- Republican governors are fighting COVID-19 vaccination mandates, despite mandating other vaccines.
- Health law experts say these positions are fundamentally contradictory.
- Experts say there’s no legal or substantive difference between mandating COVID-19 vaccines and requiring other kinds of vaccines.
- See more stories on Insider’s business page.
In early 2019, Arizona Gov. Doug Ducey, a Republican, declared his state “pro-vaccination” and opposed efforts to broaden exemptions for mandatory vaccines. In August, Ducey banned his state’s authorities from requiring government employees to be vaccinated against COVID-19.
Four years ago, Indiana Gov. Eric Holcomb mandated meningitis vaccines for public college and university students. Now, he says choosing whether or not to be vaccinated is a “fundamental” right.
Ducey and Holcomb are among a host of Republican governors fighting COVID-19 vaccination mandates, even as their states simultaneously enforce other vaccine mandates. Five health law experts told Insider these positions are fundamentally contradictory and illustrate the politicization of vaccines and public health in the age of the coronavirus.
“There is a certain hypocrisy in mandating childhood vaccines for all school children while objecting to employer mandates,” Lawrence Gostin, a public health law scholar at Georgetown University, told Insider. “Childhood vaccines are required even if the parent objects and several states don’t grant any religious exemptions.”
The US has a long history of mandating vaccinations. The 12 Republican-led states that have banned COVID-19 vaccine mandates all require that children receive several vaccines in order to attend daycare and public schools. Some of these states have vaccination mandates for adults and those in healthcare settings. In certain cases, the same governors who’ve pushed relatively new vaccine mandates, including for meningitis, now oppose COVID-19 vaccination mandates.
Republican governors, in unison with most of their party, argue that getting the COVID-19 vaccine – and even a test – should be a “personal choice.” They raced to condemn Biden’s announcement last week that he’ll require nearly all federal employees, contractors, and federally-funded healthcare providers to be vaccinated and large employers to implement weekly testing for the unvaccinated.
They say there’s no legal or substantive difference between mandating COVID-19 vaccines and mandating other kinds of vaccines, particularly following the Federal Drug Administration’s full approval of the Pfizer-BioNTech vaccine.
“If business and educational facilities are not prevented from requiring other vaccines, they should not be prevented from requiring COVID-19 vaccines to make their customers and staff safer and protect themselves against closures and economic loss,” Dorit Reiss, an expert in vaccine law and policy at UC Hastings College of the Law, told Insider.
Doctors, public health experts, scientists, and legal experts have praised vaccine and testing mandates as effective and constitutional tools to promote public health. And federal mandates are warranted because the nation is facing a medical emergency, the unvaccinated are posing a threat to others’ health and safety, and the vaccines are safe and effective.
Peter Meyers, a professor emeritus and former director of the George Washington University law school’s vaccine injury litigation clinic, told Insider that Republican lawmakers are exhibiting a “tremendous amount of hypocrisy and inconsistency in applying this principle of self-determination in America.”
Many view Republican opposition to COVID-19 vaccination and mitigation policies as nakedly political.
“Vaccination and, generally, public health measures have always been political, but we’re really seeing them become partisan today,” Valerie Gutmann Koch, an expert in health law and policy at the University of Houston Law Center, told Insider.
A ‘power grab’?
The GOP fight against COVID-19 mitigation measures has escalated in recent months, even as the delta variant has caused a dramatic rise in infections and deaths.
GOP governors called the vaccine and testing mandates “tyrannical,” “dictatorial,” and “un-American.” All but two Republican state attorneys general signed a letter on Thursday threatening to sue the Biden administration if it doesn’t retract its vaccine mandate. Republicans argue the vaccine mandates and passports constitute federal overreach, violate individuals’ personal freedoms, and are unconstitutional. Some baselessly argued Biden’s mandates aren’t guided by science are instead attempts to “control” Americans’ lives.
Texas Gov. Greg Abbott called Biden’s mandates “a power grab” and an “assault on private businesses.” Last month, he signed an executive order banning local governments from implementing vaccine mandates and businesses from requiring proof of vaccination.
In Florida, the Republican-controlled state legislature recently passed a law barring local governments and private businesses from requiring their employees or patrons be vaccinated. Gov. Ron DeSantis, a conservative Republican, announced this week that his administration would charge $US5,000 ($AU6,857)-per-infraction fines against any cities and counties requiring government employees to be vaccinated as a term of employment. During a press conference in Gainesville, he defended the city’s public employees who refuse to get vaccinated and allowed at least one of them to spread anti-vaccine misinformation from his podium.
Many Republicans argue Biden’s policies are federal overreach, but experts say the pandemic has presented a crisis that requires federal action to fill in the gaps.
“In ordinary times, I think that their argument would have some validity … traditionally, it has not been the federal government that has mandated vaccination, it’s been a state and local decision,” Meyers said. “But these are not ordinary times. The COVID-19 epidemic is extraordinary.”
At the same time, many of these governors have overridden local authorities and private businesses, imposing contradictory state-wide public health policies.
“The same states that are pushing back against federal mandates are the ones that have essentially usurped local control over public health emergencies,” Koch said.
‘You do not have a right to harm others’
Legal experts say Republican legal efforts to fight COVID-19 mandates will likely fail. There’s broad agreement in the legal community that Biden’s vaccine and testing mandates are constitutional and in line with Supreme Court precedent.
The American Civil Liberties Union, which opposed an H1N1 vaccine mandate in 2009, has come out in support of COVID-19 vaccine mandates, arguing the mandates promote Americans’ civil liberties by protecting the most vulnerable.
The ACLU and other legal experts argue the mandates are a justifiable intrusion on individual autonomy and bodily integrity because COVID-19 poses such a high risk, the vaccines are safe and effective, and there is no alternative mitigation measure that is as effective.
Howard Markel, a medical historian and professor at the University of Michigan, argued that Republican lawmakers who oppose the mandates are “twisting, perverting, and warping” civil liberties for partisan gain.
“You do not have the right, in your own personal liberties, to harm others … I don’t have a right to infect people with COVID,” he told Insider. “There’s common sense limitations to all of our rights and privileges in America.”