Vaccine Passports – Not Just to Cut Velvet Rope

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Vaccine Passports – Not Just to Cut Velvet Rope, Certificates May Also Provide New Constitutional Rights

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The Need For Vaccine Passports

WASHINGTON, D.C. (May 11, 2021) - As the New York Times is reporting, if you "want to party, you might need a 'vaccine passport," since, "at some parties and nightclubs, C.D.C. vaccination cards are the new velvet rope." Similarly, CBS News notes that "sports stadiums [are] asking fans for their 'vaccine passports.'"

And even more comprehensively, ABC TV News reports that "vaccine passports could be used for travel, concerts, sports as life returns to normalcy," noting that "historically, a yellow fever vaccine card was used for the past 50 years and was recognized internationally."

Also, a growing number of universities will require students to present proof this fall that they have received the COVID vaccine, just as many schools for a long time have required younger students to establish that they have received other vaccinations.

But, says public interest law professor John Banzhaf has concluded, COVID vaccine passports, cards, or other certifications can do more than cut velvet ropes, get people into concerts and sports events, and permit various forms of travel - they may also be in the process of creating new constitutional rights. He explains why he and other constitutional scholars are beginning to arrive at the same conclusion.

While courts have generally upheld government-imposed limits on travel, and even on some First Amendment activities, because the extreme risks of spreading and/or contracting COVID-19 were seen as warranting at least temporary restrictions on important rights, things may soon be very different legally since the balance of rights vs. risks would have completely changed for Americans who have now been vaccinated, argues Banzhaf.

Preventing 95% Of Infections

If, as data accepted by the FDA suggests, vaccination prevents over 95% of all COVID infections, and an even higher percentage of the more serious cases requiring hospitalization and/or resulting in death, as well as also largely preventing the spread of the deadly disease to others, the legal justification for restricting vaccinated adults from travel (a "fundamental right"), gathering in a house of worship or attending a political rally or protest (all protected by the First Amendment), and engaging in many other activities will greatly diminish, perhaps to the vanishing point.

Indeed, law professor Ilya Somin (George Mason) calculates that, for vaccinated Americans, the risk of death from COVID is many times lower than the risk of death from the common flu - and few if any judges would be convinced that the risks of flu would justify overriding these valuable rights.

Somin points out that “the rate of death and serious illness among fully vaccinated Americans (132 deaths among over 95 million people, as of April 26), is vastly lower than the death rate caused by an average pre-pandemic flu season (up to about 35,000 deaths in a US population of some 330 million)."

And this vast disparity in death risk would remain, he notes, even if - as some have suggested - the death rate from COVID has been significantly unreported.

A Compelling Governmental Interest

Any law, regulation, executive order, or similar governmental edict which impinges of a fundamental right must - to withstand constitutional scrutiny, and invalidation by a judge in a court challenge - be proven to serve a "compelling governmental interest" and be the "least restrictive alternative" which is available.

Preventing the spread of a virus which - at least to vaccinated citizens - is many times less dangerous than the flu (as to which traditionally no restrictions have been imposed on adults) is hardly a compelling governmental interest justifying the curtailment of fundamental constitutional rights, argues Banzhaf.

Even more important, he suggests, is that limiting the activities of all adults to prevent the spread of COVID from only a few is hardly the least restrictive means available.

Far less restrictive of these important rights, and virtually as effective, would be to impose the restrictions only on those in the minority who are not fully vaccinated, and allow those not at risk, to themselves or to others, to be exempt from the government restrictions.

This then is not just a wise policy decision, but also a constitutional imperative, argues Banzhaf.

Some legal scholars, including law professors Kevin Cope (U. of Virginia) and Alexander Stremitzer (UCLA), have argued that not only are "exemptions for the vaccinated . . required by the Constitution, but also that "governments may be constitutionally required to provide a vaccine passport program for people under continuing restrictions."

The Constitution Requires The U.S. To Offer Passports

They wrote, in their article entitled The Constitution Requires the U.S. to Offer Vaccine Passports:

"Under the U.S. Constitution, the government may not tread on fundamental rights unless the policy is 'the least restrictive means' to achieve a 'compelling" government interest. . . . Before vaccines, blanket lockdowns, quarantines, and bans on things like travel, public gatherings, and church attendance were a necessary measure to slow the pandemic. The various legal challenges to these measures mostly failed—rightly, in our view. But now, a small but growing set of the population is fully vaccinated, with high efficacy for preventing transmission and success rates at preventing serious illness close to 99 percent or higher."

"Facilitating mass immunity—and exempting the immunized from restrictions—is now both the least liberty-restrictive method for ending the pandemic through herd immunity and the most effective one. Imagine a fully vaccinated person whose livelihood is in jeopardy from ongoing travel or business restrictions. She might go to court and argue: 'I present little or no danger to the public. So restricting my freedoms and preventing me from contributing to society and the economy isn't rational, let alone the least restrictive means of protecting the public. Since you're not lifting restrictions for everyone, the Constitution requires that I be exempt.' This argument alone should be enough to justify mandating that passports be made available where COVID restrictions are still in place."

Prof. Somin doesn't go quite so far, but he does conclude that:

"This reasoning should lead to the invalidation of the application of Covid restrictions to the vaccinated in any situation where those measures restrict a right subject to heightened scrutiny, whether it be freedom of speech and assembly, freedom of religion, or the right to travel. All three have at times been severely constrained during the pandemic, and courts have often upheld the constraints based on the the severe threat posed by Covid. That threat is now vastly reduced by vaccination."

In summary, even if the Constitution does not necessarily require that governments take the affirmative step of issuing its own vaccination passports to facilitate a system under which those who were fully vaccinated would be exempted from many government-imposed restrictions, any legislation, executive orders, or other government-imposed limits adopted because of the pandemic constitutionally must exempt (or at least impose lesser restrictive conditions) on those who have been vaccinated, but not necessarily issue government proof of vaccination (vaccine passports or certificates).

Finally, at the very least, governments probably cannot constitutionally prohibit private businesses from doing what the government itself should be doing; providing exemptions and special treatment for those who can show, by whatever means, that they have been full vaccinated.

For example, if restaurants can require customers to wear shoes and shirts (arguably for health reasons) or males to wear ties (for no reason other than custom), it's hard to see how government can or should legally and constitutionally prevent restaurants and other businesses from requiring customers to be vaccinated, at least once such vaccinations become sufficiently widely available, argues Banzhaf.

Indeed, he suggests, restaurants and other businesses which do not take reasonable steps to protect their customers from the known deadly dangers of COVID - e.g., by limiting access to only those who are fully vaccinated, or at least permitting vaccinated customers to be separated from those much more likely to be contagious - would appear to be acting negligently, and therefore subject to being sued by any customer who claims to have become infected during a visit to the business establishment.