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Liberty for Whom?

In the intra-GOP fight over whether to ban private vaccine mandates in South Dakota, both sides claim to be championing freedom.

A debate over “vaccine mandate bans”—whether a government can or should ban people in its jurisdiction from requiring proof of vaccination in private interactions with one another—looks at first glance like such a tertiary COVID-related issue as to be hardly worth bothering about. At the moment, however, it’s a debate causing an internal rift among South Dakota Republicans—one that’s an interesting illustration of the ideological civil war currently roiling the GOP at large.

The debate over vaccine mandates has been raging for months, but it has heated up in Gov. Kristi Noem’s backyard in recent months. South Dakota’s largest employer is Sanford Health, a hospital and health care system that employs nearly 10,000 people in the eastern half of the state. On July 22, Sanford, which operates in both Dakotas and Minnesota, announced it would begin requiring all its employees to get vaccinated for COVID by November 1.

Within weeks, two Republican members of the state House, Reps. Jon Hansen and Scott Odenbach, had introduced legislation punching back. The COVID-19 Vaccine Freedom of Conscience Act would give South Dakotans “the right to be exempt from any COVID-19 vaccination mandate, requirement, obligation, or demand on the basis that receiving a COVID-19 vaccination violates his or her conscience.” Just about any way in which a person might be personally inconvenienced by refusing a vaccine (other than contracting the disease) is summarily forbidden: “No person shall be subjected to any disciplinary action; being terminated, demoted, or losing employment status in any way; loss of student status, including status in a particular study program; nor shall any person be denied access to any business premises as a result of his or her decision to decline to receive a COVID-19 vaccination on the basis of conscience.”

By the end of August, state House Speaker Spencer Gosch had come aboard the mandate ban effort as well. The bill he introduced would deem a person’s COVID vaccination status “strictly confidential medical information,” and would make it a misdemeanor to require anyone to disclose that information.

Both houses of South Dakota’s legislature are overwhelmingly Republican; with leadership supporting such measures, the odds would be good that one could pass. But South Dakota’s legislature is out of session until November, which means they’d need to call a new special session to take up the legislation sooner. The legislature can call itself back into session with a two-thirds majority, but supporters of the legislation have instead called on Noem to call one herself.

The only problem: Noem doesn’t support the legislation.

It’s not that she’s the sort of Republican, a la Ohio’s Mike DeWine, who’s tried to keep her state COVID policies simpatico with the recommendations of the CDC throughout the pandemic—far from it. South Dakota never issued a stay-at-home order and was the only state that never required businesses to close last year. Although South Dakota weathered a heavy COVID surge relative to its neighbors, Noem’s supporters say her approach is responsible for helping the state rank among the best in the country in current economic performance relative to pre-pandemic levels.

Now, however, the laissez-faire approach that made Noem a conservative folk hero in last year’s fights has gotten her crosswise with her fellow Republicans on the issue of vaccine mandate bans.  

“Frankly, I don’t think businesses should be mandating that their employees should be vaccinated,” she said in a video posted to Twitter last week. “And if they do mandate vaccines to their employees, they should be making religious and other exemptions available to them. But I don’t have the authority as governor to tell them what to do. And since the start of this pandemic, I have remained focused on what my authorities are and what they are not. Now South Dakota is in a strong position because I didn’t overstep my authority. I didn’t trample on the rights of my people, and I’m not going to start now.”

This response quickly ran afoul of some national conservative pundits. “I am done, and have been done for a long time, with these Republicans who are too afraid to use their power,” the Daily Wire’s Matt Walsh said on his podcast. “No use for these Republicans who have made themselves useless.”

But this flippant response obscures what is in truth an interesting and pressing divide in philosophy between two types of “small government” conservative. The basic issue dividing Noem from other Republicans in her state isn’t a silly matter of which leader has the will to seize the reins of power to bring about good policy. It’s a question of what it means for a state to preserve freedom among its citizens. Is it, as Republicans have long supposed, primarily the role of government to get out of the way and let its citizens form private relations as they see fit? When is it the role of the state to insert itself into private relationships, like those between employers and employees, to ensure the powerful are not limiting the liberty of the powerless?

It’s important to emphasize that term, liberty, because both sides of this divide formulate their argument in those terms.

“If you were to take the political aspect out of [the vaccine conversation], and basically the total infringement on individual liberty out of it, people will make their own decisions as if we’re a free country,” Speaker Gosch told The Dispatch. “This bill’s meant to protect their individual liberties without having to discuss whether or not they’ve been vaccinated.”

Say you’re a Sanford Health employee who doesn’t want to be vaccinated. You didn’t have any input into whether or not vaccines would be required by your company, whose decision-making processes are as abstracted from you as any government’s. Your employment contract may have a non-compete clause, which means you can’t just quit and take a job at competitor Avera Health, which isn’t requiring vaccines.

A person in this situation sure doesn’t feel like his liberties are being upheld, Gosch argues, and it doesn’t much matter to him that the actor constraining their behavior is a private employer rather than the government.

“There is a realm of thinking behind [Noem’s] reasoning for banning these bills, that every Republican or every conservative would have to weigh,” Gosch said. “But at the end of the day, what is our country made of? Is it made of corporate liberty, or is it made of individual liberty? And that’s where I decided to tilt the scale in a different direction.”  

That framing—of the interests of individuals versus the interests of corporations, with the government balancing the interests of those two groups—is significantly different from the one offered by the governor and her allies: a private sphere of individuals, some of whom have banded together in businesses, into which the government ought intrude only when some begin to violate the rights of others.

“Nobody is stopping you from making that decision [not to get vaccinated], but you don’t have a right to a particular job,” Noem spokesman Ian Fury told The Dispatch. “The business owner has the right to his business. You do not have a right to an individual job, because you don’t own that business.”

That isn’t to say Noem thinks the government should be completely unconcerned about the relations between employees and employers. During this past legislative session, for instance, she signed a new law forbidding the sort of non-compete clauses in the contracts of health care workers. (Under South Dakota law, new laws are typically not retroactively effective, which is why some workers are likely still to be in the bind Gosch described.)

Philosophically, that puts Noem firmly in the camp of free-market Republicans past: largely content to preside passively over a state economy in which companies are free to set their own standards of conduct and employees are free to work for companies that share their values—and quit jobs if they don’t.

“South Dakota has been outperforming every state by a wide margin,” Fury said, “and it’s because of the respect that Gov. Noem has had for liberty. … If she were to change that trajectory now to go back on the approach that has made South Dakota the strongest economy in America to this point, we could risk undoing all of that.”  

The conversation around this genuine ideological disagreement is easily obscured on several fronts. First, there’s the fact that all this is taking place as part of a larger political conversation motivated by reactionary backlash against, of all things, the COVID vaccines. (Gosch made a point of saying early in our conversation that “I’m not against vaccinations,” but soon wrapped around to talking about how “this vaccine was rushed through every process imaginable and is arguably still experimental, regardless of an FDA approval or not.”)

Second, there’s the fact that insofar as these stories break into the national conversation, it’s primarily through the commentary of folks like Matt Walsh, who are more interested in building up a narrative of whether a possible presidential contender like Noem is “with us” or “against us.”

And it’s true: Noem has been bandied around as a possible 2024 presidential candidate. Earlier this year, she came in second to Florida Gov. Ron DeSantis in a CPAC straw poll (one that excluded Donald Trump). How stories like this filter through conservative media, and whether Republican voters still find her vision of governance compelling when they’re less cheerful about the outcome, will dictate whether that possibility keeps its legs over the next few years.

Whether Noem stays in the national picture or not, though, this question isn’t going away. Is a Republican government one that primarily exists to protect peoples’ basic rights and otherwise permit them to associate as they see fit? Or is it one that exists to ensure Republicans don’t have to do things they don’t want to do?

Andrew Egger is a former associate editor for The Dispatch.