I have a piece for TAP arguing that New York City should call Patrick Lynch’s bluff, because even MAGA judges haven’t been willing to upend centuries of settled law and social practice to invent a “right” not to take vaccines:
The interesting question is why the challenges to vaccine mandates have failed so dismally thus far. After all, Republican judges have not been shy about second-guessing COVID responses taken by state governments. The Supreme Court has struck down COVID orders issued by the governments of New York and California on religious-freedom grounds, and Republican-controlled state courts in Michigan and Wisconsin have done even more to constrain the pandemic response of Democratic governors. Why have challenges to vaccine mandates played out differently?
One obvious reason is that, despite rhetoric suggesting that vaccine mandates are an unprecedented attack on medical privacy, they are actually a routine part of American life. I had to get a measles shot before taking my current job at a public university, and this is hardly unusual. As Easterbrook observed in his opinion, requirements to get vaccinated against diseases like “measles, mumps, rubella, diphtheria, tetanus … and more” are “common requirements of higher education.” Indiana was one of the countless universities that already required proof of these vaccinations, with narrow exceptions. Judges ruling mandatory vaccinations unconstitutional, in other words, would wreak havoc on long-standing and common practices in a way that striking down regulations unique to the COVID-19 pandemic would not. And even conservative judges are unlikely to want to risk their children getting chicken pox or whooping cough to own the libs.
The larger issue here is that vaccine requirements have long been common and legal because the argument that vaccines represent solely a “personal medical decision” is a relatively novel one that collapses upon the slightest scrutiny. To state the obvious, vaccination needs to be collective to work. No vaccine provides perfect protection; getting to herd immunity or something close to it requires vaccination to be widespread enough to prevent outbreaks. Saying that you have a “right” not to be vaccinated makes exactly as much sense as saying that you have a “right” to drive under the influence of fentanyl or to ignore traffic signals. Your decision not to get vaccinated puts others at risk, not just yourself, and ensuring mass vaccination to stop pandemics is exactly the kind of collective-action problem government exists to address.
I do have some concerns that religious exemptions that haven’t been a problem previously could be weaponized now that anti-vaxxism has become a matter of Republican identity politics, but in the meantime NYC should certainly tell the PBA to eat shit and take the vaccines, as every city should tell their workers cops certainly included. After all, hardcore MAGA cops quitting over vaccine mandates is a win-win!