Rep Julianne Young: On Mandates, Castles, and Constitutionally-protected Liberty Interests
Op-ed from Idaho Representative Julianne Young
Even as vaccine mandates continue to be slapped down by one court after another, employers and employees struggle with gut-wrenching decisions that cut to the core of our most fundamental beliefs and needs as Americans. Too much of the conversation around mandates centers on shame-based labels, unsupportable claims, or politically-polarized slogans. I suggest thoughtfully examining fundamental principles instead.
Some characterize government involvement in this arena as regulatory invasion of free market practices. This perspective fails to acknowledge that government IS responsible to define what constitutes a legally binding contract — and what may not be the subject of a legally binding contract (for example, human trafficking, etc.). This notion also ignores the fundamental nature of the rights at issue. Consider the following from the United States Supreme Court:
“Today, the court concedes that our prior decisions ‘support the recognition of a general liberty interest in refusing medical treatment.’ . . . ‘We are dealing here with [a decision] which involves one of the basic civil rights of man.†Whatever other liberties protected by the Due Process Clause are fundamental [for example, freedom of speech, religion, or the press], “those liberties that are ‘deeply rooted in the Nation’s history and tradition;†are among them . . . The right to be free from medical attention without consent, to determine what shall be done with one’s own body, is deeply rooted in this Nation’s traditions . . . This right has long been “firmly entrenched in American tort law†and is securely grounded in the earliest common law.†(Cruzan v. Director)
But our inquiry shouldn’t end here. Constitutionally-protected rights may have limits justly placed on their exercise. In regard to medical mandates, an Oct 2020 bioethics and global public health publication expounded:
“One of the central tenets of contemporary bioethics is that mentally competent persons have a right to refuse medical treatment, even if the refusal might lead to the individual’s death. Despite this principle, laws in some jurisdictions authorize the nonconsensual treatment of persons with tuberculosis (TB) or other serious infectious diseases, . . . compelling an individual to undergo treatment for infectious diseases may be ethically justifiable in exceptional situations if a refusal of treatment poses a grave risk to third parties, the treatment is not overly burdensome and has been established to be safe and effective, and less-restrictive alternatives, including humanely isolating the patient, are not feasible under the circumstances. The burden [of proof] should be on those seeking to compel unwanted treatment to demonstrate that these requirements have been met.â€
Constitutional rights, unlike other contract terms, merit elevated protection in the law. If government, businesses, or other parties are to coercively impose unwanted medical treatments on others, that party should bear the burden of proof– proof that the individual poses a grave risk to third parties; proof that the treatment is safe and effective; AND proof that there are NO less-restrictive alternatives. Recent medical mandates– mandates that apply to individuals who are NOT sick; that ignore natural immunity, unique work environments, and variable risks-factors such as age; that fail to acknowledge what time is teaching us about the benefits and efficacy of vaccines, and that provide no flexibility or exceptions– fall outside the bounds of appropriate contract limitations, both ethically and constitutionally.
To accept blanket, coercive medical mandates is to accept the premise that raw human-ness– just the act of being a living person potentially subject to infection– poses a grave threat to others sufficient to justify coercive action by some people against others. This legal precedent is far-reaching. If one’s own person is not respected and safeguarded in the law as one’s “castle†there’s not much left to be protected.
