Masks and vaccines: What price freedom?

This is the land of the free. At least it used to be. Americans don’t like mandates. They don’t like to be ordered around, even if the result is good for them. So they push back against mask and vaccine mandates, even though masks and vaccines are good for them. 

The late Supreme Court Justice Antonin Scalia wondered rhetorically if Congress had the constitutional power to make people eat broccoli, even if it was good for them. Some Americans didn’t like ObamaCare because they were ordered to buy health insurance, even if it was good for them.

Mandates may take different forms. President Biden has just said that nursing homes that do not vaccinate their staffs will be denied Medicare and Medicaid funding. A thoughtful New York federal judge recently conditioned bail on a defendant’s agreeing to vaccination. “In light of the ongoing COVID-19 pandemic and the danger to public health of choosing to forego vaccinations that protect not only the vaccinated individuals but the community as a whole, a condition of bail .. is to require that the defendant receive a COVID-19 vaccination before being released,” wrote Judge Jed S. Rakoff in a court order. 

Mandates are being used to nullify other mandates. The Florida State Board of Education just ordered two counties to allow their school districts to opt out of mask mandates within 48 hours or lose funding. 

We live in strange times. COVID-19 has swept the nation. A new delta variant, far more transmissible than the first, has arrived. The delta variant accounts for nearly 99 percent of new infections, according to the Centers for Disease Control and Prevention (CDC). Emergency rooms are overrun in Florida, North Carolina,  Arizona and Texas — states, among others, with low vaccination rates.

What a state may validly mandate in the face of a public health crisis appears to have been settled in 1905. In Jacobson v. Massachusetts, the Supreme Court upheld the authority of states to enforce compulsory vaccination laws dealing with smallpox. The Court’s decision enunciated the view that individual liberty is not absolute and is subject to the police power of the state. The police power includes the power of the state to order around any of us to protect the health or safety of all of us.

Conservative Justice Amy Coney Barrett recently turned down a request from a group of Indiana University students to block the school’s requirement that students be vaccinated against the virus. Barrett, who is responsible for emergency appeals from Indiana, denied the students’ emergency appeal without comment, without seeking a response from the state and without referring the request to the full court for a vote — suggesting that she and the other justices did not regard the issue as particularly close. The Court under COVID does not appear to be worried about individual freedom.

Greg Abbott, the vaccinated Texas governor, is a fierce opponent of mask mandates. He likes his freedom. Abbott held a super spreader indoor rally where almost no one wore a mask. He just came down with COVID.

Sen. Rand Paul (R-Ky.) thinks people should be free not to wear masks. He says the cloth masks you buy over the counter don’t prevent infection anyway. He argues that the N-95 respirator masks are the ticket.

But, if you don’t happen to have a N-95 handy, the evidence is that a cloth mask (which can be washed and reused) offers some protection to you and much protection to others. Dr. John Brooks, chief medical officer at the CDC, joins countless experts who say cloth masks are effective in preventing COVID spread. “Upwards of 80% blockage” of pathogen, the CDC says. Paul was suspended from YouTube for seven days over the baseless claim. He called the suspension a “badge of honor.”

Compulsory vaccination also clashes with freedom. The parent company of Winchester Medical Center in Virginia had told its 6,300 employees to get jabbed or be fired. Not a problem for most of the caregivers; 75 percent had already been vaccinated. But it’s the principle of the thing. Nurses in scrubs, who should know better, joined over 100 protesters in standing on the side of a road in front of the hospital carrying signage proclaiming, “No Forced Vaccination.” The son of a health care worker chanted, “Honk for medical freedom.” And they did. A passing firetruck, an ambulance and now and then a truck driver all honked for freedom.

One of the protesters, a certified family nurse practitioner at an affiliated urgent care facility at the hospital, said she would consider a shot if she didn’t feel coerced. “This is the hill to die on,” she said.

On the other side of the road were four persons mobilized in a counter protest. Elisabet Michaelson, a home health care worker, said she was “surprised to see there would be vaccine resistance among such an educated and modern health system.” “I don’t understand how you can talk about concepts like medical freedom…Freedom to infect the patient you’re treating? I don’t think so.”

Winchester, a historic hamlet in the Shenandoah Valley, is a blue bastion surrounded by pro-Trump Frederick County. Reportedly, “almost 100 percent” of the populace wore masks at the height of the pandemic. 

Edward Scott Lloyd, a former Trump HHS appointee, introduced a town ordinance to prevent businesses such as Winchester Medical and its affiliates from firing employees for refusing to get vaccinated. The ordinance failed following a hearing at which dozens testified in support of the measure.

Meanwhile, former President Trump holds rallies, blaming President Biden for Americans’ refusal to be vaccinated, claiming that they don’t trust Biden on the vaccine. He said he recommends that his supporters take the vaccine (I guess he wants them around for the next election), but he also believes in “your freedom 100 percent.”

Freedom is precious, not a left-right issue. But I always thought that “love your neighbor” was as American as apple pie.

James D. Zirin is a former federal prosecutor in the Southern District of New York.