme Court of New Jersey in 1976. It upheld the right of the parents of Karen Ann Quinlan to deny their comatose daughter artificial life-sustaining procedures.
From and after the Quinlan case, all states recognized the fundamental right of sick people — directly or through their guardians — to reject medication and medical procedures.
The values underlying the Olmstead to Griswold to Roe migration of federal jurisprudence and the values underlying the post-Quinlan state jurisprudence and statutes are the same; and those values are preeminent today.
Today, the states and the federal courts recognize that competent persons can decide for themselves what medications to take or reject because the natural, moral and constitutionally recognized decision-maker over one’s body is oneself, not the government. Moreover, when these decisions are made in consultation with a physician or an intimate mate, they are done so within the zone of privacy and are none of the government’s business.
The folks who believe that the president can direct the Department of Labor to compel employers of more than 100 persons to require vaccines of the healthy and who also believe that a governor can do similarly for public and private employers in his state — and cite the 1905 Jacobson case to support their claims — are sadly ignorant of the 20th-century jurisprudence that stands firmly, convincingly and uniformly against them.
Moreover, these pro-vaccine mandate folks also confuse legislation with executive orders. Under the Guarantee Clause of the Constitution, only laws enacted by a state legislature, not gubernatorial commands, have the force of law. Under the separation of powers doctrine in the federal system, only Congress writes laws, not the president.
And under current Supreme Court rulings, we all can decide for ourselves what medications to take, while the government takes a hike.
COPYRIGHT 2021 ANDREW P. NAPOLITANO
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