These are state cases. They have no precedence in ny.
You are not making any sense.
A government act which “impinges upon a fundamental right explicitly or implicitly secured by the Constitution [it] is presumptively unconstitutional.” See: Harris v. McRae United States Supreme Court (1980) Also see City of Mobile v. Bolden, 466 U.S. 55, 76, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980)
Today, when a fundamental right is impinged upon by a government act ___ which most certainly is the case with a forced medical treatment, see Rivers v. Katz (67 N.Y.2d 485) 1986, and Washington v. Harper, 494 U.S. 210, 229 (1990) ___ the act, to pass constitutional muster, must be judged under the strict scrutiny test:
(A) be narrowly tailored to achieve the government’s purpose,
(B) the purpose must be clearly defined and be based upon scientific and logical reasoning,
(C) and, it must use the least restrictive means to achieve the government’s stated purpose.
JWK
The post i cited included Florida court cases. They have no precedence in ny. How would you like me to explain it to you?
Possibly but they can’t be used for precedence by the teacher union. They are relevant only because you agree with them
“Precedence” has nothing to do with the fundamental rights of American citizens. When such rights are impinged upon by a government act, the protection of “strict scrutiny” comes into play.
With regard to New York, see: Rivers v. Katz (67 N.Y.2d 485) 1986, a New York State Court of Appeals decision, to establish a fundamental right is being infringed upon by the NYC vaccine mandate. In the case the Court stated:
”In Storar, we recognized that a patient’s right to determine the course of his medical treatment was paramount to what might otherwise be the doctor’s obligation to provide medical care, and that the right of a competent adult to refuse medical treatment must be honored, even though the recommended treatment may be beneficial or even necessary to preserve the patient’s life. This fundamental common-law right is coextensive with the patient’s liberty interest protected by the due process clause of our State Constitution.
In our system of a free government, where notions of individual autonomy and free choice are cherished, it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to insure that the greatest possible protection is accorded his autonomy and freedom from unwanted interference with the furtherance of his own…”
JWK
Then why did you base your entire op on case law. If precedence is not relevant?
You are the one bringing up “precedence”, and apparently do so as a distraction. Are you suggesting the NYC vaccine mandate does not impinge upon a fundamental right?
JWK
Your entire op is based in precedence. You cited case law. Do you want me to quote it?
And i am very happy that you guys are ok with balancing of equities aka strict scrutiny format of deciding violation of rights.
Mmm mmmm mmm abortion
So, once again you bring up “precedence” as a distraction from the fact that the NYC vaccine mandate impinges upon NYC teachers’ fundamental rights, and is therefore “presumptively unconstitutional”. Nowhere in the OP did I mention “precedence”.
My question to you was, Are you suggesting the NYC vaccine mandate does not impinge upon a fundamental right?
JWK
Well, if appears a basic question concerning NYC’s vaccine mandate goes unanswered; Does the NYC vaccine mandate impinge upon any fundamental right of NYC’s teachers?
JWK
Let us apply the rule of law to NYC’s vaccine mandate for teachers
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Recently, NYC healthcare workers were granted an injunction protecting them from the NYC’s vaccine mandate.
The facts are:
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The Plaintiffs’ asserted a constitutionally protected right was being infringed upon by the NYC vaccine mandate.
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That such an infringement is subject to review by the court under the protection of the “strict scrutiny” standard.
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And, that the court, after reviewing the case, did in fact find the plaintiffs established the vaccine mandate being forced upon them was “likely to fail strict scrutiny” and why the injunction was granted.
Here is the Court’s MEMORANDUM-DECISION and ORDER granting the injunction to the NYC healthcare workers who petitioned the Court.
So, now we turn to the following question:
Are NYC teachers having their liberty, medical privacy and autonomy infringed upon by the COVID vaccine mandate? If the answer is yes, then the protection of strict scrutiny must be applied by the court.
And what has the New York State Court of Appeals stated with reference to the peoples’ medical privacy, autonomy, and free choice in such matters?
See: Rivers v. Katz (67 N.Y.2d 485) 1986:
” In Storar, we recognized that a patient’s right to determine the course of his medical treatment was paramount to what might otherwise be the doctor’s obligation to provide medical care, and that the right of a competent adult to refuse medical treatment must be honored, even though the recommended treatment may be beneficial or even necessary to preserve the patient’s life. This fundamental common-law right is coextensive with the patient’s liberty interest protected by the due process clause of our State Constitution.
In our system of a free government, where notions of individual autonomy and free choice are cherished, it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to insure that the greatest possible protection is accorded his autonomy and freedom from unwanted interference with the furtherance of his own… ”
And what has our United States Supreme Court stated with reference to forced medical treatment? See: Washington v. Harper, 494 U.S. 210, 229 (1990) “The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty."
So, shouldn’t the rule of law be applied to NYC’s vaccine mandate which infringes upon a fundamental right of NYC teachers?
Do they not deserve the protection of “strict scrutiny” which, if applied by the court, may not only accommodate NYC’s use of the vaccine in their public school setting, but also accommodate the rights of NYC’s public school teachers, e.g., the use of N95 masks by teachers: a temperature check upon entry to a school, periodic testing for the COVID virus, social distancing, and other such common sense measures which could be narrowly tailored by the Court to provide protection while preserving the rights of NYC teachers?
JWK
“If the Constitution was ratified under the belief, sedulously propagated on all sides that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?”___ Justice Story
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Well, isn’t this interesting? Our COVID vaccine mandate jabbers are suspiciously silent when it comes to applying the rule of law to their love affair with government mandated COVID vaccinations.
JWK
" I believe that there are more instances of the abridgement of the freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations." ___ Madison Elliot`s Debates, vol. III, page 87
St. Lukes Hospital employees with natural immunity exempted from mandated COVID jab!
See: St. Luke’s, LVHN employees with natural COVID immunity can defer vaccine for a year
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“Both of the major health networks in the Lehigh Valley have COVID-19 vaccine mandates in place for employees, but if any employee contracted COVID-19 themselves, they are allowed to defer getting the vaccine for up to 12 months.”
I am very suspicious as to why the NYC teachers union lawyers neglected to seek this relief in court for the teachers they supposedly were representing.
For some reason my gut tells me they have sold out NYC teachers and are carrying water for NYC government COVID vaccine jabbers.
JWK
Judge Ann Aiken uses outdated S.C. Ruling to deny strict scrutiny protection in Oregon vaccine mandate case.
In the court’s Opinion and Order we find the following by Judge Ann Aiken:
"Plaintiffs contend that the vaccine mandates implicate a fundamental right to bodily integrity and privacy and that strict scrutiny should apply.
“As the Seventh Circuit recently noted, “such an argument depends on the existence of a fundamental right ingrained in the American legal tradition.”
“Plaintiffs’ argument was foreclosed more than a century ago by Jacobson v. Massachusetts, 197 U.S. 11 (1905), in which the Supreme Court sustained a criminal conviction for refusing to be vaccinated."
What Judge Aiken seems to intentionally ignore is, JACOBSON v COM. OF MASSACHUSETTS was decided decades before our judicial system adopted the strict scrutiny standard to protect American citizens whenever a government action infringes upon a fundamental right.
How on earth can Judge Aiken truthfully assert the “Plaintiffs’ argument was foreclosed more than a century ago by Jacobson v. Massachusetts, 197 U.S. 11 (1905)”, which is prior to our judicial system having adopted the protection of “strict scrutiny”?
The unavoidable truth is, JACOBSON is outdated and irrelevant with respect to today’s circumstances. An abundance of case law today commands that whenever a fundamental right of American citizens is infringed upon by a government act, and the right is claimed to be infringed upon, the act is to be viewed as being “presumptively unconstitutional” and to resolve the issue, the protection of strict scrutiny kicks in.
Heck, even in JACOBSON which Judge Aiken references, the court confirms: “If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force…”
Perhaps judge Aiken was really asserting the Plaintiffs’ medical privacy, decisions, choices’, and autonomy is not within that bundle of rights which American citizens have long held to be fundamental, and if infringed upon by a government act, do not deserve the protection of strict scrutiny? If so, she ought to have explained what our Supreme Court was saying in Washington v. Harper, 494 U.S. 210, 229 (1990)? “The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty."
And with regard to the meaning of a force with respect to a government mandated vaccination, our Supreme Court, in Shapiro v. Thompson, 394 U.S. 618 summarized that the mere chilling of a Constitutional right by a penalty on its exercise is patently unconstitutional.
Government objectives ". . . cannot be pursued by means that needlessly chill the exercise of basic constitutional rights. Cf. United States v. Robel, 389 U.S. 258 ; Shelton v. Tucker, 364 U.S. 479, 488 -489. The question is not whether the chilling effect is “incidental” rather than intentional; the question is whether that effect is unnecessary and therefore excessive . . .UNITED STATES v. JACKSON.
And now, let us keep in mind the protection of strict scrutiny is not meant to prohibit a government act, which in this case is asserted to be necessary in promoting the general welfare of the people. Instead, the protection of strict scrutiny is there to insure the act of government:
(A) be narrowly tailored to achieve the government’s purpose,
(B) the purpose must be clearly defined and be based upon scientific and logical reasoning,
(C) and, it must use the least restrictive means to achieve the government’s stated purpose.
Our judicial system needs to stop abdicating its duty and start protecting our police, firefighters, and teachers, and afford them the protection of strict scrutiny which they are indeed entitled to under our system of law.
Is our judicial system so inept that it is incapable to apply “strict scrutiny” in a manner which allows the use of vaccination in furthering the general welfare, while at the same time accommodating the rights of public employees? For example, requiring the use of N95 masks in appropriate situations; having a daily temperature check of employees when showing up for work; periodic testing for the COVID virus; social distancing; providing an exemption for those with natural immunity, and/or those who are resistant to the vaccination, but hold them to the above precautionary methods; and other such common sense measures which could be narrowly tailored by the Court to promote the general welfare of all, while likewise preserving the rights of government employees.
Is not time for our Supreme Court to step in and end the divide among our citizens, and work to accommodate all in such troubled and contentious times?
JWK
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Well, this is interesting. No one in the forum has come to the defense of Judge Ann Aiken’s erroneous as well as dishonest assertion about strict scrutiny, that, “Plaintiffs’ argument was foreclosed more than a century ago by Jacobson v. Massachusetts, 197 U.S. 11 (1905) . . . “
JWK
We shall see what happens on appeal.
Methinks there will be another erroreous opinion upcoming.
Allan
Did I not predict the outcome.
Allan (making correct predictions on the forum since 2002)
rove still indicted?
Win some lose some.
Allan
