Renowned civil libertarian Alan M. Dershowitz reacted Friday to Bible-citing critics of his contention that the Constitution gives the state the power to forcibly vaccinate citizens to curb an infectious disease.
“Anti-vaxxers are free to cite science, philosophy, law — but do not miscite the Bible or God,” he wrote in a column for the Gatestone Institute, where he serves as a senior fellow. “It is irreligious and insults the intelligence of those who have actually studied the Bible by assuming, as many do, that the Bible opposes everything they oppose.”
The debate began Sunday when the famed Harvard Law School emeritus professor said in an interview the state has the power to forcibly “plunge a needle into your arm,” as WND reported in a story linked by the Drudge Report. On Wednesday, Dershowitz told Fox News’ Tucker Carlson that “one can make a plausible argument that nobody should be required to be subject to a dangerous vaccination to help other people.” However, emphasizing it’s settled as a constitutional issue, morally, he left open the door for forced vaccination, saying he wouldn’t require someone to take a vaccine “unless it would prove very, very safe.”
“In general, if the vaccine is deemed extremely safe, then the state does have a right to compel you to take it,” he said Wednesday.
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Now, in his Gatestone Institute column, he admonishes religious believers who have used the Bible to argue against his stance.
“Invoking the Bible and God is intended not as a stimulus to further debate, but rather as an argument-stopper: God is against it; no further discussion, research or argument is necessary; the debate is over,” he writes.
“They simply assume that God is on the side of every political or ideological position they espouse. If that is not taking the name of God in vain, I don’t know what is. And I have a source for that: The Ten Commandments.”
To bolster his argument, Dershowitz cites the biblical book of Leviticus, chapters 13 and 14, which says the “priest shall isolate” the contagious person for seven days and then an additional seven days if the contagion persists.
“And he shall dwell alone; his dwelling shall be outside the camp.”
The quarantine, he argues, was not voluntary, noting the priest “could compel it.”
See Dershowitz’s remarks Sunday:
Dershowitz says most of the emails and phone calls he’s received since stating “the Constitution permits safe mandatory vaccination against highly contagious and lethal diseases have been from anti-vaxxers who claim the authority of the Bible.”
“Have they actually read the Bible? Of course, the Bible says nothing about vaccinations: they were not even imagined at the time, but the Bible speaks volumes about the need to prevent the spread of contagious diseases,” he writes.
‘Weaponizing the Good Book’
Noting the devil “can cite scripture to his purposes,” Dershowitz points to supporters of slavery, anti-Semites and “anti-gay bigots” citing the Bible.
“And now anti-vaxxers are distorting and weaponizing the Good Book, religion and God against science,” he says.
“This has happened before, with evolution, the age of the earth, abortion and assisted suicide. But this time the anti-vaxxers who cite the Bible have no plausible argument as anyone can see by turning to Leviticus and other portions of both the Jewish Bible and the Christian New Testament.”
Dershowitz says that while it’s not a crime to “miscite the Bible for political or ideological purposes,” it “surely is a sin to take God’s name in vain.”
“The idea that a deity who demands that we choose life would have opposed the ending of smallpox, polio, Ebola and other contagious diseases whose spread has been prevented by vaccines, defies understanding by those of us who have actually studied the Bible.”
See Dershowitz’s interview Wednesday on “Tucker Carlson Tonight”:
‘No constitutional right to endanger the public’
Dershowitz said in the interview Sunday that the government has a constitutional right under the 10th Amendment to forcibly vaccinate a citizen to curb the spread of a contagious disease.
“Let me put it very clearly, you have no constitutional right to endanger the public and spread the disease, even if you disagree. You have no right not to be vaccinated, you have no right not to wear a mask, you have no right to open up your business,” he said.
The interviewer, Jason Goodman, interjected, asking if the famed constitutional scholar was saying that if the government decides “you have to be vaccinated, we have to be vaccinated.”
“Absolutely,” Dershowitz replied. “And if you refuse to be vaccinated, the state has the power to literally take you to a doctor’s office and plunge a needle into your arm.”
“Where is that in the Constitution?” Goodman asked on his web show, “Crowdsource the Truth,” which was posted Sunday on YouTube.
Dershowitz clarified that if a person is threatened with a deadly disease that is not contagious, he can refuse treatment.
“But you have no right to refuse to be vaccinated against a contagious disease,” he said.
“Public health, the police power of the Constitution gives the state the power to compel that,” Dershowitz said. “And there are cases in the United States Supreme Court.”
Dershowitz added that there are “cases after cases after cases” in which courts have ruled in favor of “reasonable actions to prevent the spread of communicable diseases.”
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The Harvard professor – who defended President Trump in his Senate impeachment trial – was referring to the state police power doctrine derived in part from the 10th Amendment.
The Supreme Court has recognized each state’s “police power” – defining “police” as polity or government rather than law enforcement specifically – which gives the state authority to enact health laws, including quarantine and vaccination requirements, to protect public health.
On Monday, amid a race for a vaccine against the novel coronavirus, the drugmaker Moderna received positive results from a Phase 1 clinical trial for its experimental COVID-19 vaccine, sparking a 900-point rise in the Dow.
Right to liberty
The argument against forcible vaccination is based on the 14th Amendment’s provision that no state “shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law.”
But Dershowitz points to the Supreme Court’s Jacobson v. Massachusetts decision in 1905, which concluded a state may require vaccination if the board of health deems it necessary for public health or safety.
The court found the police power of a state included reasonable regulations established by the legislature to protect public health and safety.
The regulations didn’t violate the 14th Amendment right to liberty, the court said, because they fell within the restraints to which everyone is subject for the common good.
If any individual is allowed to act without regard to the welfare of others, true liberty does not exist, the court argued.
More than a century later, the Jacobson decision “has not been revisited in any meaningful way,” noted the AMA Journal of Ethics in 2006.
It has stood all this time, not allowing “a single individual to refuse vaccination while he or she remains within the general population on the grounds that to make such an exception would strip the legislative branch of its function to care for the public health and safety when threatened by epidemic disease,” wrote Sarah Fujiwara, MD, then a student at DePaul University College of Law and an intern at the American Medical Association.
“This ruling prevails despite occasional injurious results from vaccinations and the impossibility of determining whether a particular person can be safely vaccinated,” she wrote.
“The only exception to a mandatory vaccination is an offer of apparent or reasonably certain proof to the state’s board of health that the vaccination would seriously impair health or probably cause death.”