By Rich DiPentima

Dear Editor:

This week,  Attorney General John Formella announced that New Hampshire would join 9 other Republican controlled states in their lawsuit to overturn the Biden Administration’s COVID-19 vaccine mandate on all federal contractors and contracted employees. 

This is another in a long line of myopic, dangerous and reckless actions taken by Republicans to undermine our efforts to end the worst public health crisis in our history.  Considering the makeup of the current Supreme Court, with 5 extreme right wing Justices, including 3 Trump appointees, I would be very surprised if they do not decide in favor of the Plaintiffs.  If they do, it would overturn the 1905 Jacobsen vs. Massachusetts decision that held that the Massachusetts smallpox vaccination mandate did not violate the Constitution.   This important legal precedent has served the public health well for over 116 years, but is now in serious jeopardy.  If the Court does rule in favor of the Plaintiffs it will have serious and even catastrophic short and long-term consequences. 

In the short-term it will result in fewer people getting vaccinated, thus prolonging the pandemic, resulting in more preventable COVID-19 cases, hospitalizations and deaths,  It will prolong the education disruption of our children as well as hurting business and our economy. since vaccine mandates by the government at every level would be “unconstitutional.”  The fact that the Biden mandate is working, with more people getting vaccinated and the number of COVID vaccination has increased 20% (Reuters) across the nation, I suspect will have little bearing on the 5 right-wing justices.

However, even more concerning are the long-term consequences of a decision in favor of the Plaintiffs.  If the Court decides that the Biden vaccine mandate is “unconstitutional, that decision will not only hamper the public health response to the current pandemic, but would apply to any local, state, or national epidemic or pandemic in the future.  As horrible as the COVID-19 pandemic has been, with 46 million cases, and 745,000 deaths with a Case Fatality Rate (CFR) of about 1%, the next pandemic could be magnitudes worse.  Imagine a pandemic where the agent is much more lethal, less discriminating in who it kills and even more transmissible, with a CFR of 5, 10 or even 20 percent, imagine that agent killing children and young adults at the same rate as the elderly, unlike the current pandemic where children and young adults have been spared the brunt of the mortality.  And imagine that a safe and effective vaccine is developed, but no government could mandate vaccination because of a misguided decision the Supreme Court sometime in the past.  How many deaths would result before a new Court is able to reverse that decision?  

Another possible consequence of a decision in favor of the Plaintiffs, could be the end to all public school-based vaccination requirements.   If the decision states that the government cannot impose vaccine mandates on contractors and contract employees, why would they be allowed to have school vaccination mandates? Afterall, the rationale for school vaccination mandates is the same as the Biden mandate on contractors. The anti-vaccine movement would move quickly to use this decision to end all public school vaccine mandates. Some will say that I am being much too dramatic and pessimistic, I hope so.  But how many of them had ever considered being in the situation we are in today?

The advancement of political ideology and political self-interest can result in catastrophic consequences when they are placed over the interests of and conflict with that of public health.  No society can successfully combat an enemy, either human or biological, when the “rights” of the individual are placed above the rights of the greater community.

Rich DiPentima, 

Portsmouth, NH

DiPentima follow-up letter

Yesterday I forwarded a letter to the Editor for your information.  I left out one very important issue for you to consider as you pursue your legal challenge to the Biden vaccination mandates.  

After 9/11 we were greatly concerned about the threat of bioterrorism.  I was deeply involved in that issue as Deputy Public Health Director for the Manchester Health Dept.  Specific concerns were about the use of anthrax and smallpox virus as possible bioterrorism agents.  A great deal of effort and energy was spent setting up post exposure antibiotic systems for postal workers possibly exposed to anthrax.  We also were very involved in vaccinating first responders, military and others for smallpox.  These threats were real, and they remain just as real today.  We still have great concern regarding the security of the smallpox still held in the former Soviet Union, probably in Russia.  Since the eradication of wild smallpox, universal vaccination ended in the 1980’s, as such most of the world is susceptible to smallpox if it was introduced via bioterrorism.  In such an event vaccination of our population would be critical, and it would need to happen very quickly, and it would require most of the population to be vaccinated.  Smallpox is a very deadly disease, with a case fatality rate of 30%, much higher than the 1% with COVID-19.  Consider the complications of trying to respond to such an event if there was a constitutional prohibition against governmental vaccination mandates. And rest assured, mandates would be necessary. This would add considerable time to get the court to reverse direction and to assure that at least 85% of the population was vaccinated.  This would mean many more cases, many more deaths and a total disruption of our entire society, economy and security.

For this reason, as well as the others stated in my letter, I urge you to reconsider New Hampshire participation in the legal challenge to the vaccination mandates.  I would not want New Hampshire’s name to be associated with such a misguided action when we are faced with another public health emergency even worse than COVID-19.