Court-Mandated COVID-19 Vaccination Could Cause Constitutional Chaos

COVID-19 electromicrograph

I got an email today from the New York State Bar Association with this text therein:

Chief Judge Janet DiFiore, during her coronavirus update today, responded to the pending lawsuits from several unions challenging the state court system’s mandatory vaccination requirement.

…[W]e look forward to demonstrating that the vaccine requirement is fully within our legal powers as a responsible, appropriate and necessary response to the serious threat that COVID-19 poses to the health and safety of our workforce, and the public we serve,” said DiFiore. “And while we hope that the legal challenges will be resolved shortly, it is important for everyone to know and understand that the employees represented by the unions that have secured temporary relief at this point will continue to undergo COVID testing on a weekly basis, so as to ensure a safe and healthy environment to the best of our ability.”

“DiFiore said she was encouraged by the fact that 97% of court staff who are not parties to the lawsuits have submitted proof of vaccination or a request for a medical or religious exemption. She said “almost all” of the state’s judges have submitted proof of vaccination or an exemption request. The court system’s vaccination mandate went into effect last Monday.

“Kudos to every single one of them for setting the example for our entire branch of government and demonstrating their commitment and leadership in doing what is right and responsible to safeguard the health and safety of the folks they work with, and the many thousands of court users and visitors who enter our buildings,” said DiFiore.

DiFiore also had a message for the “small minority” of employees who have refused the vaccination.

“[W]e understand and respect that they may have different views on this issue, but I want to make it absolutely clear that we have exhaustively studied, examined and discussed the vaccination question, and the bottom line is that all of the data and every factor we look at – whether it relates to science and public health or law and ethics – points to the same conclusion: vaccination of our judges and nonjudicial workforce is the responsible, proper and necessary course of action for our institution,” said DiFiore.”

This may get very interesting very quickly. The issue is that the New York State court system is a state agency; the courts are not a private enterprise. This state agency is requiring its employees to get a medicine pumped into their bodies … and it’s a medicine that not all of them want to receive. Thus, the problem of government interference with private matters … like healthcare … can easily come into play here. That interference can quickly rise to a constitutional issue under several of the Bill of Rights amendments. Court employees do, after all, have rights.

But just how far do our rights extend? Do we actually have the right to choose not to get vaccinated in the face of a world pandemic?

Let me point out that there are ample examples of mandated vaccination in the annals of US history, going all the way back to George Washington’s mandate to the people of the newly formed United States of America to get inoculated against smallpox (and that inoculation did not get nearly the testing that even the COVID19 mRNA vaccines got because the science to do the testing was not yet available). The mandates continue today through the school-based inoculation requirements (kids have to be vaccinated against several childhood diseases to attend public school). We dutifully get our flu shots each year (I’ve gotten mine for the 2021-22 flu season already).

Through mandatory vaccination, we have dramatically lessened the impact of several former scourge diseases. Smallpox lives only in a few vials in a couple of biohazard level 4 labs; measles, diphtheria, tetanus, mumps, rubella, and all the rest of the legion of childhood diseases against which we now vaccinate no longer kill or maim the vast numbers they used to do. Influenza still exists … and still kills … because that bug mutates very very quickly and the flu vaccine is an annual crap shoot as to which strains will be most active in the upcoming flu season.

Now we come to COVID19. This is a new bug. We haven’t seen it before 2019, and it took the world by storm. Millions of people have gotten sick; many have died; many have been left with long-term effects; many have recovered completely. Many are now vaccinated with a vaccine that appeared to be very quickly developed and approved … it took the COVID shots about ten months to wend their way through the Food & Drug Administration’s (FDA) minefield of approval processing where it takes most new drugs several years. The patent world is abuzz with new COVID-related inventions; the trademark world is delightedly registering COVID19 drug names by the boatload.

The speed of that FDA approval process seems to be the problem for those many who have not gotten their COVID vaccines. And I get it. The theory is that this is a new drug … heck, an mRNA vaccine is a whole new type of drug … that we’re injecting into our bodies with little testing. Okay. That can be seen as a valid argument in the face of things like the thalidomide disaster in the 1950s and 1960s.

But the COVID vaccine is not thalidomide; mRNA is, in fact, a chemical manufactured by our bodies; it’s equivalent to the cars that bring cargo to a train; mRNA brings the amino acids that build our proteins to the protein manufacturing line (the “m” stands for “messenger”). The minimal risk an individual faces of developing a serious side effect from having an mRNA vaccine injected pales when compared to the threat to public health that unvaccinated people present. COVID is a proven killer; why would we not, en masse, take every conceivable precaution against transmitting and catching the disease? Are we really so self-absorbed that we cannot see our way clear to take steps to avoid infecting our families, friends and neighbors who may be especially susceptible to COVID effects?

As I have pointed out, there is a long history of public-health vaccination mandates regarding the containment of the spread of disease. COVID is just another example of a public-health vaccination mandate.

I’ve had my COVID shots. I felt rotten for a couple of days after the second shot. I have not yet gotten a booster because I am not yet eligible for a booster. That I am fully vaccinated is not a political statement; it is a public health statement. I do not want to infect others, and I do not want to be infected myself. The COVID19 virus does not care what side of the aisle you espouse; it infects Republicans with the same enthusiasm with which it infects Democrats.

It’s entirely your choice whether or not to follow the mandate and vaccinate yourself and your loved ones, but as the parent of an immunocompromised and very productive member of society, I will have something to say to you if my kid comes down with COVID and dies (and no, I do not exaggerate; my pulmonary-compromised kid is more likely than are many to go into COVID-related ARDS and leave the planet; she already has an ARDS history) because you decided to exercise your “right” to be a shedding germ factory.

The “right” is there for you to exercise control over what goes into your body. Your “right,” however, ends where mine begins. And I have the right to remain healthy, especially since we now have an effective vaccine. If you want to avoid vaccination, fine; wear your mask, keep your social distance, wash your hands very very often, and don’t infect me and mine.

Black Lives Matter

Today, Delain Law Office, PLLC joins the world in mourning the loss of George Floyd. We pray for his family and friends as they lay him to rest, and we pray for every family who has lost a loved one at the hands of violence … especially police violence. We pray for their strength and for their healing. And we pray that they forgive us all for failing them so completely.
It has been more than one hundred and fifty years since Abraham Lincoln signed the Emancipation Proclamation, more than 50 years since the Civil Rights Act of 1964, more than 10 years since we elected our first African American president. Many, many lives have been lost. Still, there is still no justice under the law for African Americans. It is still not safe to be Black in this country.
We live in a nation divided by race. African Americans have glaringly different outcomes than do those of European descent when it comes to nearly every system that has been erected in this country. Racism negatively impacts employment, housing, health, safety, and financial wellbeing.
We at Delain Law Office are shocked and saddened by the actions of the officers who callously and needlessly took Mr. Floyd from his family. That his six-year-old daughter can see that her daddy changed the world is amazing … and tragic. The world should already have undergone this change. We find it reprehensible that it so clearly has not.
I am a white woman, and I recognize that I sadly hold a privilege in our society based solely on the color of my skin. That privilege rings truly hollow when it comes at the price of innocent lives, regardless of the color of that life’s skin. Today, and every day, I stand in solidarity with the Black community. I stand ready to listen and to serve.

Traveling Through the Age of Novel Coronavirus

In case you’ve missed it, we’re looking at a new and contagious epidemic virus. Novel coronavirus (COVID 19) is burning through the human population. It started in snakes and jumped over to humans in China and Iran (and people who have recently been to China and Iran are not welcome to cross US borders at this time … yes, even citizens coming back from those countries have sit in quarantine for two weeks before they’re allowed into contact with other humans in the USA), and Italy is now on the US State Department’s travel advisory list (postpone that trip you’ve got planned). It’s already here in New York State. Estimates from credible sources indicate that the virus will be widespread in the USA by mid-March or early April. That’s … like … now.

This virus is new (hence its name of NOVEL coronavirus). We have never been exposed to it. We have no immune exposure to it. Our immune systems do not know what to do with this new thing. Cure is not available, though symptomatic support is.

So what’s a human to do?

First, if you’re sick … even if you just think you have a cold, if you’re “just coughing,” or “just sneezing” … STAY AWAY FROM OTHER HUMANS. Stay home. Governor Cuomo has, and has indicated that he will exercise, quarantine powers. Don’t make him exercise those powers. Quarantine yourself. If you’re my client and you’re sick, even with just a cold, contact me to postpone your appointment until you feel better. I will do the same for you.

Don’t shake hands. With ANYONE. This virus is evidently transmitted through water droplets entering the nose and mouth. Water droplets bearing coronavirus can live on the hands of the person whose hand you shake. You then pass it along to the next person you shake hands with.

Wipe surfaces with germicidal wipes. Grocery carts, bathroom doors, elevator buttons (use only your knuckle to press an elevator button). Lysol® Is Your New Best Friend.

Wash your hands often like you’ve just cut up a jalapeño pepper and you have to take out a contact lens. By “often,” I mean anytime you come in contact with anything another human may have touched. Seems extreme, but so does pneumonia from coronavirus.

Don’t touch your nose or mouth. That’s how this bug gets into your system. Wear a bandana and eyeglasses if you must to remind yourself to keep your hands off your face. But don’t buy face masks; let the health care workers have those.

I spent all of $0.99 on to get an e-book with a formula for homemade hand sanitizer. It may be the best $0.99 I ever spent since the public panic will lead to a dearth of commercially available hand sanitizer.

Coronavirus is an emergent epidemic. As such, it is a public health issue that is likely to have significant legal ramifications. Quarantine is a significant infringement of individual rights … think “imprisonment.” Denying citizens reentry into their country without quarantine is a significant infringement of individual rights (think “can’t go home”). At the same time, individuals must, in such a time, give way to public safety issues. Quarantine keeps the public safe; so does denying immediate entry, pending quarantine results, to people coming in from infected areas. It’s a balancing act, and, like all balancing acts, we may get it wrong to begin with. But me, I’d rather err on the side of caution when dealing with a new virus. I’ll give up my right to leave my house if it keeps even my pissy next-door neighbors safe from an infection I may have contracted.

There Will Be Lawsuits. It’s going to be a litigious mess. However, if we all proactively act to prevent catching it and spreading it ourselves, those ramifications will be lessened. If we don’t, they won’t.

We’re in for a siege. Get ready for it.

Handy Widget for Converting Currencies

I’m going to England in December. Because of this fact, I’m interested in converting pounds sterling to dollars and vice versa. I found this handy-dandy widget that does just that.

While this has absolutely nothing to do with intellectual property, I put it here as a service to my IP clients (and others) who travel internationally.