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Alabama will sue to block vaccine mandates, Marshall says

“The state of Alabama will not allow such an authoritarian power grab to go unchecked,” Attorney General Steve Marshall said.

Alabama Attorney General Steve Marshall speaks during a press conference on COVID-19 with Gov. Kay Ivey in April 2020. GOVERNOR's OFFICE/HAL YEAGER

On Thursday, President Joe Biden announced federal mandates that would require doctors, nurses, medical workers, federal employees, the employees of federal contractors, and anyone employed by an employer with over 100 employees to get the COVID-19 vaccine, submit to regular testing, or they and their employers could face federal penalties. On Monday, Alabama Attorney General Steve Marshall announced that the state of Alabama will sue to block the implementation of Biden’s vaccine mandates.

“I have received a number of inquiries regarding President Biden’s vaccine-mandate announcement last week, wishing to know my thoughts and my planned actions against it,” Marshall said in a statement. “The vaccine mandate is unprecedented in its audacity and unlawful in its application. The Biden administration knows this full well.”

“The state of Alabama will not allow such an authoritarian power grab to go unchecked.  When they file their new rule; we file our lawsuit,” Marshall said.

Thousands of Ascension Health/St. Vincent’s and UAB employees were already facing termination if they fail to comply with their own leadership’s mandate. Thursday’s presidential executive order only adds those prior corporate orders and extends that to all medical providers that accept Medicare and Medicaid dollars.

The Montgomery-based Foundation for Moral Law announced that in their view compulsory vaccination violates the constitutional rights of those who oppose vaccination, whether for religious, medical, or other reasons. 

The Foundation has released a position paper explaining their claim that the protections afforded by the First Amendment, the Civil Rights Act of 1964, and other provisions of law gives practical advice for the exercise of those protections.

Former Chief Justice Roy Moore, the founder and President Emeritus of the Foundation, asserted that “The liberal establishment and the mainstream media are placing immense pressure on people to get the vaccination. People who object to vaccination need to know that they are not alone, that there are laws that protect them, and that organizations like the Foundation for Moral Law are willing to help them.”

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Foundation Senior Counsel John Eidsmoe added, “Today, a year and a half into the pandemic, people are flooded with more conflicting information than ever about the nature of COVID, the effectiveness of various means of treatment and prevention, and the safety and effectiveness of the vaccine.  Each of us should be free to decide whom to believe and what remedies to follow, including whether to get the vaccine.  Our position paper is intended to help people make an informed decision.”

The Biden administration meanwhile is pointing to a Supreme Court decision in 1905 that upheld a vaccination mandate by the State of Massachusetts. In that landmark decision, the Supreme Court ruled in Jacobsen versus Massachusetts 7 to 2 that a state had the authority to enforce the laws requiring mandatory vaccinations for smallpox. In 1922 the Supreme Court ruled in Zucht versus King that the San Antonio school district could exclude students who hadn’t received required vaccinations.

In Jacobson v. Mass, Associate Justice John Marshall Harlan wrote, “The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.”

“But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good,” Justice Harlan stated. “On any other basis organized society could not exist with safety to its members. 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 issue appears to be headed to the current Supreme Court. Another issue, not raised in Jacobson, is if the office of the President can bypass Congress and impose vaccine mandates absent of any legislation empowering him with virtually unlimited decree making authority.

Brandon Moseley is a former reporter at the Alabama Political Reporter.

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