Appeals court temporarily halts rule on larger businesses that would require vaccine or weekly testing
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In this Sept. 14, 2021 file photo, a syringe is prepared with the Pfizer COVID-19 vaccine at a clinic at the Reading Area Community College in Reading, Pa.
NEW ORLEANS (AP) — A federal appeals court on Saturday temporarily halted the Biden administration’s vaccine requirement for businesses with 100 or more workers.
The 5th U.S. Circuit Court of Appeals granted an emergency stay of the requirement by the federal Occupational Safety and Health Administration that those workers be vaccinated by Jan. 4 or face mask requirements and weekly tests.
Louisiana Attorney General Jeff Landry said the action stops Democrat President Joe Biden “from moving forward with his unlawful overreach.”
“The president will not impose medical procedures on the American people without the checks and balances afforded by the constitution,” said a statement from Landry, a Republican.
Such circuit decisions normally apply to states within a district — Mississippi, Louisiana and Texas, in this case — but Landry said the language employed by the judges gave the decision a national scope.
The Biden administration had no immediate comment.
At least 27 states filed lawsuits challenging the rule in several circuits, some of which were made more conservative by the judicial appointments of former Republican President Donald Trump.
The Biden administration has been encouraging widespread vaccinations as the quickest way to end the pandemic that has claimed more than 750,000 lives in the United States.
The administration says it is confident that the requirement, which includes penalties of nearly $14,000 per violation, will withstand legal challenges in part because its safety rules pre-empt state laws.
The 5th Circuit, based in New Orleans, said it was delaying the federal vaccine requirement because of potential “grave statutory and constitutional issues” raised by the plaintiffs. The government must provide an expedited reply to the motion for a permanent injunction Monday, followed by petitioners’ reply on Tuesday.
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On Sept. 9, 2021, President Joe Biden announced new COVID-19 vaccine requirements for government employees, large employers, and healthcare workers to combat the latest surge in COVID-19 cases. Similar vaccine mandates like these are nothing new in the United States—they date back to the Revolutionary War, when smallpox outbreaks hindered the Continental Army as it fought British troops.
Public backlash against vaccine requirements also has a long history in this country, as protests have led states to grant religious and philosophical exemptions from such mandates. The requirement that children be vaccinated before attending public school has sparked debate about whether safeguarding public health trumps a child’s right to an education. Several landmark Supreme Court cases have upheld the idea that public health takes precedence.
During the Revolutionary War, American soldiers were susceptible to smallpox, but the majority of British troops were immune due to childhood exposure or vaccination. The Continental Army’s major military campaigns failed, as smallpox outbreaks swept through its camps. So the Continental Congress authorized Gen. Washington to require his troops to get vaccinated. Subsequent victories of American forces were attributed to the smallpox vaccine mandate.
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This law authorized local boards of health to require smallpox vaccinations for those over 21. Other states subsequently passed similar legislation. However, opposition to mandatory vaccination increased as states began to enforce these laws. Vaccine mandates were repealed in California, Illinois, Indiana, Minnesota, Utah, West Virginia, and Wisconsin. In 1905, the U.S. Supreme Court upheld the authority of states to enforce vaccine requirements in the landmark case Jacobson v. Massachusetts.
Harris & Ewing // Library of Congress
The agency was established by the Act to Encourage Vaccination, which was signed into law by then-President James Madison. Baltimore physician James Smith initially oversaw the agency as the national vaccine agent. The United States Postal Service was required to carry vaccine-related packages under 0.5 ounces for free to aid the agency’s efforts toward mass vaccination.
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Today, all 50 states have vaccine mandates for children attending school. Religious exemptions are allowed in 44 states as well as Washington D.C., and 15 states allow for exemptions because of the parents’ philosophical beliefs. However, all states allow for medical exemptions.
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The mandate was announced in the Urbana Union on July 10, 1867. A photo of the article was tweeted by Central Michigan University professor and historian Andrew Wehrman, who authored “The Contagion of Liberty: Smallpox in the American Revolution.” Professor Wehrman shared the tweet after Ohio Rep. Jim Jordan, whose congressional district includes the city of Urbana, tweeted, “Vaccine mandates are un-American.”
The law contained a conscience clause to allow exemptions to mandatory smallpox vaccination. This clause is the origin of the term “conscientious objector,” which now refers to those who object to compulsory military service. More than 200,000 vaccine exemptions had been issued by the end of 1898.
The case upheld the right of individual states to mandate vaccination. In its decision, the Court maintained that a law requiring smallpox vaccination was a reasonable exercise of the state’s right to protect public health and safety and did not violate an individual’s civil and legal rights under the Fourteenth Amendment.
Office on War Information // Library of Congress
In the case of Zucht v. King, the United States Supreme Court decided that unvaccinated students could be constitutionally excluded from attending schools in the district of San Antonio, Texas. The decision upheld the right of local governments to require vaccinations as a condition for attending public schools, ruling that unvaccinated individuals could be denied access to education. The court argued that public health trumps an individual's right to education.
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The court ruled that mandating childhood vaccines comes under the doctrine of parens patriae, in which the state exerts authority over child welfare. In their decision, the justices wrote that parental authority is not absolute and can be restricted if doing so is in the child’s best interest. They went on to say freedom of religion does not give parents the right to expose their community or their child to a communicable disease, or the child to the possibility of illness or death.
The goal of the $58 million federal program, run by then-United States Secretary of Health, Education, and Welfare Joseph A. Califano Jr., was to get 90% of children under the age of 15 fully immunized by October 1979. A nationwide advertising campaign featuring “Star Wars” characters and celebrity athletes urged parents to get their children vaccinated against preventable diseases, such as measles, mumps, rubella, polio, diphtheria, pertussis, and typhoid. Dr. Alan Hinman, former chief of the immunization program at the Centers for Disease Control and Prevention, called the program successful. “We will meet the target for schoolage children and I think we will have clearly exceeded it when all information is in [by January 1, 1980],” said Hinman.
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In many states, the mandates applied to children at all grade levels and those in licensed preschool settings. The required vaccines were either specified in the law itself or were chosen by the state health officer or state board of health. By the 1998-1999 school year, 46 states, with the exception of Louisiana, Michigan, South Carolina, and West Virginia, had vaccine requirements for all grade levels from kindergarten through 12th grade.
Like Jacobson v. Massachusetts, this case upheld the ability of the government to exclude students from public schools if they failed to comply with vaccine mandates. The court rejected the argument that a child’s right to an education would supersede the state’s need to protect other students from an infectious disease because even if unconfirmed, the risk of infection was too likely.
[Pictured: A middle school student shows proof of immunization against the measles in April of 1989.]
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In 2015, an outbreak of measles occurred among children in California who visited Disneyland and another theme park. Some parents were believed to be claiming a religious exemption to avoid getting their children vaccinated. Since 2015, five more states have eliminated vaccine exemptions in public schools: Connecticut, Mississippi, Maine, New York, and West Virginia.
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The mandate includes vaccines for all federal workers, healthcare workers, and workers at companies with more than 100 employees. It could apply to more than 100 million Americans. In a speech announcing this sweeping initiative, President Joe Biden said vaccinated Americans are losing patience with those who refuse to get immunized, stating, “Your refusal has cost all of us.”
[Pictured: President Joe Biden speaks in the South Court Auditorium on the White House campus Oct. 14, 2021 in Washington D.C. Biden spoke about the coronavirus pandemic and encouraged states and businesses to support vaccine mandates to avoid a surge in cases of COVID-19.]