In the midst of the sports-world uproar over the revelation that Aaron Rodgers, the Green Bay Packers quarterback, had deceived the public about whether he had been vaccinated against COVID-19—he hadn’t, which came out after he tested positive for the disease—Max Kellerman, an ESPN commentator, made an observation about how vaccine rules work. “X number of people say, ‘I don’t want to get vaccinated—it hasn’t been out long enough, I don’t know the effects,’ ” Kellerman said. But, he added, when there are mandates the “vast majority of people just get the vaccination.” The reason, he said, is that people decide differently “when there is low to no cost” than they do when there are real consequences to the choices they make.
Kellerman appears to be correct. In New York City, the Police Benevolent Association warned that ten thousand officers would be “pulled from streets” because they wouldn’t meet the city’s November 1st deadline for municipal employees to be vaccinated. Only a few dozen were, though others have applied for exemptions. Another oft-cited example is Tyson Foods, which instituted a mandate despite fears that doing so would make it too hard to find workers in red states where the company operates; by the end of last month, more than ninety-six per cent of its workforce had been vaccinated. Similarly, Rodgers notwithstanding, around ninety-four per cent of National Football League players are vaccinated, even though the league’s mandate, negotiated with the players’ union, offers them an alternative: they can continue to play if they get tested daily and wear masks inside the team’s facilities, among other restrictions. It might seem obvious that there is a cost to not getting a vaccine that offers protection against a virus that has killed three-quarters of a million Americans, but nationwide only sixty-eight per cent of those over the age of eleven are fully vaccinated. And so, amid concerns about a winter surge—already emerging in Europe—more mandates and vaccination-related rules are being introduced.
Part of the controversy in Rodgers’s case is particular to him: a three-time M.V.P., he seems to have been allowed to operate by his own rules. Both the Packers and the N.F.L. knew that he wasn’t vaccinated, but they didn’t respond in any effective manner when Rodgers, asked directly if he was vaccinated, told reporters, “Yeah, I’ve been immunized,” and also violated the league’s protocol. (Last week, the N.F.L. fined the Packers three hundred thousand dollars for failing to enforce its protocol, and Rodgers fourteen thousand six hundred and fifty dollars, in part for attending a Halloween party, in a John Wick costume, unmasked.) More broadly, the Rodgers affair has become a showcase for misinformation about vaccines. In a sprawling interview on “The Pat McAfee Show,” on YouTube, Rodgers said that he was being pursued by a “woke mob,” and listed one false claim after another: there is a way to immunize oneself without getting COVID or a vaccine; vaccines might interfere with his someday “being a father”; his friend Joe Rogan, the podcast host, had the medical answers he needed; freedom is at stake and he shouldn’t have had to follow rules designed to cause “shame.”
Similar distortions can be found in a sheaf of new lawsuits aimed at vaccine mandates. Some of these concern state or local rules; the Supreme Court has declined to block mandates involving health-care workers in Maine, state-university students, faculty, and staff in Indiana, and public-school employees in New York. One of the biggest targets, though, is a federal rule promulgated by the Occupational Safety and Health Administration on November 4th, and intended to go into effect on January 4th, which covers workers at firms that employ more than a hundred people. It is, properly speaking, a vaccine-or-test mandate, since workers have the option of getting weekly tests and wearing masks in certain settings, and it doesn’t apply to those who work only outdoors or remotely.
On November 6th, a panel of judges in the Fifth Circuit stayed the enforcement of the mandate in a case in which the lead plaintiff operates fifteen supermarkets in Louisiana and Mississippi. By Friday, cases had been filed in eleven of the nation’s twelve judicial circuits. They will be consolidated, and a special judicial panel is expected to hold a lottery this week to determine which circuit will hear, and thus shape, that case. (It will almost certainly reach the Supreme Court.) Some unions that have supported mandates filed suits, too, perhaps hoping for a lottery win for a relatively liberal circuit. Many of the suits, though, portray vaccine mandates as a form of federal tyranny—one calls the OSHA mandate a “diktat”—downplaying the extent to which the spread of an infectious disease affects the freedom of others. The Supreme Court, for its part, may focus on whether OSHA is the proper body to issue such a rule; public health is traditionally a state concern, but OSHA does deal with workplace risks.
Yet mandate opponents have gone to court even when the federal government’s role is clearer. Last Wednesday, Eric Schmitt, Missouri’s attorney general, joined by his counterparts from nine other states, filed suit against a Biden Administration mandate that employees of health-care providers that receive Medicare and Medicaid funds must be vaccinated. Schmitt is running for the Republican nomination for the Senate, and may see an opportunity. Glenn Youngkin, the Republican who won the Virginia governor’s race this month, campaigned against vaccine mandates. In the wake of that victory, Republicans have been open in their hope that mandates will inflict a political cost on Democrats. Senator Ted Cruz, of Texas, is leading an effort to block mandates through legislation. It’s a cynical line of attack, and one that’s likely to be increasingly infused with emotion now that more children are eligible for the vaccine.
The Biden Administration, in a filing last week, argued that staying its mandate “would likely cost dozens or even hundreds of lives per day.” The challenge lies in communicating that reality to a distrustful and polarized public susceptible to fears of big government or Big Pharma. The bet is that, as mandates help the country return to something like normal, they will cease to be seen as frightening abstractions and, instead, be recognized as what they are: practical measures that offer much while asking little. Vaccines work; so do mandates. But not, it seems, without a fight. ♦