Give me liberty and give you death

You can rarely be sure that judicial incompetence will kill people, but Federal District Judge Terry Doughty crossed that line when he issued an injunction blocking the Biden administration’s requirement that nursing home personnel be vaccinated for COVID-19.  (The injunction, which the administration is appealing, has since been modified by a higher court to apply only in the 14 states that sued.) This week, Supreme Court Justice Neil GorsuchNeil GorsuchManchin open to supporting Supreme Court pick more liberal than him Breyer retirement throws curveball into midterms Senate set for muted battle over Breyer successor MORE produced something worse than incompetence. 

A recent study in the New England Journal of Medicine showed that nursing home patients are far more likely to die of COVID if there are many unvaccinated staff.  Among residents in low-vaccination facilities, death rates were nearly three times those of facilities with the highest levels of staff vaccination. The study concluded that, during the two-month period studied, “if all the nursing homes in our sample had been in the highest quartile of staff vaccination coverage (82.7% on average), 4775 cases among residents (29% of the total during the study window), 7501 cases among staff (29% of the total), and 703 Covid-19–related deaths among residents (48% of the total) could possibly have been prevented.” 

The New York Times reports that some nursing homes were moving slowly on getting their staff vaccinated, waiting for the federal mandate (perhaps because they could then tell staff not to blame management for the requirement).

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Judge Doughty, a Trump appointee, relied heavily on the written declaration of Dr. Peter McCullough, who was fired from the Baylor University Medical Center for spreading misinformation about COVID. Baylor has since obtained a temporary restraining order against McCullough, citing “the likelihood of irreparable business and reputational harm” if he kept lying that he was still affiliated with the hospital. He has promoted the debunked, dangerous malarial drug hydroxychloroquine 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 entitled “COVID-19 misinformation.” He is, in short, a crank. I was able to learn all this in a two-minute Google search. 

Doughty uncritically cites numerous false claims by McCullough: that “the COVID-19 vaccines do not prevent transmission of the disease among the vaccinated or mixed vaccinated/unvaccinated populations; that mandatory COVID-19 vaccines for hospitals do not increase safety for employees or hospital patients”; “that because of the progressive mutation of the spike protein, the virus has achieved an immune escape from COVID-19 vaccines”; and that “the Delta variant is not adequately covered by the vaccines.” There is so much wrong here that it is hard to know where to begin.

Then Judge Doughty offered his own medical expertise: “If boosters are needed six months after being ‘fully vaccinated,’ then how good are the COVID-19 vaccines, and why is it necessary to mandate them?” This is a surprisingly common misconception, based on a misunderstanding of basic probability.

It is true that, as Doughty says, “even if you are fully vaccinated, you still may become infected with the COVID-19 virus.” The vaccines are not 100 percent effective. But the disease has killed 1 of every 100 older Americans. Danger is statistical, and unvaccinated people are 20 times more likely to die of COVID.

Late in Doughty’s opinion, we find out that all the scientific poppycock is a rationalization for what really bothers him: “maintaining the liberty of individuals who do not want to take the COVID-19 vaccine.” It is an odd conception of liberty that entails the right to kill people. If that is right, then we owe drunk drivers an apology for infringing on their liberty. But it’s not clear that Doughty believes that. “Requiring COVID-19 vaccinations to healthcare workers covered by the mandate,” he wrote, “would hurt the patients the Social Security Act [the source of the federal funding] was meant to help.” He thinks vaccines don’t work, and that he is promoting health by preventing the loss of workers and funding (a problem the Biden administration was going to address by imposing the mandate in stages). 

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The idea that liberty means a right to hurt people has, however, been squarely embraced by some members of the Supreme Court.

I’ve written about Justice Neil Gorsuch’s astounding support of vaccine resistance. In a dissenting opinion in October, he claimed that if medical exemptions from vaccination are permitted to health care workers, religious exemptions must also be allowed. He was remarkably oblivious to the distinctions between medical and religious exemptions: Medical exemptions are rare and have never been the cause of an outbreak, while religious objections are proliferating, are impossible to disprove and can defeat efforts to contain this plague.

This week, in another dissent (joined by Justice Samuel AlitoSamuel AlitoWill the justices end race-based affirmative action?  Supreme Court just added affirmative action to its list of conservative unfinished business It's up to America's state courts to rescue democracy MORE) Gorsuch explained himself.  He writes: 

“If the estimated number of those who might seek differ­ent exemptions is relevant . . . a State might argue, for example, that it has a com­pelling interest in achieving herd immunity against certain diseases in a population. It might further contend the most narrowly tailored means to achieve that interest is to re­strict vaccine exemptions to a particular number divided in a nondiscriminatory manner between medical and religious objectors. With sufficient evidence to support claims like these, the State might prevail.”

In other words, if some people would be harmed by vaccines – if they are among the tiny number whom no ethical doctor would vaccinate – Gorsuch thinks that the fair solution is to force vaccines on them in order to make room for the objections of the religious. Of course this would not even address one of the state’s principal worries, which is that vaccine resistors tend to be geographically clustered, to spread the disease among themselves and so to present far greater risks than those with medical excuses. And notice that both cases involved health care workers. The dangers that Gorsuch is willing to tolerate for the sake of religion are not only to them but to their patients. 

Doughty is gullible; Gorsuch is worse. Fully aware of what he is doing, he is prepared to physically hurt people in order to promote other people’s religious liberty.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.