Americans are free to debate the effectiveness of the newly released Covid vaccines. They are also free to decide whether or not to get vaccinated. As Americans, they have the freedom to make these choices for themselves and for their young children. The decision that they make relative to the Covid vaccine should not dictate/govern the level of freedom that they enjoy as Americans. This would run afoul of the very notion of freedom that Americans so deeply cherish. Notwithstanding, President Joe Biden recently proposed the use of vaccine passports, which could tear a gaping hole into the freedoms that Americans enjoy and lead Americans down a dangerously steep and slippery slope to the abyss.
As reported by US News:
“The Biden administration and private companies are working to develop a standard for a ‘vaccine passport’ that could be used as the country tries to reopen in the coming months.”
The passports are expected to be free and available through applications for smartphones, which could display a scannable code similar to an airline boarding pass, the Post reported. Americans without smartphone access should be able to print out the passports, developers have said.
In other words, Biden wants to permit businesses, local governments, etc. to condition some of the freedoms that Americans enjoy on whether or not they choose to vaccinate. If they are unable to provide proof of vaccination, they will be unable to participate/engage in certain types of events/activities. There are many potential problems with Biden’s proposal.
For starters, while some Americans will undoubtedly and voluntarily choose not to vaccinate, others might not be permitted/allowed to do so due to some underlying medical condition, age restriction, etc. Are such individuals barred from engaging in various activities because they are unable to provide proof of vaccination? Do they simply give up their personal freedoms?
What about the potential privacy (i.e. personal and medical) concerns associated with such passports? Are we, as Americans, expected to waive our privacy rights and to share our personal and medical information with “strangers” in order to exercise and enjoy our freedoms? Who would be in charge of this information? What measures would be in place to ensure that such information is not stolen or improperly disclosed? This could create dangerous precedent whereby our personal freedoms and privacy rights are slowly but systematically eroded.
Another concern with this policy is the fact that it could impact people or groups of people differently. For example, some people in smaller cities and towns might not have the opportunity to vaccinate due to the unavailability of vaccines in their area(s). Others might not have access to smart phones. In other words, the “vaccine passport” might not apply equally to all people and could discriminate among different groups of people. As reported by Townhall:
According to the ACLU, an exclusively digital passport system is a “nonstarter because it would increase inequality.” Those who are poor, disabled, homeless or seniors would be greatly impacted. Those demographics are the least likely to have smartphones, which would be necessary for digital passports. Digital passports would create a burden on those demographics.
As reported by Business Insider,”In the US alone, the vaccine rollout has been disproportionate among minorities and poorer populations, who have received fewer doses of the COVID-19 vaccine despite often being at greater risk for contracting the disease.” The requirement for such passports could also encourage fraud and result in a black market for people seeking “fake” vaccine passports.
With few exceptions, a vaccine passport would, in essence, make the Covid vaccination mandatory. While Americans are encouraged to get vaccinated, compelling them to do so in order to enjoy certain freedoms will likely lead to legal challenges.
According to Seema Mohapatra, Associate Professor of Law and Dean’s Fellow, IUPUI, while there is some precedent for passports and/or vaccination cards, “immunity passports” could run afoul of certain laws, such as the ADA.
Additionally, unlike vaccinations for highly contagious and lethal diseases like Smallpox (which the Supreme Court addressed in the case of Jacobson v. Massachusetts in 1905), Covid is not nearly as lethal and has a very high survival rate. In Jacobson, for example, the Supreme Court did not necessarily impose a vaccine mandate, but ruled that a person could be fined and punished if he/she refused to do get vaccinated. In an article in Reason, constitutional law professor Josh Blackman states:
The Massachusetts Supreme Judicial Court observed, “[i]f a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of the penalty of $5.”
Later, in 1927, the Supreme Court decided the case of Buck v. Bell. There, Carrie Buck, who was deemed a “feeble minded woman,” was institutionalized. This “condition” had been present in her family for three generations. Shortly after Buck had a baby, Virginia passed a law allowing for the sexual sterilization of inmates of institutions to promote the “health of the patient and the welfare of society.” In light of this law, Buck was forcibly sterilized by the government. In upholding the government’s conduct, and citing Jacobson, Supreme Court Justice Oliver Wendell Holmes Jr. stated:
The judgment finds the facts that have been recited, and that Carrie Buck “is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health, and that her welfare and that of society will be promoted by her sterilization,”
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.
These cases emphasize another potential and critical problem with the vaccine passport and the idea of mandatory vaccinations, which is the possibility of government overreach. Such overreach could result in a dangerous and slippery slope whereby our personal rights and liberties are systemically eliminated. Realizing such dangers, various lawmakers are fighting back by way of executive action banning such passports. As reported by The Hill, Florida Gov. Ron DeSantis, recently stated, “It’s completely unacceptable for either the government or the private sector to impose upon you the requirement that you show proof of vaccine to just simply participate in normal society.”
Americans will have to wait and see how this ultimately plays out.
Mr. Hakim is a political writer and commentator and an attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, American Greatness, The Algemeiner, The Western Journal, American Thinker and other online publications.