PUBLIC HEALTH POLICING AND THE CASE AGAINST VACCINE MANDATES.

• Author: Woods, Tryon P.
• Position: St. Thomas Law Review Symposium on Race and Policing in America

1. INTRODUCTION: PANDEMIC POLICE POWER 220 II. POLICINGISNOTWHATWETHINKITIS 223 III. ISTHEREAPANDEMIC? 225 IV. WHYORWHYNOTVACCINES? 236 V. LAW-MATTERS? 257 VI. CONCLUSION:SCIENCE AND LAW FOR THE PEOPLE 275 There can be no simple reading of a text, be it literary, philosophical or scientific, nor of the social text in the most general sense. Rather, the question must turn upon itself, no less than its putative object, as a matter of interpretation and, more important, as a matter of the forces at work in the interpretative activity under way. There is always the ascription of voice to what is otherwise silent, the attribution of a face or the placement of a mask. (1) Le germe n'est rien, c'est le terrain qui est tout. The microbe is nothing, the soil is everything. (2) I. INTRODUCTION: PANDEMIC POLICE POWER

   In the twentieth year of the twenty-first century, the Pandemic Year, not even the virus could displace policing from its usual share of the news headlines. The current global economic and public health crises are unprecedented in modern human history. The antiblack violence of state and civil society is not; it is typical, banal, and contiguous with times gone before and times yet to come. These two facts--what is alarmingly new and grotesquely familiar--are of the utmost analytical and political importance. We need to think them together to understand policing. The unprecedented and the precedential, which is also the precedent for all else--two data sets, if you will, from which we can scientifically discern a larger pattern, a historical process in which we remain mired.

   In this article I argue for understanding the Pandemic Year in terms of public health policing. As I write, the world is being told that vaccination is the answer to our problems of the past year. The decision to vaccinate should be a personal one, like all other decisions about how to take care of one's health. Vaccines do indeed impact public health, not just individual health, but not in the manner in which we typically assume they do. We are told that vaccines are vital to protect ourselves and our neighbors from disease. I present evidence, and an argument for interpreting this evidence, that shows vaccines in general, and the currently proposed vaccines for COVID-19 specifically, do not strengthen collective health, but rather are part of the larger structure by which the vast inequalities of this society are reproduced. The biological products currently marketed as COVID-19 vaccines are a particularly egregious illustration of how this structure stands in the way of the kind of communal empowerment that can support holistic health and healing for everyone, not simply those with access to institutional power.

   The COVID-19 injections cannot be mandated under currently existing law. They have not been approved as safe and effective by the Food and Drug Administration (FDA); they are on the market under emergency use authorization. Federal law is very clear that people must be free to give or withhold their consent with EUA products. I present a case for the further interpretation of vaccine mandates as unconstitutional, because there are numerous effective and widely available alternatives to vaccination that are less invasive and costly to society and to the individual. This argument rests on a legal interpretation of vaccine case law going back to the leading precedent, Jacobsen v. Massachusetts; and it also relies upon extensive reading of the scientific literature regarding COVID-19 and immunology.

   Matters of public health policing and vaccine mandates must be considered within the real-world context in which they occur. These are not academic or theoretical questions. Since policing is fundamentally about the reproduction of power, we are talking about how non-white bodies are construed as less worthy compared with white ones, with black people the most devalued in society. The Pandemic Year has inspired many observations about black sacrifice and racial inequities in health. A recent piece from Essence magazine, for instance, claims that so-called essential workers--disproportionately black and female--are inadequately protected from virus transmission and sacrificed to the public health crisis so that the economic crisis can be averted. (3) The Essence piece cites the history of J. Marion Sims, recognized by Western medicine as the Father of Gynecology, who conducted experiments on enslaved women without anesthesia, claiming that black people do not experience pain the way whites do. These enslaved women were tortured to enable advances in modern medicine. (4) Evoking this history to call for better protection from transmission of the COVID-19 virus today, however, is a treacherous formulation of the problem at hand because it trades on a historical truth (antiblack violence) to obscure a contemporary set of half-truths and untruths related to the pandemic. The history of slavery does indeed continue to structure our present: black people continue to experience medical discrimination and malpractice, as well as disproportionate illness, chronic disease, and premature death related to a range of social factors. (5) Citing this reality, however, only contributes to the mystification that the pandemic relies upon for its coherence. To put it differently, the police power makes good use of black history when it serves its policing aims. This is part of the price we continue to pay in the post-civil rights era for the suppression of black self-determination. (6)

   The argument I pursue in this essay is that power is most effective where it is least visible. This goes for policing. Policing is a spectacle of state power that is as bad as it advertises on itself, as the latest incidents of police killing unarmed black people illustrate. With the conviction of Derek Chauvin for the murder of George Floyd, and the prosecution of the three other officers for aiding and abetting Chauvin, the state attempted to construct the situation of Floyd's death as exceptional. This is incorrect, of course, for what the officers did was routine, even if the staging of their particular methods were uncommon. We have been here before with the police, and unfortunately, we will be here again very shortly. The reason why this state violence continues unabated is because there is a police power more fundamental to how society is organized than law enforcement. Despite what the police constantly tell us, they are not the frontline; they are merely the backups. Their job is to back up the police power organized to comprehensively reproduce an antiblack society in all arenas. This is why the police are not accountable to law: the police power precedes law, and the spectacles of policing like Chauvin and his colleagues, as outrageously lethal and catastrophic as they are for the black community, are meant to draw the public's attention away from how the police power works in other areas to achieve social control.

   In order to understand what policing is, therefore, we need to learn how to read it where it is least legible, because policing, like all forms of power, is most effective precisely where and when it goes unnoticed as policing. I use the Pandemic Year to demonstrate this claim because it concentrates the many diffused forms of social policing like never before. In the following section, I summarize the reconceptualization of policing that undergirds my analysis of the Pandemic Year. I then spend the remainder of the article examining the pandemic police power to assess one of the key areas of society where policing is effective precisely because it does not appear to be policing.

   The efficacy of any medical case is no different from a legal one in that it rests on an accurate establishment of the facts from which the case issues. What will emerge in due course, then, is a portrait of policing by medical science and public health institutions in the service of an expanded social control apparatus at the expense of the public's further diminished capacity for dissent and self-determination. That is, the Pandemic Year represents a severe cost to public health in almost every way besides viral infection. I conclude with an assessment of what medical science policing means for law and for popular empowerment. While there are serious legal implications to the Pandemic Year--including civil liberties, tort damages, fraud, white-collar and state crime, international treaty conventions, and class action lawsuits--law remains constitutive and subordinate to all policing, not external or supraordinate to it. Law's relation to policing in all its myriad forms, in other words, is structural, not instrumental. That said, I focus here on the pandemic police power precisely to illuminate a pressing area of attention for lawyersand legal scholars. Vaccine mandates are already in effect for COVID-19 for college students and many workers. I argue that these mandates are unconstitutional, and I endeavor to provide lawyers with the scientific and legal basis for supporting parents and workers in challenging this barrier to health, school-based learning, and a non-discriminatory learning environment and workplace.

   All told, this analysis of policing extricates our thinking from the either/or strictures of popular dichotomies typical of the sectarianism characterizing American public life today: Trump is bad, Fauci is good; politicians are bad, doctors and scientists are good; capitalists are bad, philanthropists are good; anti-vaxxers and re-openers are bad, mask wearing, and social distancing is good; kids are bad, technology is good; science is truth, science is political; and so on. These binaries are, in fact, state narratives which function as dead-ends for thought: state power promotes anti-intellectualism, the sequestration of critical thought, and the quarantine of independent research and analysis. Legal scholars and practitioners are no different...