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  1. #1
    Senior Member johnwk's Avatar
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    Jan 1970

    Judge uses invalid case to deny Oregon workers protection against forced vaccination


    SEE: Federal judge denies effort to block Oregon’s vaccine mandate by 7 workers who had COVID-19 (

    In the court’s Opinion and Order we find the following by Judge Ann Aiken:

    "Plaintiffs contend that the vaccine mandates implicate a fundamental right to bodily integrity and privacy and that strict scrutiny should apply.

    “As the Seventh Circuit recently noted, “such an argument depends on the existence of a fundamental right ingrained in the American legal tradition.”

    “Plaintiffs’ argument was foreclosed more than a century ago by Jacobson v. Massachusetts, 197 U.S. 11 (1905), in which the Supreme Court sustained a criminal conviction for refusing to be vaccinated."

    What Judge Aiken seems to intentionally ignore is, JACOBSON v COM. OF MASSACHUSETTS was decided decades before our judicial system adopted the strict scrutiny standard to protect American citizens whenever a government action infringes upon a fundamental right.

    How on earth can Judge Aiken truthfully assert the “Plaintiffs’ argument was foreclosed more than a century ago by Jacobson v. Massachusetts, 197 U.S. 11 (1905)”, which is prior to our judicial system having adopted the protection of “strict scrutiny”?

    The unavoidable truth is, JACOBSON is outdated and irrelevant with respect to today’s circumstances. An abundance of case law today commands that whenever a fundamental right of American citizens is infringed upon by a government act, and the right is claimed to be infringed upon, the act is to be viewed as being “presumptively unconstitutional” and to resolve the issue, the protection of strict scrutiny kicks in.

    Heck, even in JACOBSON which Judge Aiken references, the court confirms: “If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force…”

    Perhaps judge Aiken was really asserting the Plaintiffs’ medical privacy, decisions, choices’, and autonomy is not within that bundle of rights which American citizens have long held to be fundamental, and if infringed upon by a government act, do not deserve the protection of strict scrutiny? If so, she ought to have explained what our Supreme Court was saying in Washington v. Harper, 494 U.S. 210, 229 (1990)? “The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty."

    And with regard to the meaning of a force with respect to a government mandated vaccination, our Supreme Court, in Shapiro v. Thompson, 394 U.S. 618 summarized that the mere chilling of a Constitutional right by a penalty on its exercise is patently unconstitutional.

    Government objectives ". . . cannot be pursued by means that needlessly chill the exercise of basic constitutional rights. Cf. United States v. Robel, 389 U.S. 258 ; Shelton v. Tucker, 364 U.S. 479, 488 -489. The question is not whether the chilling effect is “incidental” rather than intentional; the question is whether that effect is unnecessary and therefore excessive . . .UNITED STATES v. JACKSON.

    And now, let us keep in mind the protection of strict scrutiny is not meant to prohibit a government act, which in this case is asserted to be necessary in promoting the general welfare of the people. Instead, the protection of strict scrutiny is there to insure the act of government:

    (A) be narrowly tailored to achieve the government’s purpose,

    (B) the purpose must be clearly defined and be based upon scientific and logical reasoning,

    (C) and, it must use the least restrictive means to achieve the government’s stated purpose.

    Our judicial system needs to stop abdicating its duty and start protecting our police, firefighters, and teachers, and afford them the protection of strict scrutiny which they are indeed entitled to under our system of law.

    Is our judicial system so inept that it is incapable to apply “strict scrutiny” in a manner which allows the use of vaccination in furthering the general welfare, while at the same time accommodating the rights of public employees? For example, requiring the use of N95 masks in appropriate situations; having a daily temperature check of employees when showing up for work; periodic testing for the COVID virus; social distancing; providing an exemption for those with natural immunity, and/or those who are resistant to the vaccination, but hold them to the above precautionary methods; and other such common sense measures which could be narrowly tailored by the Court to promote the general welfare of all, while likewise preserving the rights of government employees.

    Is not time for our Supreme Court to step in and end the divide among our citizens, and work to accommodate all in such troubled and contentious times?


  2. #2
    Senior Member johnwk's Avatar
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    Jan 1970
    I'm still waiting for someone to explain why the protection of "strict scrutiny" should not be applied to government mandated vaccinations.


    The Democrat Party Leadership, once an advocate for hard working American citizens and their families, has now GONE MAD

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