December 3, 2021
We are now 8 days beyond Thanksgiving Day and, sure enough, the daily case count in Alabama is starting to rise again. From Wednesday through Friday (today) of this week, 1,898 cases were reported in the state, 30% more than the number (1,461) reported during the same 3 days two weeks ago (the numbers for Thanksgiving Week are skewed by the holiday). Hospitalizations are also rising, perceptibly if not dramatically - 3.3 patients per hospital today compared to 2.9 per hospital on this day two weeks ago.
These rising numbers do not take into account the Omicron variant, which has been sequenced in 6 states so far, but not yet Alabama. A preliminary study out of South Africa looked at almost 2.8 million confirmed cases of Covid-19 in South Africa and found evidence of a substantial increase in reinfections consistent with the timing of Omicron’s emergence in that country. That suggests Omicron is replacing Delta as the dominant strain in large part due to its increased ability to infect previously infected individuals.
There is cautious optimism, for a variety of reasons, that vaccines will offer more protection against the Omicron variant than natural immunities, however, especially vis-a-vis serious illness. Booster shots appear to be critical. “There’s every reason to believe, as we talk about boosters, when you get a level high enough, that you are going to get ... cross-protection, particularly against severe disease, even against the Omicron variant.” said Dr. Anthony Fauci. As a result, the South Africa study has important implications for Alabama, which has a low vaccination rate and high levels of prior infection.
The South Africa study also highlights the importance of vaccine mandates. In 1905, a man named Henning Jacobson refused a free smallpox vaccination that was mandated by the City of Cambridge, Massachusetts and he was fined five dollars. Backed by the newly formed Anti-Vaccination Society, Jacobson sued the Commonwealth of Massachusetts, arguing that the State’s vaccination law violated his rights under the Due Process Clause of the 14th Amendment.
Adopted after the Civil War and ratified in 1868, the 14th Amendment granted citizenship rights to formerly enslaved persons and ensured equal protection under law. In addition, the Due Process Clause of the 14th Amendment quickly became a cornerstone of the Constitution: “Nor shall any State deprive any person of life, liberty, or property, without due process of law…..”
Writing for the Court majority in Jacobson v. Massachusetts, Justice John Marshall Harlan rejected Jacobson’s claim, concluding that states, exercising their general police powers, have the innate ability to enact laws to protect the health, safety and general welfare of their citizens. The Jacobson decision was affirmed 17 years later in Zucht v. King, with Justice Louis Brandeis noting the settled law that it is within the police power of the government to provide for compulsory vaccination in order to protect its citizens.
In reliance on this line of cases for over 100 years, all 50 states, including Alabama, have adopted laws requiring children to be vaccinated against a host of diseases - like hepatitis, tetanus, polio, measles and mumps. That’s why it is so disturbing that federal judges in Louisiana and Kentucky issued preliminary injunctions this week temporarily halting aspects of President Biden’s executive order on vaccine mandates. The executive order opened the door for requiring healthcare workers and employees of federal contractors to be vaccinated. The order also paved the way for OSHA, the agency charged with protecting workplace safety, to adopt a similar rule for companies having more than 100 workers.
This is not the place to debate the legal nuances of these cases, which almost certainly will land in the U.S. Supreme Court. I will only say there is precedent on top of precedent confirming the government’s power to order compulsory vaccinations to protect the American public. The only remaining question is whether the President, acting through existing executive agencies such as OSHA and the Centers for Medicare & Medicaid Services, is the proper official charged with responsibility to exercise that power.
For me, the answer to that question is easy. Throughout history, the American people have counted on their President to take on threats that endanger them in times of crisis. We are confronting the most deadly public health crisis this country has ever known, a pandemic that has already ended the lives of over 800,000 Americans. With yet another new variant bearing down on us, there is no time to waste. The totals:
11/19 - 473
11/20 - 680
11/21 - 272
11/22 - 253
11/23 - 619
11/24 - 416
11/25 - Not reported
11/26 - 398
11/27 - 357
11/28 - 157
11/29 - 176
11/30 - 477
12/1 - 536
12/2 - 767
12/3 - 595