It’s been a hell of a news cycle for bodily autonomy.
The left is in histrionics over the new Texas abortion law that bans the procedure after six weeks, and the rest of us are aghast at Biden’s new executive order forcing private companies to mandate COVID vaccines for their employees.
You’ll find few people in both camps, however, a testament to just how partisan and unprincipled our country has truly become. That’s a tangent for another time, though. Right now, I want to talk about the legality of Biden’s mandate.
Even before the ink dried one could hear the lawsuits being filed.
It seems everyone knows this is headed for the courts and the only question remains: will it stand?
Here’s the bad news. Our Constitution, and the rights it is supposed to uphold, has been severely eroded over the past 150 years—largely through the establishment of bad legal precedent in the courts.
The nuts and bolts of the executive order are this. Biden has directed an unelected bureaucracy with no governing or constitutional authority (yet again) to carry out his wishes in an almost certain sign that he knows his plans would not get through Congress. This time he’s using the regulatory arm of the Department of Labor, The Occupational Safety and Health Administration (OSHA).
In his order, Biden directed OSHA to require all businesses with 100 or more employees to ensure their workers are either vaccinated or tested once a week. You know, because COVID leaves companies with fewer than 99 employees alone.
Should companies not comply they will face hefty fines, potentially up to $14,000 per violation.
According to CNN, Biden “also signed an executive order requiring all government employees be vaccinated against Covid-19, with no option of being regularly tested to opt-out. The President signed an accompanying order directing the same standard be applied to employees of contractors who do business with the federal government.”
On top of that, his executive order applies to 300,000 educators in federal Head Start programs and 17 million health care workers at facilities receiving funds from Medicare and Medicaid. All in all, the order could impact over 100 million Americans.
Additionally, Biden pressured governors to require vaccines for all school teachers and staff, badgered concert venues and stadiums to require vaccinations, and said the TSA would double fines for passengers who refused to comply with mask mandates.
So, will it stand? The answer is murky thanks to the aforementioned erosion of our rights.
Supporters of the War on Drugs need take yet another lap of shame as the policies they’ve supported for decades have done much damage to the right to bodily autonomy. If the government can imprison you for what you peacefully choose to put into your body it would stand to reason in the courts that they have similar powers to punish you for what you choose to not put in your body. This is why principles are important, kids. When you’re a hypocrite it will always come back to bite you in the end.
On top of that, we have over a century of bad case law around the question of vaccine mandates themselves—beginning with the smallpox era.
The smallpox vaccine was the first of its kind, and it has achieved wonders. Indeed, to date, smallpox is the only infectious disease to ever be eradicated in humans. But the success of this vaccine masks the problematic path it coursed to get there.
In 1905, the US Supreme Court upheld the authority of states to impose vaccine mandates in Jacobson v. Massachusetts. It’s a flagrantly unconstitutional verdict whose essence can best be summed up by this quote from its summary:
“The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.”
It’s as bad as it sounds, but it actually gets worse.
If you understand anything about the US legal system it must be this: the law builds upon itself. Each unconstitutional brick that is laid becomes the foundation for the next brick. Together these bricks form a stairway to hell that takes us further and further away from the Constitution.
Such was the case with the Jacobson verdict, which twenty-two years later became the legal precedent for another horrific case in our history: Buck v. Bell.
To truly capture the inhumanity and gruesomeness of this decision would require much more time and space than I have here. But at base this decision said “feeble-minded” women could be forcibly sterilized in the US. Yes, you read that right. And it has never been overturned, though latter decisions chipped away at the decision.
You see, bodily autonomy is a zero-sum game. You either stand for it all of the time or you do not actually stand for it at all. And when you pick and choose your battles or believe there are appropriate caveats to a right, you give the government an inch, after which they will always take a mile.
So while smallpox was eventually “cured”, the actions taken along the way created much injustice, suffering, and violence.
The Jacobson case, which many are using to argue in favor of Biden’s mandate, has several noticeable differences from Biden’s order. First, the decision was based on a law passed by a legislature, not an executive order. Secondly, the law passed did not make private employers act as its enforcement arm, nor did it target people’s employment if they did not comply. And lastly, it offered a $5 exemption fee for those who felt strongly enough to opt-out. That doesn’t make the Jacobson case any more appropriate or constitutional, but it does mean its legal precedent will not provide the current SCOTUS with a ring to hang their hat on should they seek to uphold Biden’s executive order.
Will Biden’s actions be upheld? It’s honestly anyone’s guess at this point in our history. But should they be, it is certain they too will create needless injustice, suffering, and violence.
Good public policies don’t require force. And in fact, it is likely a response to the government’s lies and gaslighting throughout the pandemic that have made so many wary of getting the vaccine. This type of action will only increase the hesitancy, fear, and principled resistance. In a free country, persuasion is key.
“This is not about freedom or personal choice,” Biden said during his press conference on the new order. That much is obvious. But he’s about to find out that he’ll have as hard of a time eradicating freedom and personal choice in this country as he has had trying to eradicate the coronavirus. Game on, Biden.