Tag Archives: vaccines

Why Judges Matter

Constitution, , , ,

I was astonished when I read this report in The Washington Post, mostly because the judge was so obviously, incredibly wrong about both the law and the facts.

U.S. District Judge Reed O’Connor found that the pandemic “provides the government with no license to abrogate” the freedoms that any American has, and that the service members had a right to avoid getting a vaccination on religious grounds.

“This Court does not make light of COVID-19′s impact on the military. Collectively, our armed forces have lost over 80 lives to COVID-19 over the course of the pandemic,” O’Connor wrote Monday in a 26-page order.

But the judge added that the “loss of religious liberties outweighs any forthcoming harm to the Navy” and that “even the direst circumstances cannot justify the loss of constitutional rights.”

A first-year law student would know that “religious freedom” does not give citizens the right to harm others. I used to explain to my students that your sincere belief that God wants you to sacrifice your newborn does not trump laws prohibiting you from doing so.  As “originalist” Justice Scalia wrote in Employment Division, Department of Human Resources of Oregon v. Smith, general laws prohibiting drug use take precedence over the plaintiffs’ right to participate in tribal religious observances that included smoking peyote.  

Smoking peyote during a religious ceremony didn’t harm anyone. A requirement that military personnel be vaccinated  protects others against a very dangerous disease. It would clearly be constitutional even if vaccine denial posed a genuine religious concern.

But it doesn’t.

The fact is that no religion  (with the possible exception of Jehovah’s Witnesses and Christian Scientists, who don’t believe in any medical science) teaches vaccine denial. If I simply invent a “religious” precept that is not grounded in the actual doctrine of my faith, I can hardly demand that American courts respect my “religious” beliefs.

I was sufficiently incensed by this ridiculous ruling that I decided to Google the judge, who–unsurprisingly–is a high-profile member of the Federalist Society.

Here’s what the Texas Tribune had to say about him when he ruled that Obamacare was unconstitutional. (Remember that?)

In 2015, it was an Obama administration effort to extend family leave benefits to gay couples. In 2016, it was an Obama administration guideline allowing transgender children to use school bathrooms that align with their gender identity. And on Friday, it was the entirety of Obamacare that U.S. District Judge Reed O’Connor struck down as unconstitutional after a Texas-led coalition of 20 states sued this year to kill it.

Over the past four years, O’Connor has handed Texas major wins in several high-profile Texas v. United States lawsuits. And it doesn’t seem to be a coincidence that those cases landed in his court. The North Texas judge has emerged as something of a favorite for the Texas Attorney General’s Office, a notoriously litigious legal battalion known for challenging the federal government in cases and controversies across the country.

Since 2015, almost half of challenges to the federal government that Texas filed in district courts here landed in O’Connor’s courtroom, attorney general’s office records show. He is one of several dozen federal judges of his rank in the state.

The Obamacare decision, which was reversed by higher courts, was criticized by both conservative and liberal legal scholars as misguided and politically motivated.

The conservative legal scholar Jonathan Adler and the liberal legal scholar Abbe Gluck came together to write in The New York Times that the decision “makes a mockery of the rule of law and basic principles of democracy.

O’Connor is routinely described as a reactionary, and his vaccine decision is just the most recent evidence that he ignores legal precedents incompatible with his far-right politics. In 2015, he held a portion of the federal Gun Control Act of 1968 unconstitutional and enjoined the federal government’s definition of marriage in the Family and Medical Leave Act of 1993.

In 2016, as previously noted, he struck down an Obama administration rule requiring that transgender students be allowed to use the bathroom corresponding to their gender identity. In 2018, he ruled that the Indian Child Welfare Act was unconstitutional. That 1978 law was passed in response to concerns over the high number of Indian children that were being removed from their families by public and private agencies and placed in non-Indian families. It gave tribal governments exclusive jurisdiction over children who reside on, or are domiciled on a reservation.

It goes on.

O’Connor’s rulings are frequently reversed, but the damage done goes far beyond the time and money wasted on appeals. The initial publicity garnered by his off-the-wall rulings gives an aura of legitimacy to arguments that have no legitimacy, and that are inconsistent with settled constitutional precedents.

Thanks to this decision, people will die. Unnecessarily.

Judges matter.

There’s A Monster Under The Bed!

Public Policy and Governance, , ,

I’ve given up trying to understand the anti-vaccine crazies. The arguments they pose are nonsensical: “I don’t know what’s in them!” (They don’t know what’s in the hot dogs they eat, among a million other things.) “There’s a chip inserted by Bill Gates!” (Yes, it’s in the cell phone you cheerfully carry!) “My friend’s brother got diabetes after getting his shot!” (“After this, therefore because of this” is one of the oldest logical fallacies…). And don’t even get me started on the claims that requiring sensible public health measures violates the Constitution– people who insist government can require a woman to carry a pregnancy to term while arguing that government lacks authority to require people to get vaccinated, are beyond the reach of reason.)

Logic and reason, clearly, have nothing to do with it. 

I was recently sharing my frustration with the young woman who cuts my hair, who told me that her sister– a nurse in a local hospital –is equally frustrated. And angry. According to her sister, the hospital is coping with overflow conditions caused almost entirely by unvaccinated people, and they are not just sick, but unpleasant and irrational. A large number of them refuse to believe they have Covid, insisting that it must be something else, because Covid is a hoax. 

In fact, she said, her sister has characterized these patients as “big babies,” who are making the job of tending to them considerably more difficult than it needs to be.

Evidently, those “big babies” are convinced that vaccines are the monsters hiding under their beds…

What is interesting–if maddening–is that this irrational behavior is largely occurring on the political right (although left-wingers who see conspiracies where the rest of us see human complexity also subscribe.)  A recent article from The Week suggests a reason for those statistics showing that Republicans are dying at far greater rates than Democrats.

The article recounted several recent speeches by rightwing ideologues, and summarized the worldview common to them:

The right believes that the progressive left hates America; that it is an evil totalitarian cult which has infiltrated every institution; and that it is using a mix of business, bullying, and technological surveillance to deconstruct both masculinity and the United States as a whole in order to create a world without belonging.

In other words, the cult that has replaced the once-respectable GOP believes that “the progressive left” (i.e., everyone to the left of lunacy) is the monster under the bed. They actually believe that Democrats and moderate (i.e. sane) Republicans are capable of constructing and executing a co-ordinated, well-planned and utterly nefarious effort to destroy the America that exists in their fevered imaginations. 

Because???

The sheer number of people who have imbibed this Kool-Aid is scary enough, but the threat they pose to the rest of us is monstrous. As RFK Jr’s family has written, “his and others’ work against vaccines is having heartbreaking consequences.” We probably wouldn’t be facing the Omicron upsurge in Covid if vaccination rates had been higher, but the dangers posed by widespread acceptance of these conspiracy theories goes well beyond a deadly pandemic. We wouldn’t be teetering on the brink of something like Civil War if more people were intellectually or emotionally able to resist the lure of simple answers (It’s the bad guys! They’re the monster under the bed!) to complicated realities.

What was that famous quote by H.L. Mencken? “For every complex problem, there’s a solution that is simple, neat, and wrong.” 

Evidently, America is home to a depressingly large number of people willing to believe that all their problems can be solved just by destroying the imaginary monster under the bed…and if destroying the monster means eliminating democracy, well…so be it.

 

Speaking Of The World’s Worst Legislature…

Local Government, , ,

Every time I refer to Indiana’s General Assembly as “the World’s Worst Legislature” (note capital letters), readers remind me that there are other worthy contenders for that title–Texas and Florida among the standouts.

Granted, the competition is fierce, but Indiana’s lawmakers–not content to rest on their embarrassing laurels–have engaged the contest with what I can only describe as a bravura performance. As James Briggs of the Indianapolis Star explained:

While you were preparing for Thanksgiving, and maybe for a run in Broad Ripple, the Indiana General Assembly’s gobbledygook plot to set a new speed record for bad policymaking ended in a sloppy, embarrassing fiasco.

If you don’t know what I’m talking about, that’s understandable, because you were probably supposed to miss it. Legislative Republicans barely a week ago revealed that, as part of a rare one-day session intended to help Gov. Holcomb end the state’s public health emergency, they also were going to jam through severe constraints on businesses that require workers to either get vaccinated or find a new job.

As Briggs patiently explained, this effort was insane both substantively and procedurally. The bill that had been drafted would have required employers requiring vaccinations to adhere to onerous testing burdens. It would have required them to accept any and all “religious objections,” despite the inconvenient fact that no major religion has asserted that getting a COVID-19 vaccines violates its faith.

Perhaps most egregiously, the draft language gives credence to vaccine disinformation by carving out an exemption for pregnant women despite no evidence that vaccines pose a risk to them and much evidence that COVID-19 kills pregnant women at higher rates than women who are not pregnant.

And as Briggs also noted, as ridiculous as the draft language was, the process by which the Republican super-majority planned to ram it through was worse. They intended to pass the employer vaccine mandate ban on Monday, “the first business day after a major holiday weekend, while bypassing normal procedures to establish a consequential law faster than anyone could remember.” Even Kevin Brinegar, CEO of Indiana’s extremely conservative, Republican-loving Chamber of Commerce, testified that in his 42 years interacting with the  Indiana General Assembly, he’d never seen anything like what they were preparing to do.

“The chamber and, I believe, the entire employer community is opposed to this legislation,” Brinegar said.

Briggs described the seven-hour hearing as a disaster filled with vaccine lies and confusion, and he noted that the most effective–albeit unintentional– opponents of the bill were the anti-vaxxers in attendance who were urging lawmakers to pass it. Following the fiasco, the Speaker informed lawmakers that the one-day session was cancelled.

One item missing from Briggs’ report was how much that fiasco cost Indiana taxpayers. The last one-day session, held in 2018, cost 30,000.

The issue of employer vaccine mandates could return once the legislature begins its session in January, but the brake-slamming suggests that a critical mass of Republicans either were horrified by what they heard during the committee hearing or they were unwilling to consent to ramming through new rules for employers on an extraordinary timeline.

If you have been reading this and thinking “this is insane–why would the presumably “pro-business” party, a party that has been unwilling to regulate even the most socially harmful business practices, call an expensive special session and ignore their own rules of procedure in order to prevent businesses from safeguarding the health of their employees and customers? Especially as news of a new COVID variant is emerging?

If rational Hoosier voters need any more evidence that the state GOP has gone completely off the rails, this exercise should provide it.

A recent Doonesbury Sunday cartoon captures the moment, illustrating that Republicans are not only willing to infect their families and friends, they are willing to die  from an almost completely preventable disease–all in order to “own the libs.”

In the contest for “worst,” I submit that Indiana’s legislature has secured a place in the very top tier…..

Majority Rule

Constitution, Personal Autonomy, Public Policy and Governance, , ,

Majority rule in our democratic republic is more complicated than we like to think.

For one thing, our particular form of government carves out matters that are specifically insulated from what the Founders called the “passions of the majority”–the individual liberties enumerated and “reserved to the people” by various provisions of the Bill of Rights. For another, in those areas where majority opinion is supposed to count, our mechanism for determining what a majority of citizens really wants  is the vote–and not every citizen entitled to cast a vote does so. (The differences between what popular majorities want and what gets enacted can often be seen by comparing polling and survey research with legislation passed by victorious candidates.)

And don’t get me started on the Electoral College.

Then there’s the distortion regularly provided by media–very much including Twitter and Facebook, etc. We too often assume that the loudest and most persistent voices reflect the opinion of majorities–and that is not a well-founded assumption.

Take, for example, the issue of vaccine mandates.

A recent report by the Brookings Institution’s William Galston suggests that requiring vaccination is a lot more popular than we might imagine if we only listened to the hysterical purveyors of misinformation and conspiracy theories. (Recently, those vaccine deniers were accurately–if intemperately–labeled “assholes” by the Mayor of West Lafayette, Indiana. I don’t know him, but I’m pretty sure I’d really like him.)

Galston did a deep dive into the data. Not surprisingly, he found that unvaccinated Americans were less concerned about COVID than those who’d had the sense to get vaccinated.

In the face of massive evidence to the contrary, more than half of unvaccinated adults regard getting vaccinated as a bigger risk to their health than is getting infected with the coronavirus. Only one in five of the unvaccinated say that the spread of the delta variant has made them more likely to get vaccinated. These data do not support hopes that the recent outbreak will suffice to increase vaccination rates enough to bring the pandemic under control.

The data also reflects surprisingly robust support for vaccine mandates.

Since the beginning in March 2020, government’s response to the pandemic has occasioned intense controversy, much of it along partisan lines. Although the level of conflict remains high, recent events have solidified public support for the most intrusive policy government can undertake—mandatory vaccinations. According to a survey conducted by the Covid States Project, 64% of Americans now support mandatory vaccinations for everyone, and 70% support them as a requirement for boarding airplanes. More than 6 in 10 say that vaccinations should be required for K-12 students returning for in-school instruction as well as for college students attending classes at their institutions. And the most recent Economist/YouGov survey found that more than 60% support mandatory vaccinations for frontline workers—prison guards, police officers, teachers, medical providers, and the military—and for members of Congress as well…

“Solid majorities of every racial and ethnic group support vaccine mandates, as do Americans at all levels of age, income, and education.

The data also supports the growing recognition by sane Americans that the GOP has  devolved into a cult of anti-science, anti-evidence, crazy folks: Only 45% of Republicans support vaccine mandates, compared to 84% of Democrats.

When I sent my children to school, I was required–mandated– to provide evidence that they’d been vaccinated, and thus did not threaten the health and safety of the other children with whom they would be taught. When I was young myself, Americans lined up with gratitude to receive the polio vaccine that would allow them to avoid the alternatives–death, or imprisonment in iron lungs.

When providing for “the General Welfare” requires rules–mandates– a majority of us understand that such mandates not only do not infringe our liberties, but actually give us more liberty–allowing us to go about our daily lives without the danger of infection (or the need to wear a mask).

Vaccine mandates are supported by medical science, by law, by morality, and by a majority of Americans. We periodically need to remind ourselves that “loudest” doesn’t equate to “most”–and that a fair number of the hysterical people shouting about “personal freedom” can’t define it and don’t want their neighbors to have it.

 

 

Loyalty Signaling

Public Policy and Governance, , ,

I’ve posted before about “virtue signaling”-a way of publicly expressing a moral viewpoint with the intent of communicating one’s connection to people of similar, virtuous sentiments. (When I first purchased a Prius, a colleague asked if the purchase was prompted by a desire to “signal” my concerns for the environment to those who would be sympathetic. I guiltily wondered if he was on to something..)

However, I had never heard of “loyalty signaling” until I read a recent column by Paul Krugman.Krugman was  referencing scholarship on the development of cults, and he was particularly impressed by a paper by a New Zealand-based researcher, Xavier Márquez.

“The Mechanisms of Cult Production” compares the behavior of political elites across a wide range of dictatorial regimes, from Caligula’s Rome to the Kim family’s North Korea, and finds striking similarities. Despite vast differences in culture and material circumstances, elites in all such regimes engage in pretty much the same behavior, especially what the paper dubs “loyalty signaling” and “flattery inflation.”

Krugman defines signaling as a concept originally drawn from economics; it describes costly, often pointless behaviors engaged in by people trying  to demonstrate that they have attributes that others value.

In the context of dictatorial regimes, signaling typically involves making absurd claims on behalf of the Leader and his agenda, often including “nauseating displays of loyalty.” If the claims are obvious nonsense and destructive in their effects, if making those claims humiliates the person who makes them, these are features, not bugs. I mean, how does the Leader know if you’re truly loyal unless you’re willing to demonstrate your loyalty by inflicting harm both on others and on your own reputation?

And once this kind of signaling becomes the norm, those trying to prove their loyalty have to go to ever greater extremes to differentiate themselves from the pack. Hence “flattery inflation”: The Leader isn’t just brave and wise, he’s a perfect physical specimen, a brilliant health expert, a Nobel-level economic analyst, and more. The fact that he’s obviously none of these things only enhances the effectiveness of the flattery as a demonstration of loyalty.

Does all of this sound familiar? Of course it does, at least to anyone who has been tracking Fox News or the utterances of political figures like Lindsey Graham or Kevin McCarthy.

Krugman repeats his often-communicated belief that the G.O.P. is no longer a normal political party. (As he says, it sure doesn’t look anything like the party of Dwight Eisenhower). But as he and a number of other observers have pointed out, it does bear a distinct and growing resemblance to the ruling parties of autocratic regimes.

In the U.S., of course, the Trump Party doesn’t (yet) exercise complete control– so Republican politicians suspected of insufficient loyalty to Donald Trump aren’t sent to the gulag. “At most, they stand to lose intraparty offices and, possibly, future primaries.” Yet–as Krugman says, these threats are seemingly sufficient to turn them into modern-day versions of Caligula’s courtiers.

Unfortunately, all this loyalty signaling is putting the whole nation at risk. In fact, it will almost surely kill large numbers of Americans in the next few months….

Republican politicians and Republican-oriented influencers have driven much of the opposition to Covid-19 vaccines, in some cases engaging in what amounts to outright sabotage. And there is a stunning negative correlation between Trump’s share of a county’s vote in 2020 and its current vaccination rate.

Krugman says that hostility to vaccines has become a form of loyalty signaling–which, if accurate, answers a question about vaccine refusal that has confounded most sane Americans. As he says, the G.O.P. has become something having no precedent in American history (although there have been many precedents abroad.)

Republicans have created for themselves a political realm in which costly demonstrations of loyalty transcend considerations of good policy or even basic logic. And all of us may pay the price.

When cult members “drink the Kool Aid,” they typically only kill themselves. Unfortunately, the cult that has replaced the once-Grand-Old-Party threatens to kill us all.