…what about this very obvious distinction isn’t clear in a 14th amendment context? I’m not trying to be a jerk, I am going through everything I remember about 14th amendment jurisprudence and trying to figure out what you’re referencing.
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Replying to @JillFilipovic @badler
Not at all, and I'm going to go reread Roe now. I recall it finding a right of privacy, though not an unconstrained one, given it's finding of a state interest in protecting prenatal life. The question would be how privacy vs protection of life would be balanced wrt a vaccine, &
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It's not really a question in the current jurisprudence, because Roe v. Wade literally used vaccination as an example of where the right to privacy ended. SCOTUS could revisit this question, but it's not "open" at the moment. Here is the relevant section for reference:pic.twitter.com/TrEqtbUaYk
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Replying to @cmuratori @conor64 and
I don't think that's right. It's confusingly worded, but I think paragraph 8 of Jacobson says that courts may weigh the merits of compulsory public health measures (including forced vax) per epidemic or even per person and block sufficiently unreasonable requirements.pic.twitter.com/saOqjMIUq8
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Replying to @XplodingCabbage @conor64 and
But that is always the case, on any settled question. SCOTUS doesn't really hand down "100% of all vaccine mandates are legal" decisions. The ruling is that vaccines do not _in and of themselves_ violate the right to privacy.
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Replying to @cmuratori @conor64 and
Sure, but that seems more consistent with Conor's framing that "the question would be how privacy vs protection of life would be balanced wrt a vaccine" than with saying the right to privacy ends with vaccination and it's not an open question.
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Replying to @XplodingCabbage @conor64 and
I guess I would just say, I doubt it? Or rather, that framing suggests that the state would be going to court with a toss-up question. But I don't think it would. I think it would be going to court with a slam dunk. "It's a pandemic, everyone agrees, we vaccinated for it." Done.
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Replying to @cmuratori @XplodingCabbage and
Another way to put it would be, if the state mandated a vaccine for the common cold, I could understand the framing. Because then there is an open question of how the state goes to court and argues for Jacobson protection.
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Replying to @cmuratori @conor64 and
I expect there will in fact be toss-up questions, especially given that Jacobson explicitly contemplates that the courts might intervene because the application of the rules *to particular persons* is unreasonable.
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Replying to @XplodingCabbage @cmuratori and
e.g. I expect many schemes created by federal employers to comply with the EO will require FDA-approved vaccines. If a worker who's had another vaccine while abroad sues arguing requiring an FDA-approved vax is unreasonable in their circumstances, I don't expect a slam-dunk.
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As I said in the original two-tweet, _that_ is not a settled question. Jacobson is state action. So Federal employers are a completely different topic.
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Replying to @cmuratori @conor64 and
Mark Amery Retweeted Casey Muratori
Ah, interesting. So you did. https://twitter.com/cmuratori/status/1436249554156806144 …. That's a nuance that went over my head!
Mark Amery added,
Casey Muratori @cmuratoriReplying to @cmuratori @conor64 and 2 othersWhat _is_ an open question, as far as I know, is whether the _Federal_ government has the power to enact vaccination requirements. I have not studied that issue, but the case cited in Roe (Jacobson) was about State action, not Federal, and states (alone) have police power.0 replies 0 retweets 0 likesThanks. Twitter will use this to make your timeline better. UndoUndo
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Replying to @cmuratori @XplodingCabbage and
(But separately, again, the hypothetical you're contemplating is an as-applied challenge, so it has nothing to do with it being an "open question" of the validity of the law on its face.)
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