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.

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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.

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  1. Avatar photo
    Ben Connelly

    Thank you, Andrew, for an interesting breakdown of the philosophical questions at play here. I confess, this is where I realize that much of the Republican Party is not conservative in the way I traditionally understood that term. “Individual rights” is a talking point and it’s all about, as Matt Walsh makes clear, power.

    Nobody has a fundamental right to a job in any particular industry. Whereas a business has certain property rights that come originally from the rights of association of the people who formed the business. I’m not always the biggest fan of Noem, but she’s pretty clearly in the right here. Used to be, her position would have made her Right, too. But now, Right, means anti-vax in some corners.

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    Jason Gibson

    She went way up on my list. Well done Governor

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    Barry Alexander

    Surprising from Noem, given how she has previously embraced the new Right, to the extent of preferring more deaths to requiring masks in public. Still too Trumpy for me, though.

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    CVS

    "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?"

    That's a damn good question.

    If the former is the answer, I'm on board. If the latter, I'm not.

    Problem is increasingly it's the latter. Leaving me politically homeless.

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  5. D. M. Rob

    "It can be freedom only when nobody owns it" - Jackson Browne from the song Walls and Doors

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    Angie

    Good Piece Andrew thanks...brings to mind , even a broken clock is right twice a day

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    Mick.Staton

    The government has had no problem in the past in limiting the power of employers to mandate behavior, looks, activities, etc.. of the employees. States across the country are passing "ban the box" laws which forbid employers from asking about criminal history. Employers are not allowed to fire a man who decides they are now a woman, and begins to dress like a woman, even if that employee is a customer facing one that costs the employer business and revenue.

    I don't see how my vaccination status for a specific virus that has a 0.4% change of mortality if I catch it can be used as a condition of employment. It is not a safety issue. Anybody that wants to be protected from this virus is more than welcome to be vaccinated, and we are being assured every day that they are both safe and effective.

    It has no effect on my job performance. I already had covid and worked right through it (I work from home full time, so relax everyone). I felt sick, and missed all of two hours of work one afternoon when I got tired and took a nap (and then I made up the time later that night).

    I am pleased to see so much support for the rights of private employers here, but I think that support would quickly erode if an employer wanted to make their employees take monthly STD tests, or asked them to report the number and type of sexual partners in order to assess the risk of STDs for their employees and customers?

    I wonder how many people here would appreciate a company mandating weekly church attendance at the employer's church as a condition of employment?

    The idea that you abandon all privacy rights when you take a job is ludicrous. No, you don't have a right to a job, but your employer does not have the right to control your life either. There are limits in everything, and I don't think this issue rises to the level where an employer should be able to use it as a condition of employment.

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    1. Ben P

      You're aware that health care workers regularly come into close contact with those who are most vulnerable to COVID-19, right? Because from this post it almost sounds like you're arguing the case for why *you*, who works from home, should not be required to get vaccinated. The purpose of this proposed mandate is to try and keep people who are in hospitals alive.

      Let's suppose, for the sake of argument, that you have an elderly loved one in an assisted living facility. These are places where COVID has run rampant, and where people who get it have a risk of death that vastly exceeds the "0.4% change" figure that you quoted (be interested to find out where that comes from BTW). Do you think that this assisted living facility should be prohibited by the government from mandating that their staff are vaccinated? Do you realize that what happens in these places when a COVID outbreak hits is that they shut down completely and families are not allowed to go see their relatives?

      This is the kind of thing we're talking about. You, with your work from home job, are safe from potential mandates. Those who took a line of work that involves coming into close contact with people in the poorest of health are in a position to do a bit more harm.

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      1. Avatar photo
        Mick.Staton

        "You're aware that health care workers regularly come into close contact with those who are most vulnerable to COVID-19, right?"

        Yes, I am, and nobody seemed to mind when they were caring for covid patients last year, and I am pretty sure that someone who needs to go to the emergency room is not going to stop and ask the nurse giving him an IV or the doctor about to perform life-saving surgery if they have had their covid shot.

        "Because from this post it almost sounds like you're arguing the case for why *you*, who works from home, should not be required to get vaccinated."

        I am not worried about *me* for the reason you just described. I work from home (full time since 2014). Even if my employer tried to force me to take the vaccine I expect I have a pretty good legal case for why I should not have to.

        "Those who took a line of work that involves coming into close contact with people in the poorest of health are in a position to do a bit more harm."

        Did you know that WalMart is mandating their corporate office workers be vaccinated, but they are NOT mandating their store employees be vaccinated? Imagine that. The very people who come into close contact with thousands of people a day are not required to be vaccinated, but the people who sit in a corporate board room are. Virtue signal much?

        Here's the point. If you are worried about covid, get the shot and you are protected. If you are not worried, then don't. Covid is endemic. It is never going away. In another year or two the covid vaccine is going to be another annual booster they offer with the annual flu shot. Last time I checked employers for fast food workers and office workers were not mandating the flu shot.

        You want more people to take this shot? Incentivize them. Don't threaten them. Even the polio vaccine was not mandated when it was developed. It was voluntary. It was not mandated as a condition of attending public school until years later when it was proven safe, and even now all mandated vaccines for public school (which is the only place other than the military that has vaccine requirements) has a religious exemption.

        You are never going to vaccinate everyone in the US, and we don't need to in order to get to herd immunity so stop flexing your authoritarian muscle or you are going to just push more people into the anti-covid vax camp.

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      Patrick

      Making a comment about how you already had COVID and it was no big deal does not give me much confidence in your arguments.

      But that aside, how about the case for cold, hard capitalism? If I’m an employer with 10k employees, and a disease is going to kill 40 of my employees (by your number), and hospitalize maybe 800 more, isn’t it in my immediate financial interest to require vaccination? If the governor tried to prevent me from requiring it, I would pursue my legal avenues as a business owner.

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        Mick.Staton

        "Making a comment about how you already had COVID and it was no big deal does not give me much confidence in your arguments."

        Every single person in my family had covid and did just fine. It was not even the worst cold I have had. I personally know about two dozen people that have had covid, and not one of them had severe symptoms.

        BTW, your example is fatally flawed. You assume all 10,000 of your employees will catch covid which is statistically impossible. After 18 months of a pandemic a little more than 10% of the us population have caught covid. That means that out of your 10,0000 employees, maybe 1,000 would catch it, maybe 80 are hospitalized, and maybe 4 die. You will have more employees than that die from car accidents, or heart disease, or a host of other issues more than covid in the next year.

        On top of that you will be paying enormous legal bills in your drive to force your employees to take something they don't want to take. If you make it past the legal challenges and refuse to provide religious exemptions, then you face the added HR costs of (and PR costs) of terminating employees, losing their productivity.

        Right now about 70% of eligible people have been vaccinated. That leaves 30% who aren't. Are you willing to fire 30% of your workforce to make a point? You might as well just shut down your whole business if you are going to do that because that kind of hit to your productivity would be hard to recover from.

        I would consider that malpractice, and it is why most businesses are not mandating the vaccine.

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          Patrick

          Honestly Mick, I didn’t read past your first paragraph.

          Anybody basing an argument about a disease that’s killed millions worldwide based on how it affected the people he knows just doesn’t have a chair at any legitimate discussion.

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            Mick.Staton

            Honestly, Patrick, that says far more about your arrogance and ignorance than it does about me.

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    3. CatoTheElder

      Okay, so you don’t see how vaccination status “can be used as a condition of employment”. But you do this, it seems, on the predicate that “It is not a safety issue. Anybody that wants to be protected from this virus is more than welcome to be vaccinated….”

      Both of these latter two statements are demonstrably silly at best. Whether a given person is vaccinated can indeed, and often is, a safety issue. The problem is that myopic egoists cannot see far enough past their own interest to see how vaccination status can affect a large range of others. I can hear the challenge now: “Oh, yeah, what others? People can get vaccinated if they want.”

      Some examples of legitimate safety concerns:
      ••children 12 yr and under that cannot (yet, at any rate) get the vaccine
      ••elderly persons and those of general ill health or immunologically suppressed such that even a “mild” case of Covid could prove fatal.
      ••health care workers in various settings caring for seriously ill persons in either category above, or in the age in between the two categories, where protection from the virus in all reasonably practicable ways is encouraged.
      ••persons with elderly people or young children living with them at home.
      ••people who still don’t want to become ill with Covid, even though their vaccine might prevent severe disease or death, because they will have to miss work for 10 days or more, or because they have others with whom they live or work that would be at risk of catching it and missing work, travel, etc. themselves
      ••people who travel a lot and don’t want to risk being stranded somewhere for 10-14 days or more when they become Covid-positive
      ••people who, though they’ve been vaccinated, just don’t wanna mess around with the disease (recognizing that not everyone vaccinated who contracts the disease is fortunate enough to get such a mild case that they miss “all of two hours of work one afternoon”).
      ••people that don’t want to be a vector of transmission between some yahoo who refuses to take reasonable precautions and is thus spreading the virus and the remainder of society.
      ••people who would….oh, never mind.

      Enough. Let’s move on the parade of straw men: first up—monthly STD tests! Well, assuming for the moment that sexual interaction is not one of the primary work activities of a given company, it’s gonna be pretty ridiculous for that company to mandate, say, urethral swabs once a month. But let us know when someone proposes that. Now, for companies wherein sexual activity is a keystone of their product line, well…there are certain employees in Nevada that are faced with mandates for such things.

      Next up: mandating church attendance! Oh, my, this is a big one. Well, it might interest Mick to know that some religious employers do require regular attendance at religious services. Example: many private Christian schools require such of their staff. But such requirements are, oddly enough, restricted to…religious organizations. Non-religious organizations don’t have a rosary’s chance in Hades of imposing such a requirement.

      Nobody has remotely suggested that anyone “abandon all privacy rights when you take a job….”

      Mick is right that there are limits to pretty much everything, and it’s just absolutely hunky-dory that his opinion is that this doesn’t rise to the level where an employer should be able to mandate action. But in his democracy-and-freedom-loving heart I hope he can understand that sometimes his opinion—or mine, or that of the guy on the FedEx truck that just roared past—is not dispositive. There is a balance to be reached between public health and personal privacy. This isn’t news—dang near everyone in the country has had some opinion about personal privacy in the face of Covid restrictions about every thirty minutes or so since this whole pandemic thing started back when—how long now? Was it the first Bush administration?

      As public health actions, vaccination requirements have saved many, many millions of lives over the last several decades, and prompt development and implementation of same regarding the Covid pandemic have no doubt saved many million more. But yeah, let’s just have everybody do their own thing from now on. That’s not called democracy, by the way. It’s called anarchy. Good luck with that.

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      1. Avatar photo
        Mick.Staton

        Wow. That's a lot of digital ink to spill for a weak ad hominem attack. That whole screed boils down to, "you are a stupid, evil person for not jumping on the vaccine bandwagon and doing everything we say in order to protect vulnerable people from your ignorance."

        At no point did you actually address the main point which is, "what legal right does a business have to mandate a covid vaccine as a condition of employment?"

        The only place vaccines are mandated right now are in public schools and even those have a religious exemption. Even the polio vaccine was not mandated when it came out. It was voluntary, and was not made mandatory until years later when it was proven safe.

        Most hospitals do not even require flu shots for their workers, but you want to have every Tom, Dick, and Harry corner store start firing people if they don't want to take a vaccine that has just barely finished a fast-track review and has no data on long term side-effects, for a virus that is marginally more dangerous than the seasonal flu, and has already become endemic and will never go away.

        What I am seeing is that most businesses are NOT mandating vaccines, and that is a good thing. I am sure at some point there will be a business that mandates it, and a legal challenge that makes its way through the court system to give us actual arguments and case law on the matter, but until then most businesses seem to be looking at this as, "just because maybe we CAN do this, doesn't mean we SHOULD do this." I also think they are looking at the prospect of having to fire 30% of their workforce and replace them with only vaccinated people in an extremely tight labor market.

        America is not a Democracy, it is a Representative Republic. We elect people to propose and enact laws on our behalf. If our representatives want to try and pass a law to force employers to mandate covid shots, they can try. Similarly, if our representatives want to pass a law to forbid mandating covid shots, they can try that, too. If we don't like it, we can work to replace those representatives in the next election. That is the system I advocate. That is not anarchy.

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        1. CatoTheElder

          I’m disappointed that you read my comment as an ad hominem attack. I think that a re-reading might be enough to dissuade you from that. I shan’t bother with more on that at present.

          You claim that I failed to address the “the main point which is, ‘what legal right does a business have to mandate a covid vaccine as a condition of employment?’”

          You’re right, I didn’t address that directly—at least largely because your “main point” was never clearly expressed.

          Your diatribe that follows that claim is rambling, disjointed, and ill-informed. You impute ridiculous ideas to me for which there is no rational basis, and then use these to try to buttress what it seems you think passes for logical argument.

          Given all this, I am faced with a choice: either continue to engage, in hopes of saner interaction, or walk away and leave you to your own affairs. I choose the latter.

          I wish you the best.

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          1. tla

            and "I award you no points, and may God have mercy on your soul."

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            Mick.Staton

            Wow. You and Patrick are almost equal in your arrogance. I often find people unable to defend their position resorting to the, "you are too stupid to waste my brilliance on" defense as their excuse for walking away.

            Have a nice day.

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        2. tla

          So is it your view that any law that Government passes is a just law because we're a representative democracy?

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            Mick.Staton

            Are we really going to play these, "go down the sidetrack rabbit hole" games?

            No, I don't believe every law a government passes is a just law simply because we're a representative republic. We have multiple avenues to deal with unjust laws. One avenue is the courts. Another avenue is the ballot box.

            Any more questions?

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    4. KyleGF

      This is ridiculous. Requiring church attendance and STD tests are highly different than requiring a vaccine against a highly communicable disease. The idea that “if an employer can mandate x, they can mandate anything” is a classic slippery slope fallacy.

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    Mudskipper

    "'South Dakota has been outperforming every state by a wide margin,' Fury said..."

    I was curious to see if that is true and so I did a little researching. To my not-surprise, there appears to be some exaggeration going on. South Dakota has been doing well, but so have some other states and there is no wide margin that I can see.

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    1. tla

      While I think there are very credible economic and social reasons not to go into full lockdown again, the economic arguments are usually made by the same people who often anti-mask and anti-vaccine.... As for South Dakota, I imagine most of its success derived from not being a tourist destination.

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        JohnF

        And from being a state 9X the size of New Jersey with 1/10th of the population.

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        1. tla

          Indeed. My original comment was more relation to economic activity but it plays for the disease as well. If anything South Dakota has been relatively hard hit from Covid given those factors you mention.

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    Matt A

    Interesting as the fireworks of an ideological clash might be, as an SD native let me pitch in a more boring perspective. Despite the inordinate amount of time Kristi blocks off in her schedule for national media commentary, at the end of the day she’s still a governor. And it’s difficult to overestimate the power of the Sanford Health lobby in Pierre.

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      Jesse.Wick

      Good to know. 👍

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      Matt A

      i.e. Sanford’s annual revenue is about 12.5% of the GDP of the entire state

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      1. Acre00

        I didn't believe that at first, but it's roughly accurate. I just did a bit of googling, and it seems Sanford has operating revenue of about $5 billion, while the state has a GDP of $54 billion. So the actual percentage is 9.26%.

        That's absolutely insane.

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          Matt A

          First number I saw was $6.7B, but I’m not an expert on which dollars count.

          It’s another “denominator problem” since it’s such a small state…. If SD was a county, it would rank 67th in the US for population.

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        2. Seth

          That really is wild.

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  10. P Satter

    One thing that confuses me a bit is the "they should be making religious and other exemptions available to them." Any vaccine mandate includes those who cannot be vaccinated for medical reasons. But traditionally to receive a religious exemption, one would have to show membership in a religious group that was opposed to a particular activity on religious grounds.

    I received my vaccines at a local Baptist church. Our Presbyterian church had someone assisting the elderly congregants to get computer Covid vaccine appointments early on. The local Foursquare Church hosts Covid vaccine clinics every Friday, according to their signs. Many overseas mission groups provide infant vaccinations as part of any medical mission.

    What religious group expressly does not allow vaccines or specifically Covid vaccines and does someone need to prove membership in this group to receive an exemption? Are people claiming a religious reason when it has nothing to do with an actual church tenet and is just their own opinion based on their trust in nontraditional medical sources?

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    1. Seth

      I believe Jehovah's Witnesses may be one.

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      1. P Satter

        https://slate.com/technology/2015/02/religious-exemption-for-vaccines-christian-scientists-catholics-and-dutch-reform-church.html

        JW don't receive blood products, but it looks like they changed any avoidance of vaccines at some point in the past. Link above is from 2015, but it looks like Christian Scientists and a Protestant denomination in Holland are the main ones.

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