You can rarely be sure that judicial incompetence will kill people, but Federal District Judge Terry Doughty crossed that line when he issued a injunction blocking the Biden administration requirement that nursing home staff be vaccinated against COVID-19. (The injunction, the administration of which is attractive, has since been amended by a higher court to apply only in the 14 states that have sued.) This week, the Supreme Court judge Neil gorsuchNeil Gorsuch New York targets gun control – and misses, yet Supreme Court procedural decision could prolong fight against abortion ban in Texas Warren supports Supreme Court expansion MORE produces something worse than incompetence.
A recent study in the New England Journal of Medicine show that nursing home patients are much more likely to die from COVID if there are a lot of unvaccinated staff. Among residents of facilities with low immunization rates, death rates were nearly three times higher than those in facilities with the highest levels of staff immunization. The study concludes that, during the two-month period studied, âif all the nursing homes in our sample had been in the highest quartile of staff immunization coverage (82.7% on average), 4,775 cases among the residents (29% of the total during the study window), 7,501 cases among staff (29% of the total) and 703 deaths related to Covid-19 among the residents (48% of the total) could have been avoided.
The New York Times reports that some nursing homes were making slow progress in getting their staff vaccinated, pending the federal mandate (perhaps because they could then tell staff not to blame management for the requirement).
Trump-appointed Judge Doughty relied heavily on the written statement from dr. Peter McCullough, was fired of Baylor University Medical Center for spreading misinformation about COVID. Baylor has since obtained a temporary restraining order against McCullough, citing “The likelihood of irreparable damage to business and reputation” if he continued to lie that he was still affiliated with the hospital. He promoted the demystified, dangerous hydroxychloroquine, an antimalarial medicine, as a treatment for the disease. McCullough has falsely claimed that 50,000 people have died from the vaccine. There is a section of his Wikipedia page titled âCOVID-19 Disinformationâ. He is, in short, a crank. I was able to learn all of this in a two minute Google search.
Doughty uncritically quotes many of McCullough’s false claims: that âCOVID-19 vaccines do not prevent disease transmission among vaccinated or mixed vaccinated / unvaccinated populations; that mandatory COVID-19 vaccines for hospitals do not increase the safety of employees or inpatients â; “that due to the progressive mutation of the spike protein, the virus managed to escape the COVID-19 vaccines”; and that “the Delta variant is not sufficiently covered by vaccines”. There is so much wrong here it’s hard to know where to start.
Next, Justice Doughty offered his own medical expertise: “If boosters are needed six months after being ‘fully vaccinated’, then what is the quality of the COVID-19 vaccines and why is it necessary to mandate them? ” It’s a surprisingly common misconception, based on a misunderstanding of base probability.
It is true that, as Doughty puts it, âeven if you are fully vaccinated, you can still be infected with the COVID-19 virusâ. Vaccines are not 100% effective. But the disease killed 1 in 100 elderly Americans. The danger is statistical and unvaccinated people are 20 times more likely to die from COVID.
Late in Doughty’s opinion, we find out that all the scientific poppy is a rationalization of what really bothers him: “maintaining the freedom of individuals who do not want to take the COVID-19 vaccine.” It is a strange conception of freedom which implies the right to kill people. If this is true then we owe the drunk drivers an apology for breaking their freedom. But it’s not clear Doughty believes it. âRequiring COVID-19 vaccinations on warrant-covered healthcare workers,â he wrote, âwould hurt Social Security law patients. [the source of the federal funding] was supposed to help. He believes vaccines don’t work and that he is promoting health by preventing the loss of workers and funding (an issue the Biden administration would address by imposing the mandate in stages).
The idea that freedom means a right to hurt people has, however, been adopted outright by some members of the Supreme Court.
I have written about Judge Neil Gorsuch’s incredible support for vaccine resistance. In a dissenting opinion in October, he claimed that while medical immunization exemptions are allowed for healthcare workers, religious exemptions should also be allowed. He was remarkably oblivious to the distinctions between medical and religious exemptions: medical exemptions are rare and have never been the source of an epidemic, while religious objections proliferate, are impossible to refute, and may defeat efforts to to contain this scourge.
This week in another dissent (joined by Justice Samuel alitoSamuel AlitoOvernight Health Care – Brought to you by Rare Access Action Project – United States surpasses 50 million COVID-19 cases Supreme Court refuses to block New York health workers’ vaccination mandate Conservative justices appear open to a religious claim in the Maine PLUS school case) Gorsuch explained himself. He writes:
âIf the estimated number of those who could claim different exemptions is relevant. . . a state might argue, for example, that it has a compelling interest in obtaining collective immunity against certain diseases in a population. He might further argue that the most narrowly suited way to achieve this interest is to restrict vaccine exemptions to a particular number divided in a non-discriminatory manner between medical and religious objectors. With sufficient evidence to back up such claims, the state could prevail. “
In other words, if some people were harmed by the vaccines – if they were among the few that no ethical doctor would vaccinate – Gorsuch believes the right solution is to impose vaccines on them in order to make room for religious objections. . . Of course, that wouldn’t even address one of the state’s main concerns that vaccine-resistant people tend to be clustered geographically, spreading disease among themselves and thus presenting much greater risks than those with medical excuses. And note that both cases involved healthcare workers. The dangers Gorsuch is willing to tolerate in the name of religion are not just for them, but for their patients.
Doughty is gullible; Gorsuch is worse. Fully aware of what he is doing, he is ready to physically hurt people in order to promote the religious freedom of others.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of âBurning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greedâ (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.