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  • Writer's pictureDr. Tracy A. Pearson, J.D.

The Fifth Circuit Values Microscopic Cells

The Fifth Circuit Court of Appeals stayed the Biden Administration's OSHA requirement that employers with more than 100 employees require their employees be vaccinated or submit to weekly testing.

This decision is not based on established law. The U.S. Supreme Court decided the issue of whether vaccination could be mandated in 1905, in Jacobson v. Massachusetts.

In Jacobson, a local municipality required vaccination for small pox by enacting an ordinance. Ordinances are essentially orders issued by a local governing body. The order was challenged by a person who was charged with a criminal offense for refusing to be vaccinated in accordance with the ordinance.

The U.S. Supreme Court held that the government could require vaccination as it is a proper use of its police powers. Police powers are the powers government has to provide for and protect the safety and welfare of citizens. Because the ordinance was based on recommendations by local public health boards the requirement wasn't arbitrary or capricious.

Where I am left scratching my head is that the Fifth Circuit declined to enjoin Texas from enacting a law that in effect terminated the constitutional right to seek an abortion, affirmed over decades, but they do choose to intervene to enjoin a rule that to protect human beings who are living, breathing, people with families and whose good health makes our economy operate. In enjoining this order, the Fifth Circuit is protecting the virus. Maybe the Fifth Circuit doesn't align itself with life as much as it aligns itself with microscopic cells?

For almost two decades I worked in the court system as a trial and appellate lawyer and my experience was that cases were decided on facts and law. In particular, decisions were grounded in stare decisis. Stare decisis is Latin for "to stand by things decided." In practical terms, like cases are decided similarly. With a U.S. Supreme Court decision directly on point affirming that the government can require vaccines, the patina of the U.S. Court System having integrity and being a (mostly) non-political branch is disappearing.

These folks will "protect" zygotes contrary to U.S. Supreme Court precedent, but they won't allow the government to protect human beings from a deadly virus that has claimed 249 million lives world wide and counting and 4.96 million lives in the United States (and counting).

Winter is coming. Prepare for more death, hospitals being overwhelmed, and for those of us who did the responsible thing, potentially another lock down. I miss my old life; do you? I am tired of restricting my life to protect my heath because there are people who refuse to take steps to do the responsible thing, enabled by politicians who file lawsuits like these.

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