We listen to the This American Life show on National Public Radio most weeks, and it often reveals interesting things about, uh, this American life. On Saturday, as we drove around the Main Line doing chores, we listened to a This American Life program that illustrated the Tolstoyan ditty about how unhappy families are each unhappy in their unique way. The family at issue in the program suffered from many pathologies, but the particular pathology that ended up killing the father and brother was anti-vax idiocy. The father and brother believed that being around people vaccinated against Covid was dangerous because such people shed the virus. Nonsense. Then, after said father and son came down with Covid, they refused the treatments recommended by the doctors. The father and son were convinced that doctors were recommending the wrong treatments because the doctors received bonuses for recommending such treatments. Fatal nonsense.
We don’t want to be accused of doltish both-side-ism, but there is something silly about both the trust-the-science and the do-our-own research crowds. For most people, trusting the science really means trusting what some doctors say. It is not as if those trusting souls are doing any actual science or even know very much about it. Similarly, those who claim to do their own research are simply choosing to trust outliers or quacks – they are not actually conducting experiments or, heaven help us, clinical trials.
We’ll disclose our bias right now. We trust the medical consensus. Sure, it is sometimes wrong. Maybe it is occasionally bedeviled by bias. But it is usually evidence driven and it is subject to disproof. It is the best we’ve got. We defer to “the science” (we take that to mean the medical consensus, which is always subject to revision as new evidence pours in) and most courts do the same.
The court in Legaretta v. Macias, 2022 U.S. Dist. LEXIS 82330 (D.N.M. May 6, 2022), took a logical approach to both the law and the science. A New Mexico county issued a directive requiring first responders to receive a Covid vaccine or request a reasonable accommodation. We like and respect first responders enormously. We at one point worked closely with some. But there is no getting around the fact that there is a stubborn minority among them who refuse to be vaccinated against Covid (even if they had all the usual childhood vaccines and should be grateful for that). Some employees in the New Mexico county refused to be vaccinated and they subsequently experienced negative employment consequences. Some were redeployed, some were demoted, some quit, and some were fired.
Some of them then filed an action challenging the vaccine mandate. They alleged that the vaccine mandate violated the Federal Food, Drug and Cosmetic Act (FDCA), violated the plaintiffs’ substantive due process rights, was an unconstitutional condition, constituted wrongful retaliation in violation of New Mexico’s whistleblowers legislation, and violated international human rights laws.
There wasn’t an ounce of merit to any of these claims and the court dismissed the case.
The plaintiffs argued that the New Mexico vaccine employment mandate violated, and was preempted by, an FDCA provision forbidding mandated vaccines that were unapproved. Normally, we embrace preemption arguments as if they were adorable puppies. Not this time. When the plaintiffs filed the case, the vaccines received only emergency authorization, but several later received full approval. Even for those vaccines still under the emergency, rather than full, approval, the FDCA did not prevent an employee vaccine mandate. Rather, the FDCA required informed consent – which was given in this case.
Substantive Due Process
Long ago, when we were in law school and dinosaurs walked the earth, we were taught that substantive due process was a dead letter since the New Deal SCOTUS corrected its Lochner era error. Who knows if that is still mainstream jurisprudential thinking, or even if there is such a thing anymore as mainstream jurisprudence. Anyway, the court in Legaretta followed the current dance steps for substantive due process analysis, and held that the vaccine mandate neither shocked the conscience (via arbitrary and unrestrained executive action) nor deprived the plaintiffs of fundamental rights (via legislative action that served no compelling interest). The right to practice one’s chosen profession does not invoke heightened scrutiny. (If it did, we’d sue somebody on the theory we should be a professional golfer with two Lamborghinis in the garage.) Instead, the correct inquiry is whether there was a rational basis for the vaccine mandate. Here’s a news flash – Covid is dangerous and vaccines protect people. Or forget about news flashes or anything new. The ancient Jacobson SCOTUS decision (decided the same term as Lochner) settled the issue long ago that society can protect itself from a disease epidemic. The plaintiffs tried to evade Jacobson by arguing that the Covid vaccine is not a real vaccine and is insufficiently supported by data. Nice try, we say with utmost insincerity. The Legaretta court sided with the people wearing stethoscopes as opposed to those wearing tinfoil hats, and rejected the plaintiff position.
The unconstitutional condition doctrine forbids burdening enumerated constitutional rights by coercively withholding benefits from those who exercise those rights. But the plaintiffs never identified a fundamental right and, while they were faced with a tough choice, they still had a choice. If they chose to be stupid, that is on them. In the NPR radio show we listened to, the surviving sister said that she toggled between feeling sorrow for the loss of her father and brother and feeling that they had be clowned themselves. Yep.
International Human Rights
The Nazis performed horrible medical experiments on people and we all (let’s hope) can agree that was really bad. The Nuremberg Code forbids such experiments. The plaintiffs’ invocation of that Code in this context is so wrongheaded as to be offensive. Big surprise: there is zero international legal authority that vaccine mandates intended to combat a worldwide plague equate to the experiments done in German concentration camps. No international norm supports the plaintiffs’ claim, and the court gave the claim the short shrift it deserved.
State Law Claims
Maybe the New Mexico state law claims were not quite as bereft of factual and legal support as the federal and international law arguments. Maybe. We doubt it. But we’ll never know because the Legaretta court declined to decide the plaintiffs’ pendent state law claims. The federal court washed its hands of these claims.
As well know from our Covid experience, washing hands is a good idea.
If any anti-vaxxers wish to send us hate email, go ahead. Knock yourselves out. To you, we say what the Canadian citizen said when her anti-vaxxer city councilman showed up at her door. Get on YouTube and find it — if you can figure out how.