California Capitol Watch: COVID-19 Vaccine Passports—Legitimate to Protect the General Health and Welfare or Unconstitutional Infringement on Civil Liberties?

By Eric Gelber

On April 14th, Assembly Member Kevin Kiley repurposed one of his pending bills on an unrelated subject (AB 327) to now prohibit state and local governments, and certain private entities from requiring proof of COVID-19 vaccination—so-called vaccine passports or digital health passes—from customers or recipients of services.

What problem/issue would the bill address?

Vaccine passports are typically digital records—using a QR code or smartphone apps (or a written certificate for those who do not have smartphones)—used to show that a person has been vaccinated. According to the author, these records have raised concerns over privacy and civil liberties violations.

What would the bill do?

AB 327 would prohibit state agencies, local governments, and any other government authority from adopting or enforcing any order, ordinance, policy, regulation, or rule that requires an individual to provide as a condition of receiving any services or entering any place, documentation regarding the individual’s vaccination status for COVID-19 vaccine administered under an emergency use authorization. Presumably, the bill’s prohibition on COVID-19 vaccination documentation would not apply once a vaccine is approved through the traditional FDA approval process.

The bill would also impose a similar ban on any public or private entity that receives state funds through any means, including through grants, contracts, or loans.

Comments

Apart from the scope and application of AB 327 itself, the bill raises the broader issue of the pros and cons of vaccine passport requirements.

At this point, neither the federal government nor California has plans to create vaccine passports or other credentials. Private businesses, such as airlines, however, could require verification of vaccination at some point in the near future.

Dr. Mark Ghaly, Secretary of the California Health and Human Services Agency, recently said that the state has no plans to develop its own vaccine passport but will be monitoring private sector development of passports for privacy, equity, and fairness. Ghaly has also reportedly said that the state is working through whether it makes sense in the highest-risk venues—large indoor, random-mixing environments—where there could be an expectation to have vaccine or testing verification.

Supporters of vaccine passports argue that they would help in reopening the economy and would not be needed once enough people are immunized to reach herd immunity. Senator Richard Pan, chair of the Senate Health Committee, where AB 327 will be heard, has argued that the bill would harm businesses trying to safely get customers back in their doors. Pan said, “You don’t want an outbreak that’s traced back to your venue. What we’re basically telling businesses is ‘Sorry, we’re denying you a piece of information that could allow you to reopen safely.’ Why would we want to stand in their way?”

Some opponents of implementing a system of vaccine passports have claimed that they violate constitutional rights and infringe on civil liberties. AB 327’s legislative declaration that “The United States Constitution does not authorize the federal government to mandate vaccine passports for COVID-19,” however, is dubious.

As long ago as 1905, the U.S. Supreme Court, in Jacobson v. Massachusetts, held that it is within the police power of a state to provide for compulsory vaccination to protect the common good. The Court ruled that the City of Cambridge did not violate the Constitution by requiring all adults to get a smallpox vaccine. Citing Jacobson, the Supreme Court, in Zucht v. King (in 1922), found that a school district could constitutionally exclude unvaccinated students from attending school.

That’s not to say current federal courts wouldn’t come to a different conclusion. The standards applied to alleged violations of personal liberty have evolved since 1922. Courts today would have to determine whether vaccine passports implicate a fundamental right to make healthcare decisions for one’s own body. Then the court would have to determine whether the state has a compelling interest in protecting public health against COVID-19 and economic recovery. They would then have to determine whether vaccine passports are the least restrictive means to protect the community.

Concerns with COVID-19 passports have been expressed by both conservatives and progressives. Conservatives argue that passports coerce people into accepting a vaccine in exchange for recovering basic liberties, or to justify prolonging restrictions. Progressives focus on inequities—the fact that not everyone has equal access to the vaccine.

The ACLU, for example, has expressed concerns with a digital system. They would oppose a digital system unless, among other things, it is not exclusively digital because it would increase inequality and disadvantage people who are low-income, have disabilities, or are homeless, as well as a large percentage of people over 65.

State requirements would have to include safeguards to protect civil liberties—having exemptions for medical reasons, or accommodations for employees with disabilities who telecommute, for example. Requirements would also have to be crafted to ensure that they do not apply when exercising civic rights, such as voting. The current Supreme Court would likely be sympathetic to arguments objecting to vaccine passports on religious freedom grounds.

Because it would impose a total ban on vaccine passports for designated public and private entities, AB 327 likely has little chance of passing in California’s Democratic-controlled legislature. The bill is currently in the Assembly Health Committee, but no hearing date has yet been set.

Eric Gelber, now retired, is a 1980 graduate of UC Davis School of Law (King Hall). He has nearly four decades of experience monitoring, analyzing, and crafting legislation through positions as a disability rights attorney, Chief Consultant with the Assembly Human Services Committee, and Legislative Director of the California Department of Developmental Services.


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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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5 Comments

  1. Chris Griffith

    It’s not all that bad to require some kind of identification for this covid shot but at least put lipstick on this pig and maybe even put her dress on it before you shoot it out there.

    Maybe in some way connect it to the driver’s license maybe require it in order to give blood or maybe if you turn in a roadkill on a highway and they can utilize some of your organs the other person/persons knows the donor is covid-free I think the state needs to use it brain a little bit.

     

     

    1. Bill Marshall

      Wow…

      No serious efforts on any level to require/authorize “vaccination passports”… just “talk-talk”…

      Yet, a young Republican, positioning himself as a “Conservative”, has proposed legislation to ban something that has not even emerged as a serious proposal?

      Maybe he’s looking for a “two-fer”, to protect his seat in the Assembly, come November…

      Appeal to ‘conservative Republicans’, particularly those who are wary of Gov’t regs, many of whom are anti-vaxxers, and some even denying that Covid 19 is real and might be a ‘clear and present danger’… AND “liberals” (be they Libertarian or Democrat, or other) who in many cases are anti-vaxxers, and don’t want Government tracking/’profiling’ folk… genius… ‘good’ politician (watching out for himself!)…

      But as to Chris G, this is too ‘ripe’…

      Maybe in some way connect it to the driver’s license maybe require it in order to give blood or maybe if you turn in a roadkill on a highway and they can utilize some of your organs the other person/persons knows the donor is covid-free I think the state needs to use it brain a little bit.

      Tying to driver’s license… offends both conservative and liberal values, and is “stupid” because we do not yet know that vaccinations = permanent immunity, nor whether even whether it can even be sub-clinical and passed on… we know that Covid affects the lungs… no clue as to whether it could be passed via heart, kidney, liver, corneal transplants… from what we know, it is doubtful

      Those in need of blood, organs, questioning whether a person is Covid-free?  Let them “pass” figuratively and literally… might as well add CF genes, cured STD’s histories, “different race” criteria…

      I think a number of folk need to use their brain a little bit… unless it was meant as satire… if so, I was truly ‘faked out’, and missed that…

       

       

       

       

  2. Edgar Wai

    A health condition that makes it dangerous for a person to get vaccine does not translate an exception allowing that person to enter places that normally require vaccination.

    The related term is accommodation, meaning if a person cannot be vaccinated, then the system shall have another way to meet their needs.

    If one store out of ten requires a passport, the system could argue that accomodation already exist.

    If nine out of ten stores require a passport but 30% of the population is anti vaccine, then the system has a duty to help that single store of serve the 30% of the population.

    If the serve in question is a government service, the point of service should split up of make other accommodations.

    The system that does so adapts to the population instead of ruling over the population with authority or majority rule. It is more free among democratic systems.

    1. Bill Marshall

      allowing that person to enter places that normally require vaccination.

      Except for schools, that CAN ask for vaccination records, or front-line health-care workers, who can be “normally” required to either be vaccinated, show cause why not, or be limited as to ‘duties’… name three places that normally” require vaccination” — particularly re:  Covid… take your time… it will be a difficult search…

      I say this as someone who has had both Covid shots, had all my vaccines as a kid (including smallpox and the sugar cube polio regimen), and the optional/suggested ones as an adult… so, am NOT an ‘anti-vaxxer’, nor do I support “compulsion” (true medical considerations are valid)… but those who refuse should accept “consequences” for their choice… limitations on contact with others, etc.

      The Assemblyperson pushing this… what is his motivation?  Certainly not to reverse a decision to require V-P’s…

      At best, a “pre-emptive”, politically motivated show of  ‘bravado’…

      1. Edgar Wai

        I don’t know exactly what places normally require vaccine.

        I imagine that a hospital should be allowed to require its employee to be vaccinated. In that case, a freedom oriented society should not stop them from doing so.

        The same society should also not stop another hospital from not requiring any vaccination for it’s employees.

        However, if the people complain that there aren’t enough hospitals with no vaccine restrictions, the society should help them.

        Invalid complaint: There aren’t enough vaccinated people to visit my store.

        Valid complaint: There aren’t enough stores that do not require vaccination. (#2)

        Usually there is no need for intervention to fix #2. It can be fixed by free market.  However #2 can happen if there is an existing monoploy in that sector.

        Then a solution to that is not necessarily ban vaccine passports, but to break up that monopoly or ensure that those monopolies have alternate serve method for people without vaccination.

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