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Legality of Vaccine Passports Mired in Mix of Interpretations

April 7, 2021 by Tom Ramstack
Texas Gov. Greg Abbott. (James Gregg/Austin American-Statesman/TNS)

An executive order on Tuesday from Texas’ governor that prohibits state agencies from using tax money for vaccine passports is kicking up a dispute over the breadth of public health laws during the COVID-19 pandemic.

Airlines and other private companies are moving ahead with their own plans for proof of vaccination from customers. President Joe Biden has said the federal government would not sponsor vaccine passports but might endorse private companies that pursue their own.

Vaccine passports refer to official cards or free mobile apps that can be displayed for proof of vaccination, coronavirus test results or other health waivers. 

The Texas restriction on them creates uncertainties about how far the state can extend its authority over vaccine passports issued by other entities.

So far, the limit is only against state action but Florida and other states plan to be more expansive.

Hanging over the dispute are constitutional and state law rights to privacy that their advocates say make vaccination requirements illegal.

“Government should not require any Texan to show proof of vaccination and reveal health information just to go about their daily lives,” Texas Gov. Greg Abbott said in announcing the ban on vaccine passports.

He added, “We will continue to vaccinate more Texans and protect public health — and we will do so without treading on Texans’ personal freedoms.”

They are running up against business owners and school administrators who say proof of vaccination is the only practical way of returning to business as usual. Otherwise, customers and students will stay at home.

They are drawing support from some economists and politicians who say they want to restore the job market and economy, which cannot happen under quarantine.

In one example, San Francisco’s city-sponsored COVID-19 command center issued a recent statement about vaccine passports that said, “We are looking into areas where this could be useful and, in particular, where larger numbers of people are coming together.”

Many businesses and schools are not waiting for government disagreements over vaccine passports to be resolved.

Eight airlines so far are requiring proof of vaccination from their passengers.

For flights to Hawaii, the state plans to require them beginning in the summer, unless passengers are willing to be tested on-site before flying. The governor’s office still is working out details and a start time for the vaccine passports.

The universities of Brown, Cornell and Rutgers are invoking state public health laws to require proof of vaccination for all students enrolling in the fall semester of this year.

Federal and state laws generally favor proof of vaccination for entry into some organizations, such as the military and schools.

Further support for vaccine passports can be found in the 1905 Supreme Court ruling in Jacobson v. Massachusetts that says states can fine residents who neglect to be vaccinated against smallpox.

“A community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” Justice John Marshall Harlan wrote.

Airlines and other private companies have much more discretion to refuse to serve or employ anyone they want.

However, the discretion of the private companies could be overridden by state law or executive order, which Florida’s Republican Gov. Ron DeSantis invoked on March 29.

He issued an executive order banning requirements of vaccine passports for admission to nearly any venue in the state, including movie theaters, sporting events, theme parks and airplanes.

“It’s completely unacceptable for either the government or the private sector to impose upon you the requirement that you show proof of vaccine to just simply be able to participate in normal society,” DeSantis said.

Mississippi’s Republican governor, Tate Reeves, also opposes proof of vaccination by private companies.

New York is taking the opposite approach by unveiling its “Excelsior Pass” March 27 for use at sporting, entertainment and other events. State officials describe the pass that can be downloaded and displayed on mobile devices as “a free, fast and secure way to present digital proof of COVID-19 vaccination.”

The event sponsors are not required to use them but have the option of excluding customers who do not display them.

“The question of ‘public health or the economy’ has always been a false choice — the answer must be both,” Gov. Andrew Cuomo said in a statement. “As more New Yorkers get vaccinated each day and as key public health metrics continue to regularly reach their lowest rates in months, the first-in-the-nation Excelsior Pass heralds the next step in our thoughtful, science-based reopening.”

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