Dershowitz to Ingraham: The unvaccinated have no right to get on an airplane and spread COVID to me

He’s right.

Not the part about COVID being worse than smallpox. That’s, ah, not correct — although Dershowitz is right to worry about the long-term consequences from infection. Anti-vaxxers will talk your ear off about how we don’t know what effect the vaccines might have on people’s bodies down the road, even though it’s unheard of for people to develop complications from vaccination more than two months out from their shots. What you don’t hear from them nearly as much is that we don’t know what problems people who’ve had COVID might struggle with down the road. Losing gray matter is no small thing.

But in terms of whether vaccine mandates will hold up in court? Dersh is almost certainly correct:

For one thing, the sort of mandate Biden just imposed on federal employees and contractors isn’t a strict order to get vaccinated. You can opt out of the shots and get tested regularly instead, a highly imperfect substitute but one that might lead some holdouts to get vaxxed simply in the name of avoiding the hassle. But even a strict vaccine mandate will probably hold up in court. The Jacobson decision that Ingraham mentions from 1905 is awfully broad in empowering states to order (smallpox) vaccinations:

Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that “persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State, of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made so far as natural persons are concerned.”…

Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It is to be observed that, when the regulation in question was adopted, smallpox, according to the recitals in the regulation adopted by the Board of Health, was prevalent to some extent in the city of Cambridge, and the disease was increasing. If such was the situation — and nothing is asserted or appears in the record to the contrary — if we are to attach any value whatever to the knowledge which, it is safe to affirm, is common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the Board of Health was not necessary in order to protect the public health and secure the public safety.

The Court made clear that the state’s vaccination power isn’t limitless. A mandate that was obviously arbitrary or placed people at some health risk might be blocked by a judge. But the courts will show heavy deference to elected officials in deciding when public safety does and doesn’t warrant mass vaccination. Today’s SCOTUS isn’t going to second-guess the White House, the CDC, or state and local leaders who conclude that a hyper-contagious variant of a disease that’s already killed 600,000 people requires a vaccination-or-testing order.

Ingraham counters Dershowitz by noting that his vaccine mandate for airplanes makes no sense since the CDC has now told us that vaccinated people can infect others too. He won’t be assured of a safe trip if he’s surrounded by passengers who’ve had their shots. Right — but he will be assured of a safer trip. Considerably safer:

The point of the new CDC data, as Ed explained earlier, isn’t that all vaccinated people are just as likely to spread the virus as the unvaccinated are. It’s that vaccinated people who actually get infected are as likely to spread it as the unvaccinated. (We think. There’s no smoking-gun proof, just measurements of relative viral loads.) Vaccinated people don’t get infected nearly as much as the unvaccinated do, in which case you’re less likely to come away infected after flying on a plane full of vaxxed passengers than a plane full of unvaxxed ones.

Others have also tried to clarify the takeaway from the CDC data this morning. People with symptomatic infections seem to be equally able to spread the virus whether they’re vaccinated or not. But the vaccinated and unvaccinated are by no means equally likely to have symptomatic infections.

A recent study from the UK showed that Pfizer is 88 percent effective at preventing symptomatic infection by Delta (although Israeli data hasn’t been nearly as encouraging). Also, per Science magazine, “Last week, separate groups at New York University and Yale University posted preprints analyzing blood serum from people vaccinated with the Pfizer and Moderna vaccines. Antibodies generated by those vaccines lost little of their potency against the Delta variant.” So many people have been vaccinated that even 88 percent effectiveness means thousands upon thousands will end up with breakthrough infections from a freakishly contagious strain. But in the aggregate, no, the vaccinated and unvaccinated aren’t equal threats.

I’ll leave you with this. Not only is the public on board with vaccine mandates — on planes and elsewhere — they’re getting more supportive over time, no doubt due to Delta anxiety.