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The Legal Battle Over the New Federal Vaccine Mandate Is Underway

The White House says 84 million workers must be vaccinated by January 4 or be subject to weekly workplace testing for COVID-19. Twenty-six states—at last count—are suing to block the law.

As expected, the political backlash to the federal vaccine mandate announced on November 4 was swift and partisan. Within hours, dozens of Republican governors had teamed up to initiate lawsuits to stop a Labor Department order that businesses employing more than 100 workers require proof of vaccination by January 4 or undergo mandatory weekly testing for COVID-19. The law would impact an estimated 84 million workers and more than two million businesses across the country.

THE LAWSUITS BEGIN

The partisan pushback achieved its first results on November 6, when a Louisiana federal appeals court issued a temporary injunction against the mandate. As reported by the New York Times, the three-judge panel on the Fifth Circuit granted the stay in response to a coalition of “businesses, religious groups, advocacy organizations and several Republican-led states that had filed a joint petition in court, arguing the administration had overstepped its authority.” The court order directs the Biden administration to respond by 5 p.m. Monday.

The Louisiana ruling is a shot across the bow of the White House as it prepares for multiple federal court rulings expected in the coming days and weeks. All told, 26 governors and states attorneys general have initiated lawsuits over the vaccine mandate.

The states have mostly teamed up in groups. Missouri is at the front of a 10-state lawsuit, West Virginia has spearheaded a seven-state suit, and Florida, Georgia and Alabama have together filed suit in the 11th U.S. Circuit Court of Appeals in Atlanta.

The de facto leader of the state-level opposition is Florida Governor Ron DeSantis. Hours after the mandate was announced, DeSantis held a press conference to declare the mandate unconstitutional. The Orlando Sentinel reported DeSantis will file a motion to stay the order during its litigation in the 11th Circuit Court. Florida's legislature, meanwhile, is preparing to hold a special session on the matter.

DeSantis’s closest competitor for the voice of the opposition is another Republican governor rumored to hold national ambitions. Texas Gov. Greg Abbott outdid DeSantis by preempting the mandate with an executive order on Monday that barred the enforcement of vaccine mandates—state or federal. “No entity in Texas,” it stated, “can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”

Not all of the states opposing the mandate are led by Republican governors. A story in The Hill recounts the opposition of the Democratic Governor of Kansas, Laura Kelly, who offered a more muted criticism of the mandate than those being trumpeted by her GOP colleagues. The law, she said, is not the “correct…solution” for Kansas.

PAST & PRECEDENT

As the national debate over vaccine mandates enters the federal courts, a number of outlets have looked to history for clues about how things will play out—both in the legal system and in the public square.

History shows that both sides can point to precedents. Emergency rules handed down by the Labor Department’s Occupational Safety and Health Administration have been overturned by legal challenges in the past. At the same time, landmark cases ballast a long history of modern mandatory vaccination, beginning with a 1904 Supreme Court decision, Jacobson v. Massachusetts, in which the court ruled 7-to-2 that Massachusetts could require all adults to be vaccinated against smallpox.

A review of this history by the BBC goes deeper, beginning with the oft-repeated episode of General George Washington’s decision during the American Revolutionary War to require all troops to be inoculated against smallpox. The piece also covers the successful oppositions waged by groups such as vegetarians and the nineteenth-century “anti-vivisectionist movement.”

Time magazine examines the narrower history of mandatory vaccination in American schools, with a focus on the role of public schools in eliminating polio, smallpox and diphtheria. The magazine quotes Richard Meckel, a professor at Brown University, who explains, “Schools have probably been the most important agent of the U.S. being a highly vaccinated population.”

Pew Research takes a statistical approach to the history of vaccination laws. The think tank notes that mandatory immunization is already a part of the country’s federal health policy. “Of the 16 immunizations the CDC recommends for children and teens, all 50 states (plus the District of Columbia) mandate diphtheria, tetanus, pertussis (whooping cough), polio, measles, rubella and chickenpox. In addition, every state except Iowa mandates immunization against mumps.”

Webmd.com also revisits the vaccine drives of the last century and the groups that organized against them, with a focus on the use of popular culture and mass media to support the polio vaccine drive of the 1950s. A March of Dimes ad, for example, showed a procession of Disney characters singing "Hi ho, hi ho, we’ll lick that polio."

But the most influential voice in favor of the polio vaccine was a more famous solo baritone.

“Backstage before appearing on The Ed Sullivan Show in 1956, Elvis Presley received the polio vaccine from New York City officials,” notes the article. “Within 6 months of Elvis's vaccination, immunization rates among American youths grew to 80%."

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