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Activists want anti-vaccine amendment in Ohio Constitution

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Activists want anti-vaccine amendment in Ohio Constitution

Jul 06, 2022 | 3:55 am ET
By Jake Zuckerman
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Activists want anti-vaccine amendment in Ohio Constitution
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Two women protest vaccine mandates Aug. 24 outside a hearing at the Statehouse on legislation that would outlaw the practice from employers. (Graham Stokes/Freelance Photographer)

State politicians advanced an effort Tuesday to place anti-vaccination language onto a general election ballot, which would leave the fate of vaccine mandates in Ohio in voters’ hands.

If passed, Ohio would become the only state in the nation with an explicit ban of vaccine mandates in its constitution. It would mark a major step backward for public health, dampen an already sluggish COVID-19 vaccination effort in Ohio, and nix a practice of mandating vaccination that traces back through early American history.

The Ohio Ballot Board — a bipartisan panel controlled by Republicans — allowed organizers of the “Medical Right to Refuse” amendment to begin gathering the 443,000 voters’ signatures required to place the referendum on a ballot. Organizers said they’re hoping to put the issue to voters in May 2023.

The proposal covers all vaccines, not just COVID-19. It contains two basic elements:

  • “An individual’s right to refuse any medical procedure, treatment, injection, vaccine, prophylactic, pharmaceutical, or medical device shall be absolute.”
  • “No law, rule, regulation, person, employer, entity, or healthcare provider shall require, mandate or coerce any person to receive or use a medical procedure, treatment, injection, vaccine, prophylactic, pharmaceutical, or medical device nor shall the aforementioned discriminate against the individual who exercises this right.”

If enacted, the law could force changes in several institutions that require vaccination. For instance, the Ohio National Guard requires a broad range of vaccinations from its troops; Ohio k-12 schools and colleges require vaccination against COVID-19 and other diseases as a term of enrollment (although broad exemptions can be invoked); some health care providers require their care personnel to receive vaccinations; some employers require them as well.

How far does it go?

Organizers of the referendum are affiliated with the Ohio Advocates for Medical Freedom, an anti-vaccination political organization. Dr. Steven Werming, a proctologist who helped organize the political effort and spoke at Tuesday’s hearing, said the amendment is about the right to refuse medical treatment.

He said he provides the pros and cons but doesn’t recommend that his own patients seek vaccination, and he offered several debunked claims about COVID-19 vaccines while speaking to reporters.

“The more vaccines you’ve received, the more likely you are to contract COVID,” he claimed.

He later noted a recent uptick in all-cause mortality for working-age Americans and seemed to baselessly connect it to vaccination.

“We have not yet begun to see the consequences of this,” he said.

The vaccines are extraordinarily effective in preventing hospitalization and death in COVID-19 patients. They also reduce risks of infection compared to unvaccinated people, according to CDC research, but do not provide a guarantee against infection.

The precise scope of the proposed constitutional amendment is unclear. It could be used to target businesses that require vaccinations from their patrons if courts determine this is an effort to “coerce” people to obtain vaccination or to “discriminate” against the unvaccinated.

Pavan Parikh, who sits on the Ballot Board, offered another hypothetical: If a person with bad eyesight wants a driver’s license, he or she must wear corrective lenses to drive. Isn’t that a rule requiring a treatment?

Werming didn’t provide a clear answer during the hearing or later in an interview but noted that driving is a privilege, not a right.

The amendment conflicts with other common practices as well. Judges sometimes order completion of substance use disorder treatment. Additionally, Ohio law allows certain professionals to involuntarily hospitalize or “pink slip” a person if they have reason to believe he or she could hurt themselves or others.

Diana Smith, a certified nursing assistant, joined Werming as an organizer. She said businesses demanding COVID-19 vaccination could be a slippery slope.

“If you’re allowing your business to dictate that you can have a COVID vaccine mandate, who said they can’t say women or men have to go on birth control now because we don’t have time for you to be off work for maternity leave?” she said.

When asked, Smith said she’s not vaccinated against COVID-19. Werming declined to answer, citing the Health Insurance Portability and Accountability Act of 1996.

Jill Krueger, a regional director for the Network for Public Health Law, said the amendment is part of a mid-pandemic, nationwide backlash against effective and historically accepted public health responses to threats of infectious disease.

The key word in the amendment is “absolute,” she said. While she declined to delineate what policies would or would not be allowed, anything tilted toward requiring or incentivizing vaccination could be targeted. The courts would likely need to interpret.

“At the very least, it’s unclear,” she said.

Stephanie Stock, an organizer of the referendum campaign and president of Ohio Advocates for Medical Freedom, didn’t respond to written inquiries.

History of vaccines and mandates

Vaccine mandates trace at least as far back as General George Washington, when he ordered his troops inoculated against smallpox in 1776.

In 1905, the U.S. Supreme Court upheld a Cambridge, Massachusetts law that imposed a fine against those who refused to take the smallpox vaccine. The court held that every society charged with protecting the health and safety of its members must sometimes apply reasonable regulations to do so. The case has been cited repeatedly in judgements upholding various vaccine mandates against legal challenges.

The success of vaccines, coupled with state laws and institutional policies that ensure the breadth of their coverage, is massive.

For instance, vaccines ended smallpox in the U.S. in 1949 and in global circulation in 1980. Vaccines ended circulation of polio in the U.S. — which used to disable 35,000 Americans annually — in 1979.

Measles used to infect an estimated 3 million to 4 million Americans per year, killing 400 to 500, according to the CDC. The vaccine, introduced in 1963, would largely eliminate the disease by the turn of the century. Some researchers have warned, however, that vaccine hesitancy and refusal are threatening safety from measles in the U.S.

Despite these successes, Ohio, via a Republican-dominated state legislature, has moved decidedly backward on vaccination.

After passage of a 2005 law, Ohio became one of 15 states that recognize philosophical or “reasons of conscience” exemptions to k-12 vaccine requirements. Most states only accept medical exemptions to their requirements.

Last year, Gov. Mike DeWine signed legislation that prohibited schools and colleges from mandating vaccines that have only been approved for “emergency use” by the U.S. Food and Drug Administration. This included all COVID-19 vaccines at the time, although vaccines produced by both Moderna and Pfizer/BioNTech have since received full federal approval for use in those 18 and 16-and-up, respectively.

The Ohio House last year passed legislation that would ban most vaccine mandates. The state Senate, however, has yet to take up the proposal.

An earlier version of this article omitted age minimums on federal regulatory approval of COVID-19 vaccines. It also misstated the number of signatures required to offer the amendment on the ballot. 

Follow OCJ reporter Jake Zuckerman on Twitter