With the advent of the deceptively named “vaccine passport” concept, coronavirus vaccines have quickly turned from savior hailed by an American populace desperate for a return to some semblance of normalcy into a cudgel with which to beat the vaccine heterodox into submission. Add the relentless desire for Big Tech to collect all data it can suck into a rapacious corporate maw to be digested into more profits and more power over our lives, and you have a perfect storm of tyranny.
Currently, the COVID-19 vaccines are not U.S. Food and Drug Administration-approved, but authorized only for emergency use. As an investigational product, the statute governing emergency use authorizations provides that the recipient be advised of his or her option to accept or refuse administration of the vaccine, something a DC District court considered in a 2003 case that ruled against forcing soldiers to take the then-experimental anthrax vaccine (suspiciously, the vaccine was deemed “safe” not long after the court enjoined mandatory vaccination, although there are numerous claims that the anthrax vaccination program has led to debilitating side effects).
President Trump’s Operation Warp Speed vaccine development program was unprecedented. It normally takes several years for FDA approval of a vaccine and several phases like an exploratory stage, clinical trials, and quality control. While many are comfortable taking the vaccine now, others may wish to wait, or decline altogether.
Some had the disease and survived it with antibodies. Some have physical limitations that do not allow inoculation, and others have religious and moral objections. For example, the Johnson and Johnson vaccine was developed using a retinal cell line developed from an electively aborted fetus in 1985.
A Right to Be Left Alone
We have a constitutionally implied fundamental right to privacy; various guarantees in the Bill of Rights “have penumbras, formed by emanations from those guarantees that help give them life and substance…creat[ing] “zones of privacy.” Griswold v. Connecticut, 381 U.S. 479, 484 (1965). The right to privacy encompasses everything from what we do in the privacy of our own bedrooms, to how we educate our children, and to what we choose to insert into our bodies.
The right to privacy also incorporates a right to be left alone, a concept dating as far back as an 1890 Harvard Law Review Article by Samuel Warren and Louis Brandeis, in which they noted that our laws are universal and eternal, “grow[ing] to meet the new demands of society.” As time passed, “[g]radually the scope of  legal rights broadened; and now the right to life has come to mean the right to enjoy life, — the right to be let alone; the right to liberty secures the exercise of extensive civil privileges…”
Being forced to carry sensitive personal health information on apps is highly problematic from a privacy standpoint. New York recently launched the Excelsior Pass, the first state-administered digital health app, touting that the app is encrypted and voluntary. But can one really be sure of such a state “promise” coming from a state governor alleged to have lied about sending COVID-19 positive persons into nursing homes?
One can only hope that New York would heed the warning of those concerned with privacy and overreach for Excelsior, but like the doomed poet in Henry Wadsworth’s title by the same name, it is unlikely. What’s more likely is that an elite fixated upon separating the “good” vaccine takers from the “bad” vaccine skeptics will use forced health-care data disclosure to engineer a form of vaccination apartheid affecting every aspect of our freedoms in society.
COVID-19 passports would also exacerbate the digital divide between classes; those with access to technology and those without. Such digital discrimination should be decried by our friends on the left who are so concerned about equality.
Even the World Health Organization resists a COVID-19 vaccination passport, saying that “At the present time, do not introduce requirements of proof of vaccination or immunity for international travel as a condition of entry as there are still critical unknowns regarding the efficacy of vaccination in reducing transmission and limited availability of vaccines. Proof of vaccination should not exempt international travelers from complying with other travel risk reduction measures.”
And what of HIPAA? The Health Insurance Portability and Accountability Act applies to “covered entities” such as health-care providers, health-care clearinghouses, or other organizations that would be involved in the transmission of protected health information, or PHI. Covered entities cannot share your information — but you can.
While there is an argument that HIPAA is not necessarily violated because a vaccine passport, or a COVID-19 QR code, would be provided to you, and it is up to you to freely share with others at your discretion, can a legitimate argument truly be made that a COVID-19 passport is voluntary when refusal to provide one’s vaccination status prohibits a person from exercising basic rights like traveling, for example?
My Body, My Choice
A police officer is allowed to stop a person based on reasonable suspicion that a person involved in a crime, using “specific and articulable facts” and not merely upon an officer’s hunch. In 2013, there was much controversy that New York was using stop and frisk to racially profile people, stopping many black men for no articulable reason.
Several years ago an Arizona law was decried nationally (and challenged) for mandating that persons suspected of being in the U.S. illegally were required to show proof of citizenship. And we’ve been hearing for years that asking for identification to vote is voter suppression and racist.
Now, faster than you can say “my body, my choice,” Americans are supposed to accept that the government, private employers, and businesses such as airlines and Costco may stop you and demand that you show your COVID-19 papers? Where are the civil libertarians? The privacy proponents?
Another straw man argument trotted out by the left to justify vaccines is that they are required for children’s admission to public schools. Yet no school in America requires an experimental, barely tested vaccine as a condition to entry. Even if it did, parents have a choice not to send their children to public schools.
We are talking about adults making individual choices, and those choices must include the privacy of medical decisions made by families. We are on track to achieve herd immunity in our country within months through voluntary vaccination, so the gleeful rush to force vaccination passports and public displays on us must be about something other than public health.
COVID-19 passports are government surveillance on steroids. COVID-19 has seen courts sanction unprecedented abrogation of our fundamental civil rights, in some ways that may leave permanent scars. September 11, 2001 led to the PATRIOT Act, which in retrospect a growing number of constitutional conservatives now decry, for its expansions have been monstrous.
Americans should not so lightly give up their liberty for commercial expediency, elite orthodoxy, or even illusory notions of safety. If we do, what downward ratchet on liberty will the next crisis bring?