Both the House Health and Human Services (HHS) and Education Committees approved a bill preventing K-12 schools from requiring the COVID-19 vaccine for attendance. HB2086 passed narrowly along party lines: 5-4 in the former, 6-4 in the latter.
State Representative Joanne Osborne (R-Goodyear) insisted during the Education Committee hearing on Tuesday that this bill safeguards parental rights. Osborne relayed how she heard that some high schools were considering masking mandates for student athletes.
“Some may ask why is this necessary now? It’s not being mandated. I want to make sure it stays that way,” said Osborne. “I’m not a health physician, but I am a parent. I am speaking up because this is not a childhood disease. I’m not an anti-vaxxer, but I am going to say to parents: talk to your doctors about this.”
Osborne clarified that she wasn’t opposed to vaccination requirements for other diseases, because traditional vaccinations have been established for their safety and efficacy for years.
State Representative Lupe Diaz (R-Hereford) said the vaccination requirement reminded him of China’s social credit system, and insisted that vaccination requirements for participation in public systems was tantamount to weaponization.
State Representative John Fillmore (R-Apache Junction) noted that this was only a “tiny step toward freedom.”
As a rebuttal to the logic of the bill, State Representative Judy Schwiebert (D-Phoenix) said that broad vaccine exemptions are already in place, calling the bill “redundant.” State Representative Daniel Hernandez (D-Tucson) added onto Schwiebert’s argument, arguing that Arizona already has strong parental choice laws in other regards, such as school choice.
During the HHS Committee meeting last week, State Representative Melody Hernandez (D-Tempe) said that forcing quarantine for healthy students who aren’t sick is important to keep everyone around the children safe. Hernandez claimed that the opt-out process was sufficient for parental choice.
However, Heather Rooks, a mother of four, pointed out during the Education Committee that even with religious or medical exemptions, unvaccinated students may be forcibly quarantined with an outbreak, which the state defines as two or more cases. Committee policy aides verified that this was correct.
State Representative Beverly Pingerelli (R-Peoria), a Peoria Unified School District (PUSD) governing board member, declared that children had suffered too much already.
The recent US Supreme Court decisions around mask mandates have understandably generated a great deal of media coverage and comment. Many conservatives have praised the Supreme Court’s decision to affirm the stay on the nationwide OSHA vaccine mandate. But as a lifelong prosecutor and judge, I can assure you the true and most significant factor has been overlooked. Specifically, based on the Court’s decision to vacate the stay regarding the vaccine mandate for healthcare workers (the “CMS Mandate”), the President, with no constitutional or legal authority, has been allowed to order ten million healthcare workers to receive a vaccine or risk losing their jobs and their livelihood. And while state legislatures, exercising their police powers, have imposed vaccine requirements on healthcare workers in the past, no President has imposed a nationwide mandate involving such a permanent, personal healthcare decision. Simply put, as Judge Sutton recently stated in In re MCP No. 165, unlike masks or gloves, “vaccines cannot be removed at the end of the shift.”
The underlying legal justification for overturning mask mandates on businesses is the same legal basis that should have driven a decision to roll back a mask mandate for our health care workers. In both the OSHA and the CMS cases, the issue was not whether vaccines were a wise or effective measure against the spread of COVID-19. Rather, the issue was simply whether the President has the constitutional authority, through executive branch administrative agencies, to impose nationwide vaccine mandates. In the OSHA case, the Court held, by a vote of 6-3, that because Congress never clearly delegated such authority to the President, he lacked the authority to impose such a mandate. However, in the CMS case, Justices Roberts and Kavanaugh switched their votes on the grounds that Congress had delegated such authority to the President based on a hodge-podge of Social Security statutes. But these statutes provide no such authority. Indeed, the purported delegation for the CMS mandate was less clear and more strained than the statutes offered to justify the OSHA mandate. So, what explains the puzzling switch of two purportedly conservative Justices on essentially the same issue?
It is difficult to avoid the conclusion that Roberts and Kavanaugh, at least at some level, sought to appease the public’s concern over COVID. Thus, in effort to “soften” the public’s reaction to the OSHA decision, they justified the switch by relying on the purportedly stronger policy arguments for mandating vaccines for healthcare workers to protect hospital patients from COVID. But while politics and the will of the public has rightfully driven decision-making in our Executive and Legislative branches of government, our Judiciary was set up by our Founding Fathers to make judgements based on the law and precedent. The Supreme Court does not have the authority to determine whether vaccine mandates are good policy, nor may the Court violate the Constitution in the interests of promoting political harmony or the popularity of the Court. As Justice Scalia once stated, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
With these recent decisions around mask mandates, Justices Roberts and Kavanaugh have dangerously broken through that critical differentiation, opening the Court up to the influence of the day’s ever-changing political environment. Judges must have the courage and resolve to enforce the Constitution, even when the results may be unpopular. It may appease some that the OSHA stay was upheld, but it was denied for healthcare workers. But either way, the result is the same: a precedent has been set by the Court allowing the President to use any crisis labelled a “medical emergency” to expand his power. The consequences of this decision will inflict grave damage to the rule of law. As Justice Jackson stated in his dissent in Korematsu v. United States, when the Court permits another branch to set aside constitutional protections to address emergencies, such decisions lie “about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
Of course, looming in the background is the Supreme Court’s pending abortion decision in Dobbs v. Jackson Women’s Health Organization. There are sound legal grounds set forth in Dobbs for modifying, if not overruling Roe v. Wade, and allowing the legislative branch to decide the abortion issue. But mark my words, the Supreme Court, led by Justices Roberts and Kavanaugh, will land on a more muddled, middle of the road, politically crafted decision that attempts to please everyone. They have shown their hand in the CMS case.
Andrew W. Gould was appointed as a Justice to the Arizona Supreme Court in 2017 after serving 5 years on Division One of the Arizona Court of Appeals. He retired from the Supreme Court in March 2021. Prior to his appointment to the Court of Appeals, Justice Gould spent 11 years as a Judge of the Superior Court in Yuma County, where he served as both Associate Presiding Judge and Presiding Judge.
Andrew received his J.D. from Northwestern University School of Law in 1990. He began his legal career in Phoenix, Arizona, practicing in the field of civil litigation. In 1994, he became a Deputy County Attorney, prosecuting major criminal cases for Yuma and Maricopa Counties. He served as Chief Civil Deputy for the Yuma County Attorney’s Office from 1999-2001. Justice Gould has previously served on the Arizona Supreme Court Commission on Technology, as the President of the Arizona Judges’ Association, and has taught at the Judicial Conference and New Judge Orientations.
Last month, State Senator Kelly Townsend (R-Mesa) requested Attorney General Mark Brnovich investigate Pima County for denying reasonable accommodations for religious beliefs conflicting with their COVID-19 vaccination requirement. At this point in the investigation, Townsend has requested Pima County employees to file complaints to the civil rights division of the attorney general’s office.
The county requires current and future employees to get vaccinated. However, the county must abide by A.R.S. § 23-206 which requires reasonable accommodations for religious beliefs.
“If an employer receives notice from an employee that the employee’s sincerely held religious beliefs, practices or observances prevent the employee from taking the COVID-19 vaccination, the employer shall provide a reasonable accommodation unless the accommodation would pose an undue hardship and more than a de minimus cost to the operation of the employer’s business,” read the statute.
Pima County contended that the law poses an undue hardship. In a statement released Thursday, Townsend asserted that Pima County’s allegations of undue hardship conflicted with their previous two years of mitigations without a vaccine.
“[T]he County alleges that it cannot provide reasonable accommodations in certain situations due to the hardship it would cause them, even though employers have successfully adjusted to accommodate COVID-19 in the workplace for nearly two years,” stated Townsend. “I am confident the attorney general will continue to investigate, and where appropriate prosecute, instances of personal freedom infringement across Arizona, including in Pima County.
Townsend promised further that she would continue to fight for individuals to make their own medical decisions.
Late last month, Brnovich responded to another request from Townsend concerning another COVID-19 topic: forced quaratines of K-12 students. Brnovich issued an opinion declaring that students had a right to legal counsel in the event that their school required them to quarantine for COVID-19 exposure.
In September, another one of Townsend’s inquiries to Brnovich on the legality of COVID-19 response measures prompted action from the city of Tucson. After Brnovich opined that the city acted unlawfully when it handed down five days unpaid suspension to unvaccinated employees, the city halted its vaccine mandate.
Within a week, the CDC changed its guidelines to halve the quarantining recommendation from 10 days to five. As AZ Free News reported, the changes came after a request letter to the CDC from Delta Airlines CEO Ed Bastian.
Tuesday, the Pima County Attorney’s Office announced it would no longer charge individuals for simple drug possession, paraphernalia, or related personal-use incidents. The policy won’t apply to those arrested for simple possession and a felony offense.
Pima County Attorney Laura Conover said in a memo to law enforcement that low vaccination rates forced her hand in deciding to decline prosecution of more minimal drug charges.
“A sizable percentage of [society] has expressed disinterest in the vaccine, depriving us of the herd immunity that would have put this virus behind us,” said Conover. “COVID is now spreading inside the jail, putting people there at risk. The health and safety of our community are paramount.”
Conover’s policy mirrored that established by her predecessor, Barbara LaWall, in March 2020. Conover explained she lifted LaWall’s policy after the vaccine became widely available and the county established the nation’s first pre-charge drug court, STEPs. Conover urged law enforcement to deflect offenders to drug treatment, like CODAC.
One of Conover’s biggest goals has been to stop prosecuting the “poor, sick, and addicted.” Part of that includes getting rid of cash bail. When she assumed office in January, Conover instructed her prosecutors to not ask for cash bail, and limited certain deportations.
In August, Conover told KOLD that she wanted to abolish cash bail entirely. That’s something she also claimed had a negative impact on the COVID-19 pandemic.
“You can’t have so many people packed into a space because it’s a huge public health problem for people who are brought into the jail for corrections officers and other professionals,” said Conover.
That same month, the Tucson City Court released without bond a man arrested for shooting at an officer. Previous Tucson Police Chief Chris Magnus criticized the decision in a now-deleted Twitter account; Conover wouldn’t comment on the specifics of the case, but said that the man should’ve received bond because he posed a threat to the community.
Earlier this month, Magnus was appointed as the new head of Customs and Border Protection. Officer Chad Kasmer was appointed as Tucson’s new police chief.
Conover’s progressive perspective on criminal justice reform earned the support of a number of noteworthy left-wing activists, like Planned Parenthood Advocates of Arizona and John Legend.
Similar or identical progressive reforms were first championed by Milwaukee District Attorney John Chisholm. His reforms led to the release of Darrell Brooks, the man behind the Waukesha Christmas parade massacre. According to the MacIver Institute, of over 900 individuals given deferred prosecution agreements under Chisholm’s tenure, 30 percent went on to commit more crimes, fail to appear in court, or fail to follow court-ordered requirements.
Since assuming office, Conover’s office has experienced massive staff turnover rates.
Governor Doug Ducey carved out an exemption for hospitals in his renewed executive order addressing COVID-19 vaccine mandates (EO 2021-21), though it banned the state and all counties, cities, and towns from implementing any. Additionally, Ducey issued hospitals $35.2 million in grants to aid in staffing shortages. The $35.2 million meted out to $1.2 million in dialysis center support to Valleywise Health, $6 million for more beds, and $28 million to extend around 300 nursing staff contracts.
According to campaign finance records, Arizona’s hospitals did greatly support Ducey during both of his gubernatorial campaigns: Tenet Healthcare, West Valley Hospital, Carondelet Health, Honor Health, Maricopa Integrated Health System (now Valleywise Health), Banner Health, Dignity Health, and Yuma Regional Medical Center.
Health insurance giants also supported Ducey during his two campaigns: UnitedHealth, WellCare Health Plans, Cigna, and Blue Cross Blue Shield.
Makers and distributors of the COVID-19 vaccine had Ducey’s back as well: Pfizer and McKesson donated thousands to Ducey’s campaigns respectively. McKesson is a major distributor of the COVID-19 vaccine, and Ducey’s special advisor on vaccination efforts, Dr. Richard Carmona, was one of the latest additions to the distributor’s board. Carmona was appointed to the board about two weeks after Ducey announced him as an advisor to the state.
12 News reported Carmona receives approximately $400 an hour from the state to promote the vaccine through Arizona Department of Health Services (ADHS). For about two collective weeks of work, Carmona has earned over $35,000. ADHS spokespersons confirmed that Carmon will remain in his advisory role past the December 31 contract end date — possibly through 2022.
The Arizona Hospital and Healthcare Association (AHA) thanked Ducey for this decision to reaffirm their mandating abilities. The AHA and its former president supported Ducey during both his runs for governor with thousands in donations.
The funds follow $60 million allocated in September to aid in health care facility staffing for administering treatments to decrease COVID-19 hospitalizations.
Arizona, like many other states, is facing a nursing shortage; their number determines the number of beds available for patients. Earlier this month, ADHS asked the Federal Emergency Management Agency (FEMA) for staff who can aid in monoclonal antibody treatments at Banner Health, Carondelet St. Joseph’s Hospital, Banner Health Plus, Banner Estrella Medical Center, Valleywise Health Medical Center, Dignity Health Arizona General Hospital, and Abrazo Central Campus, as well as emergency support at Yuma Regional Medical Center and Canyon Vista Medical Center.
ADHS confirmed the first case of the Omicron variant of COVID-19 last week in Yavapai County.