The coronavirus is everywhere: in the air, on surfaces, in our respiratory tracts, and, over the past week, at the US Supreme Court. On January 10, key elements of US President Joe Biden’s controversial “vaccine-or-test” mandate provisionally went into force, requiring that all workers at companies with more than 100 employees be vaccinated or tested regularly for COVID-19. With roughly 84 million Americans affected by the mandate, all eyes were on the Supreme Court, which on January 13 struck down the measure.
With the support of a massive body of scientific evidence, the US Occupational Safety and Health Administration (OSHA) argued in favour of the mandate, emphasising that workers “face a grave danger … in the workplace.” But the National Federation of Independent Businesses and 27 states (all Republican-controlled) contended that the vaccine is an “invasive, irrevocable, forced medical procedure” that should not be imposed en masse.
Although the technical question before the Court was whether OSHA has legitimate authority to enforce the mandate, the justices also considered whether COVID-19 does indeed pose a threat distinctive to the workplace. Yet, with only 62% of Americans vaccinated, the stakes were – and are – much bigger than these questions imply. At issue is whether the 38% of Americans who refuse to get the vaccine should be permitted to imperil the majority’s ability to earn a livelihood without facing unnecessary risks to their safety. And even this broader framing still doesn’t address the risks imposed by the unvaccinated on health-care workers, parents, separated families, patients in need of non-COVID-related treatments, and all the children whose development has been disrupted or derailed.
Despite the unprecedentedly rapid development of effective vaccines, the pandemic has entered its third year and is still raging, owing to mask hesitancy, global vaccine apartheid, and, crucially, vaccine refusal. Its persistence is due not to a failure of science but to a failure of our other institutions, starting with the rule of law.
Specifically, a dubious legal theory is to blame. Many legal scholars continue to take pride in a highly formal interpretation of the rule of law as something that is resolutely neutral and amoral, even as it fails spectacularly in helping us confront the most urgent challenges of the day. The pandemic is a paradigmatic case: We are stuck with a dithering legal system that stands by and watches as the toll of preventable deaths continues to rise, and whose moral authority and relevance are increasingly at risk as a result.
The problem lies in a conception of law that is rooted largely in legal positivism, the leading school of jurisprudential thought, whose most stringent interpretation argues that law derives its authority from “pedigree” (where it comes from) irrespective of morality (whether the law is “good” or “bad”). In reality, however, this amounts to an excuse not to commit to an account of collective welfare and instead defer to individual choice.
Even if this perspective was acceptable in the midst of a surging pandemic, it would be deeply flawed. The rule of law is an intricately intertwined, mutually reinforcing combination of formal rules and social norms. It lives in, and functions through, its participants’ collective moral consciousness. The role of courts, then, is not merely to apply formal rules but also to shape social norms and, when necessary, act as a society’s conscience. A close analogy would be a parent exercising her judgment by intervening in a sibling squabble.
This is not to suggest that “the law is what the judge ate for breakfast.” Rather, scholarly research in law and psychology, and breakthroughs in the cognitive sciences, show that law is a fundamentally social institution, and that individuals respond powerfully to cues provided by institutions of authority (what psychologists call “evoking”), particularly when the cues embody a strong moral position.
The positivist position fundamentally misses this point. It ignores the fact that the historically warring nations of Europe have been stitched together within a largely integrated bloc through the jurisprudence of the EU Court of Justice. Similarly, the Indian Supreme Court’s 2018 landmark judgment decriminalising homosexuality has played a significant role in changing norms in that country.
The US Supreme Court had a chance both to do the right thing and to make history, by helping to end this protracted – and increasingly preventable – pandemic and enriching the rule of law in the process. The United States – and indeed the world – needed a decision with the moral force of Brown v. Board of Education, not more of the grubby cynicism that we saw in Trump v. Hawaii (the “Muslim ban” case).
The Court could, and should, have taken a stand on vaccines, especially considering that it has already been doing so with respect to the “right to life” in other contexts. Fetuses are, for example, far more ambiguous instances of “life” than the workers affected by the mandate, who are clearly moral agents. And the Court has ruled against the choice to end even one’s own life in the context of euthanasia.
Legal judgments are about trade-offs, and in this case there was a clear choice between collective safety or a misguided notion of personal freedom (as the philosopher Peter Singer has argued). While large employers like Citigroup and United Airlines have gone so far as to impose a “no jab, no job” policy, the OSHA mandate took a much more moderate approach to creating a secure work environment.
Moreover, even if the case before the Court had not been open and shut, the common good ought to have been the tie breaker. But instead, the court’s vote was for individual liberty at all costs: the core, if hidden, value of legal positivism. The circus surrounding Novak Djokovic, the anti-vaccine tennis star who was recently detained by Australian border agents, is just a microcosm of the confusion that will now be unleashed by the decision striking down Biden’s workplace mandate. With hospitalisation rates breaking records and the US death toll approaching one million, the Court has missed a major opportunity to exercise guardianship over a divided polity, and to assert its relevance and moral authority.
Antara Haldar is University Lecturer in Empirical Legal Studies at the University of Cambridge. Copyright: Project Syndicate, 2022, and published here with permission.
49 Comments
So when courts do what the writer supports (e.g. rights for homosexuals as cited in the Indian supreme court example) then they are doing the right thing.
But when the US supreme court doesn't do what the writer supports, then they missed a chance to "do the right thing"... Rather, since the number of companies in America with more than 100 employees is apparently 2%, perhaps the writer should be asking why the Biden administration seems to be targeting only them?
...persistence is due not to a failure of science but to a failure of our other institutions, starting with the rule of law.
No dear writer, it was a failure of governments in communication, decision-making, and policy-making, and science (i.e. scientific institutions) in transparency, objectivity and staying away from politics/corporate influence, not law.
Exactly right.
I actually think arguments for and against a vaccine mandates are finely balanced . I am not in favor of a mandate - but would not find a general mandate enforced by the government particularly objectionable.
On the other hand a selective mandate , with enforcement outsourced to "big business" is clearly designed to dodge government responsibility and to foster resentment against said "big business" , fitting nicely in the overall left wing agenda.
AndrewRiddell5886,
It proves nothing, but I was interested to see that the post above yours had 11 likes and yours received none. Of course we all want our individual freedoms, but society can only function if these rights are constrained in society's interests.
To me, vaccination is a public health issue and I take the utilitarian view espoused by Jeremy Bentham-the greatest good of the greatest number. Democracies wrestle with competing rights all the time and can never hope to please everybody. I mostly lean towards societal rights over individual rights, but on free speech, I lean the other way. I see freedom of speech as a cornerstone of a true democracy, so would prohibit very little. For example, denial of the holocaust is now a crime in some countries and however repugnant I find such denial, I would not prohibit it. Sunlight is the best disinfectant.
This ruling has overturned a previously well litigated and established principal that an individuals rights and freedom are trumped by the rights of the wider population to be protected from the consequences when those freedoms executed. 1905 USA Supreme court -
https://www.msn.com/en-us/news/politics/how-a-supreme-court-decision-fr…
Where will this end. I demand the freedom to drive down the road on the wrong side. It goes to the very heart of the whole justice system. God help the USA. They have destiny ending in disaster.
At issue is whether the 38% of Americans who refuse to get the vaccine should be permitted to imperil the majority’s ability to earn a livelihood without facing unnecessary risks to their safety.
Of course, when you frame the issue in such hyperbolic terms as these, it makes the answer seem simple. You can then spend the rest of the article pretending to hold the moral high ground, avoiding those pesky, difficult questions which real journalists - and the courts - tend to address.
It would be nice if we knew how many people were actually dying FROM covid, rather than WITH covid, because it would make a rational debate much more informed. Even so, total deaths WITH covid in NZ are an order of magnitude lower than the 2% we were told it would be, and that may include the guy who was shot to death but died with covid.
I suggest that the number of people with bullet wounds and COVID are not material. COVID19 is particularly severe for those with underlying health conditions but that doesn’t mean much as many people have some underlying health condition which is manageable. It sounds like you would blame the coke for the hangover after drinking rum and coke all night.
A lot of well-written hot air.
The Supreme Court ruled against the OSHA mandate because they correctly opined that it was a "major policy" that needed to be passed by Congress as normal legislation, rather than rammed through by the Executive with no debate. It's simply a reflection of separation of powers.
We have similar but less explicit separation of powers in NZ.
I agree, excellent post. I am personally strongly in agreement with vaccine mandates, but the proper process should always be followed, respectful of democratic principles and of separation of powers. Ramming such important actions through the executive with no debate was not the right way to implement it.
This is archetypal 21st Century tertiary-write & standard fare from our group-thinkers these days. It's the rights of the individual that real freedom is based on. The rights of the individual are so hard to implement & very costly to administer. That's why everyone who doesn't have these freedoms wants to live in our societies. We are being undone from within. It is the cancer (cancel) of our culture.
I’m glad the author mentioned Novak Djokovic. His case highlights how misguided policymakers have become. People should understand that getting covid gives you permanent immunity.[1] Getting it twice appears to be an astonishingly rare event![2] Here’s a paper where authors identify confirmed instances of reinfection (a few suspected out of literally billions of cases).[3] Compare and contrast that to this recent lancet paper (thanks Profile) when they highlight how completely useless the vaccine is against Omicron.[4]
So if you’ve already had covid19 then why would you take the vaccine and risk getting myocarditis, pericarditis, reactivated herpes virus, death, or any number of unknown adverse long term effects. The calculus becomes even clearer when you consider that risks of vaccine induced myocarditis / pericarditis are actually greater for covid-recovered individuals.[5] If you’ve already had covid then taking the vaccine is actually a pretty dumb thing to do. The risk / benefit ratio is numerically some non-trivial number divided by zero. It’s basically infinity. It doesn’t make any sense! Vaccinating children is similarly dangerous, unnecessary, and futile.[6]
We’ve done away with the Nuremberg principals of medical ethics by forcing medical procedures on people against their will. Primum non nocere (do no harm) seems to have gone out the window too. The author of this article is essentially arguing that we should get rid of the “separation of powers” between the government and judicial system. It’s amazing what you can justify in the name of “protecting people”.
Bad news I'm afraid, omicron completely changed the picture of natural immunity. The UK finds previous infection about as effective against omicron as two vaccine doses, and not as effective as three.
It is also much safer to receive three vaccine doses than to catch covid with no immune protection. Far more pleasant and less disruptive, too.
http://www.imperial.ac.uk/news/232698/omicron-largely-evades-immunity-f…
https://www.nzdoctor.co.nz/article/undoctored/previous-covid-19-infecti…
Copied from profile's link the other day:
Median IFR for Covid
0.0013% 0-19
0.0088% 20-29
0.021% 30-39
0.042% 40-49
0.14% 50-59
0.65% 60-69 years
Odds of winning lotto:
0.00003% per ticket
You are out by at least a couple of orders of magnitude with your analogy I'm afraid. Vaccination seems to reduce risk of death by ~90% - for my age range I essentially remove a 1/5000 chance of dying, for the same of taking 20 minutes out of my day twice. No brainer.
You're missing the point.
The risk to most people from COVID-19 is low enough that, even if the risk of death is reduced by 90% as you say, its a very minor reduction in absolute terms. The 90% makes it sound very impressive, but for most people, the effect is negligible.
The people who need protecting are a minority, and this is where efforts should be focused, not turning the whole world upside down for the sake of reducing most people's risk by less than the amount they already accept by driving to work every morning.
Missing the point? I was merely fleshing out your point with some actual numbers rather than a vague equivalence to the lottery. I was directly addressing your point about the odds involved. Is the problem that the numbers don't support your point?
Take a vaccine is not turning the world upside-down. We could have more meaningful discussions about the merits of lockdowns but that wasn't the topic. There's a simple cost-benefit analysis to any action we take.
For me, the cost of receiving a vaccine is ~1 hour of my time all up, ~3 seconds of sharp pain all up, and a ~3 in a million chance of death from a reaction to the vaccine.
The benefit of receiving a vaccine is reducing my chance of dying from Covid from 1/5,000 to more like 1/50,000. I came to my conclusion quite quickly - what am I missing?
You're missing long-term data on the effects of the vaccine for starters. Until we have that data, there's no way anyone can claim that the risk from COVID-19 is higher, especially as the number and frequency of jabs we need to take increases.
The risk from COVID-19 for most people is low enough that they shouldn't need to take that gamble. If they do want to, that's up to them, but its not as simple a calculation as you're trying to make out it is.
Interesting table mfd. Here's a thought experiment. Imagine what percentage of people in each of those age brackets have well known covid19 risk factors - obesity, cardiovascular problems, etc.. This is the crux of the Great Barrington Declaration, ie. focused protection.
Now that is true. The vulnerable will skew the distribution, possibly quite dramatically. In my situation, my 1/5000 risk based on the whole population would have to be reduced by 99% to compare with the risk of the vaccine - I'm not sure the stats would stretch that far if properly broken out.
Of course talking about mortality is only part of the picture. I'm sure we all know people who have caught Covid and suffered ongoing symptoms - my healthy brother had exhaustion for a month or so afterwards. He's overseas and caught it before he was vaccinated. Meanwhile I know dozens, maybe hundreds, of vaccinated people. Worst response was a day or two off work with exhaustion. Most common response is feeling a little tired.
fat pat , loving your work , if only our gov knows this ,
maybe they do , but its all about the votes now .
the new covid laws they brought in will they all be cancelled after.
We need to hang on to what freedoms we have , l am dbl vax .
but pro choice , l think its crazy to vax children . right shoot me..
The vaccine doesn't stop the spread, if people who are vaccinated, think they are more at risk from people who aren't, they are misinformed. Vaccines don't even prevent lockdowns and you don't even need to look far to see the truth of that. In fact even with over 90% vaccinated the NZ health system is apparently close to being overrun.
I'm fully vaxxed but I disagree that it should be mandatory. I don't know what the long term health affects from the vaccine are. I do know it can kill people in the short term and that it affects the heart, if in 5-10 years we find that vaccinated people have higher rates of heart disease, I would not be surprised. It won't be the first time a .govt cure has been as bad as the disease. Anyone remember when DDT was safe and used to prevent malaria?
I don't like the discrimination of people who don't want to be vaxed, especially when it doesn't affect anyone else.
At it turns out the vaccinated are spreading Omicron more than the unvaccinated. Does this mean we should now stop the vaccinated from entering the workplace to keep the unvaccinated safe.
Why do people who have had the virus have to be jabbed. They now have immunity possibly for 100years.
The narrative does not add up
I have already linked to this in this thread, but it is absolutely not true that previous covid infection protects you from Omicron. Previous infection is no better than two vaccine doses, and inferior to three vaccine doses.
http://www.imperial.ac.uk/news/232698/omicron-largely-evades-immunity-f…
Got a link to back up your statement about the vaccinated spreading Omicron more than the unvaccinated?
Your link 100% proves that vaccine is useless against omicron. As for reinfection I don’t think so! The paper devotes 4 lines of text to mention a 5.41 times higher relative risk. What's the absolute risk? They don’t want to say of course because it's minuscule.
That's a Niel Fergusson paper by the way. Remember that's the guy who came up with the ridiculously inaccurate SIR models that were used to justify lockdown. He's fearmonger.
The inferred absolute risk is in there. Previously a 15% chance of reinfection, now increased to ~81%.
"in the pre-Omicron era, the UK “SIREN” study of COVID infection in healthcare workers estimated that prior infection afforded 85% protection against a second COVID infection over 6 months. The reinfection risk estimated in the current study suggests this protection has fallen to 19% (95%CI: 0-27%) against an Omicron infection."
Meanwhile, vaccine + a booster is performing well. Sadly the double shot is roughly as useless as previous infection.
"Depending on the estimates used for vaccine effectiveness against symptomatic infection from the Delta variant, this translates into vaccine effectiveness estimates against symptomatic Omicron infection of between 0% and 20% after two doses, and between 55% and 80% after a booster dose."
What a weaselly paper. Reference 15, the SIREN data that Neil Fergusson refers to, is a really low quality MedRxiv preprint. Here it is. It’s a completely flawed study that didn’t even try to account for false positives. If you want to prove that someone got covid twice then you need to (A) confirm the first positive and second infections were true positives at a low cycle threshold. (B) do the phylogenetic testing to confirm different strains (C) have at least one and ideally two negative RT-PCR testes between infections. (D) have clinical recurrence of symptoms accompanying the second positive PCR. They did none of that. Have a look at the comments at the bottom of the preprint lol.
I’ll say it again – Getting covid19 twice is an exceedingly rare event! Once you’ve had it then you’re probably immune for life.
Similar conclusion from this pre-print article - ~10% chance of reinfection for previous strains turns into ~50% chance for Omicron. As with so many things in this pandemic, we'll have to wait a while for good quality data.
https://www.medrxiv.org/content/10.1101/2022.01.05.22268782v1.full.pdf
This data is number of people infected, not who is spreading the disease. Is that what you meant to say?
Good to see another set of data suggesting the vaccine remains very effective at reducing hospitalization and death for omicron though. The UK does produce useful statistics.
Despite the unprecedentedly rapid development of effective vaccines, the pandemic has entered its third year and is still raging, owing to mask hesitancy, global vaccine apartheid, and, crucially, vaccine refusal. Its persistence is due not to a failure of science but to a failure of our other institutions, starting with the rule of law.
It's not raging due to vaccine refusal. What utter nonsense. We're now seeing omicron infection is more likely in the vaccinated. Double vaccinated people have no protection against omicron (as per CEO of Pfizer), with the boosted having very limited protection for a short period. The argument is that the vaccines may prevent hospitalisation, even so, that won't stop a pandemic.
A good vaccine in the previous (now revised!) definition would prevent infection and therefore spread. It would enable herd immunity and would bring the pandemic under control. This is what we were promised!
These mRNA vaccines are not very effective and they now have some pretty worrying safety signals.
With Omicron in the UK if infected
6 people go to hospital per 1000 for unvaccinated
with booster shot 2 people per 1000 end up in hospital (booster only has a good month of decent protection)
75% of hospitalisations are with people with 4 or more comorbidities.
The Who and UK heath Agency now saying they do not recommend continued boosters as they can harm the immune system.
So if you are a healthy person why would you take the vaccine?
We see infection dramatically escalating for vaccinated and unvaccinated across the 2 1st weeks UK data and this is very catastrophic data…it shows us clearly that the vaccinated are getting more infected, and while the unvaccinated are at risk form the infectious pressure of OMICRON, they are at potential risk of spread from the vaccinated too. This data is very alarming and we must STOP this vaccine, stop, and DO NOT vaccinate children. We will subvert their INNATE immune system and turn them into asymptomatic super spreaders, as well as leave them defenseless for a host of pathogen beside COVID virus.
Know of 2 people, both healthy and in their sixties, who have had severe strokes recently. Both were double vaxxed. Just a coincidence I guess. My problem with the MRNA vaccines is the lack of testing before they come on the market. 3 months compared to 3 to 4 years for the "true" vaccines.
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