It is not a personal health decision when the failure to protect oneself endangers the lives of everyone.
Like many Americans, I have been pondering how we could best end the pandemic of Covid-19 in the U.S. and in Texas. Most Republican governors and some Democratic ones are relying on a belief in personal responsibility — leave the decision to each individual to get vaccinated, wear a mask in public, and physically distance. After all, this reasoning goes, these measures are personal health decisions, not ones to be made by someone else.
But they are not personal health decisions when the failure to protect oneself endangers the lives of everyone. We are in a public health emergency that requires government intervention to protect the health and welfare of all. The 1918-19 flu epidemic is comparable to the Covid-19 pandemic. According to the CDC, that flu epidemic took the lives of 675,000 people in the U.S., and resulted in 50 million deaths worldwide. Mutations of that influenza pandemic continue to cause the yearly flu for which many receive annual vaccinations.
The people of North America have suffered epidemics of small pox, yellow fever, cholera, flu, scarlet fever, pertussis (whooping cough), measles, polio, and HIV/AIDS. But no other epidemic has seen the development of a vaccine as rapidly as the Covid-19 vaccines supported by former President Trump and his health secretary Alex Azar. In fact, the Tump/Azar vaccines have been remarkably effective in limiting hospitalizations and reducing death. The irony of their development is that the greatest resistance to inoculation by the Trump/Azar vaccines seems to be from Trump supporters (with a few anti-vaxxers, as well).
Gov. Abbott’s epidemic decisions
One major obstacle to widespread reduction of Covid-19 in Texas has been the interference of Gov. Greg Abbott, who has prohibited “any government entities receiving state funds, including counties, cities, school districts, public health authorities and government officials” from taking sensible actions to tamp out this pandemic He also declared that there be “no covid-19-related operating limits for any business or other establishment” in the state. Clearly, Gov. Abbott does not believe in protecting the public health from epidemics if that protection might affect the Texas economy. When it comes to business in Texas, Gov. Abbott supports the selling of consumer products over the lives of our residents. The people are more expendable than the profits that allow business owners to keep contributing to his campaigns.
Abbott’s orders obstruct responsible Texas entities from taking decisive actions to protect the public health.
Gov. Abbott issued strong regulations to protect the public health in spring 2020, before we had the Trump/Azar vaccines. But now his orders obstruct responsible Texas entities from taking decisive actions to protect the public health.
For his authority to prevent other entities from protecting the public health, Gov. Abbott relies on The Texas Disaster Act of 1975 (TDA) found in the Texas Government Code, chapter 418 , which authorizes exceptional powers for the Governor of Texas when there is a disaster.
The TDA defines “Disaster” as “the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause, including . . . epidemic, . . . [or] other public calamity requiring emergency action . . .” [Emphasis added.]
The TDA provides that “The governor is responsible for meeting: (1) the dangers to the state and people presented by disasters . . .”
In statutory construction, when a common word is used and not given a special definition, it has to be understood using its normal and customary meaning. Merriam-Webster defines “meet” in several ways, two of which are relevant to understanding its meaning in this Act based on its context. The word may mean “to oppose” or “to cope with.”
The TDA further allows the governor to “issue executive orders, proclamations, and regulations and amend or rescind them. Executive orders, proclamations, and regulations have the force and effect of law.”
I find no authority for the Governor to issue orders that increase the danger to the people.
However, I am unable to find any authority in the TDA for the Governor to issue orders that increase the danger to the people, which is what his inaction and denial of efforts by other entities will accomplish. Such orders do not oppose or cope with this epidemic. They do just the opposite. They allow this epidemic to increase and spread, killing more people and making life miserable for countless others, without ameliorating their suffering in any way.
His Executive Order GA 36, issued on May 18, 2021, purporting to be an exercise of authority under the TDA, prohibits government agencies, jurisdictions, and businesses from continuing to respond to the Covid-19 epidemic by requiring mask-wearing or imposing limitations on activities and behaviors. The Executive Order appears to be extra-legal and beyond the powers of the Governor because it is not premised on “meeting” the disaster that is the Covid-19 epidemic, but instead runs away from that responsibility by limiting the response of various jurisdictions in the state to the epidemic, a power not authorized by the TDA. The law is intended to ameliorate epidemics, not enhance their spread.
In short, the Governor of Texas does not have the authority to act under the TDA to limit the responses to the epidemic by jurisdictions in Texas if those responses would not interfere with the state’s actions, and at the present time there are essentially no state actions to overcome or ameliorate the affects of the Covid-19 epidemic. All jurisdictions in Texas should have the authority to control their own responses in their jurisdictions to the continuing disaster caused by the Covid-19 epidemic.
The rumble of resistance to Gov. Abbott’s edict
The facts are stark: 30% of the U.S. adult population has not gotten a Covid-19 vaccination. As of August 7, the vaccination rate for Texas is 44.5% of our total population. (No vaccine is yet available for those under the age of 12.) The rate for the entire country is 50.7%. Most epidemiologists believe, based on the efficacy of other vaccines, that we need a 70% to 80% rate of vaccination to diminish the Covid-19 epidemic. Without vaccine mandates from the government (with medical exceptions), we will not achieve that minimal threshold.
Several large school districts have decided to ignore the governor’s mask-wearing prohibition.
As Texas hospitals are once again being swamped by coronavirus patients (most of whom have not been vaccinated), several large school districts have decided to ignore the Governor’s mask-wearing prohibition, and smaller districts are considering such action. According to the Washington Post on August 14, there are increasing challenges to the governor’s extra-legal and reckless action in the courts:
In Texas, there have been several legal challenges seeking to block an executive order from Gov. Greg Abbott (R) banning mask mandates. Two courts have issued preliminary rulings putting the order on hold in cases that include schools as well as other public settings. A third suit, backed by eight school districts, mostly in the Rio Grande Valley, deals exclusively with schools. Large districts in Houston and Dallas have said they plan to ignore the state order and require masks.
Without a successful state-wide court decision (or multiple local court decisions), we are left relying on private businesses to ignore the Governor’s edicts and require vaccinations of their employees, face masks for all customers, and physical distancing of their customers and employees inside their buildings. There is evidence that some businesses in the country are rising to the occasion.
A cocktail bar with live jazz in downtown San Francisco began in July to require proof of vaccination for all its staff, customers, and visiting musicians. Shortly thereafter, the 500-member San Francisco Bar Owner Alliance embraced the move after most of its members had endured 16 months of economic disaster resulting from the virus. We need to see such responsible action from Texas businesses.
Texas has experienced nearly 54,000 deaths from Covid-19.
Texas has experienced nearly 54,000 deaths from Covid-19; the U.S. deaths are at 618,000 and continuing to rise. If all adults, except for the tiny number of people with medical reasons not to be vaccinated, had received the shots by this past July 4, America would have been able to return to normal this fall. This is the view, also, of conservative writer David Frum, expressed in an article in The Atlantic:
In the United States, this pandemic could’ve been over by now, and certainly would’ve been by Labor Day. If the pace of vaccination through the summer had been anything like the pace in April and May, the country would be nearing herd immunity. With most adults immunized, new and more infectious coronavirus variants would have nowhere to spread. Life could return nearly to normal.
But this has not happened, and the epidemic will extend far into the next school year, further crippling businesses and families throughout the state.
‘Personal responsibility’ is a failed ideal in this epidemic
I absolutely support the right of individuals to decide what to do about their own health — what they eat, drink, smoke; what medical treatments they take or don’t take. The only exception to this support is actions that threaten the health of others, as is the case with this epidemic.
For those who won’t get vaccinated against this public health threat, there are several options for government action to protect the public health: require wearing masks in public and keeping a safe distance away from others, prohibit dining indoors in a restaurant (where masks can’t be worn while eating and drinking), and quarantine those who carry the virus but will not comply with these necessary requirements to protect the public health, just as is done with many other serious diseases.
Their minds have been poisoned by right-wing
politicians and pundits.
For seven months, we have tried to cajole every adult to get vaccinated. We have tried bribery to achieve their compliance with this public health measure. We have tried science, logic, and appeals to morality. For 30% of adults, none of these efforts have broken through to find their basic humanity because their minds have been poisoned by right-wing politicians and pundits, for whom truth has never been a value or is something conjured up using chicken bones, entrails, and other magic ingredients.
David Frum explains his view of the danger we are in:
Experts list many reasons for the vaccine slump, but one big reason stands out: vaccine resistance among conservative, evangelical, and rural Americans. Pro-Trump America has decided that vaccine refusal is a statement of identity and a test of loyalty. . . . Compassion should always be the first reaction to vaccine hesitation. Maybe some unvaccinated people have trouble getting time off work to deal with side effects, maybe they are disorganized, maybe they are just irrationally anxious. But there’s no getting around the truth that some considerable number of the unvaccinated are also behaving willfully and spitefully. Yes, they have been deceived and manipulated by garbage TV, toxic Facebook content, and craven or crazy politicians. But these are the same people who keep talking about “personal responsibility.” In the end, the unvaccinated person himself or herself has decided to inflict a preventable and unjustifiable harm upon family, friends, neighbors, community, country, and planet.
Unless more businesses and organizations require proof of vaccinations, require indoor masking of all patrons, and require physical distancing, there is little hope to end the scourge of this epidemic because in Texas we do not have political leaders who will take the necessary steps to protect the public health. Except for precipitating a nuclear war, I never used to imagine that the death of this country would come from political stupidity and incompetence, but that thought has begun to creep into my consciousness as too many of our fellow citizens reject science for unsupported conspiracy theories or their deranged political and religious ideas.
Abbott blamed ‘disease-infected migrants’ for the prevalence of the virus.
When the health and welfare of the entire population is at stake, relying on personal responsibility to respond to a virus that we now know can be defeated in a relatively short amount of time is an abomination. The actions of Gov. Abbott prohibiting vaccine and mask mandates were followed by his suggestion that hospitals suspend elective medical procedures so they would be able to handle the influx of new coronavirus cases (something hospitals did last year when cases surged out of control). Further, without any evidence, he blamed “disease-infected migrants” for the prevalence of the virus and ordered state troopers to target vehicles if troopers suspected they carried migrants who might be infected.
Now, hospitals all over Texas are being overwhelmed by Covid-19 cases and are preparing for a worse disaster than we faced a year ago. They are erecting tents to manage the expected overflow of coronavirus cases. The shortage of nurses and trained personnel only exacerbates the difficulties they face.
I remember Texas governors since the 1950s. None of them were as callous, mendacious, reckless, and hypocritical as Greg Abbott during their time in office. He is in some ways like one of T. S. Eliot’s “hollow men,” but one who does not recognize the sick condition of his being.
[Rag Blog columnist Lamar W. Hankins, a former San Marcos, Texas, City Attorney, is retired and volunteers with the Final Exit Network as an Associate Exit Guide and contributor to the Good Death Society Blog.