March 4, 2021 Reading Time: 3 minutes

At a press conference this afternoon, New York’s now disgraced Governor Andrew Cuomo provided details of the health passport program he had announced a day prior. The scheme should send chills down the spine of anyone who believes in the importance of civil liberties and the integrity of the individual.

In order to attend events of a certain size, attendees will have to demonstrate either that they have been vaccinated or tested negative for Covid-19 within the past 72 hours. Incidentally, the only way to provide such evidence is to download the “Excelsior Pass,” developed “in partnership with IBM.” In an irony that would be hilarious were it not so disturbing, the Governor’s website promises “[r]obust privacy protections . . . woven throughout the digital health pass solution.” A cynic might also note that once again, a big tech company is benefitting from illiberal policies enacted in response to the pandemic.

The authoritarian nature of this program should not be underestimated. Anyone who enjoys attending or plans to attend a large event is now under enormous pressure to get vaccinated. 

I am by no means anti-vaccine as a general matter, and I believe that the Covid-19 vaccines can provide a substantial benefit to many people, especially vulnerable populations. But there are real risks to receiving it, especially given the new nature of the technology employed by the Moderna and Pfizer vaccines, and the fact that they have received emergency use authorizations rather than full market approval. As evolutionary biologists Heather Heying and Bret Weinstein have explained, public health authorities tend to downplay the dangers of immunizations in order to convince more people to get them – a version of game theory – in order to achieve herd immunity through inoculation.

It is, therefore, not unreasonable for healthy, relatively young people to whom the virus poses a negligible threat to conduct a cost-benefit analysis and decide to forego vaccination in favor of potential natural immunity. Nor is it irrational for vulnerable individuals to make the same choice. Vaccination is – or should be – a personal decision based upon one’s assessment of the risks and benefits to oneself and others. By tying the ability to attend certain events to immunization status, Governor Cuomo is effectively using the coercive power of the state to influence people’s choices about their bodies and their health, and the degree to which they are willing to take on a risk for the benefit of other people.

That one can provide proof of a negative Covid-19 PCR test as an alternative does not make this policy any less troubling. While these tests do not carry the health risks that vaccinations do, they raise other concerns. A positive result entails a forced 10-or 14-day quarantine, which constitutes an inconvenience to nearly everyone, and a grave difficulty for many, including those whose paycheck relies upon physical presence in the workplace. Once again, class is implicated, as white-collar professionals who work on Zoom and can afford to order Fresh Direct and Seamless can withstand a quarantine period in relative comfort.

Notably, it is essential workers, often members of the working class, who are most likely to have acquired natural immunity through previous infection.  Yet they are not permitted to utilize that to their advantage under the Governor’s scheme.  

Thus, in essence, one either has to get vaccinated, or risk being forced into quarantine, to attend a large event. 

Finally, policies of the sort on which the Governor is so keen (namely, those that allow him to exercise power over the population) will undoubtedly further deplete trust in public health. For decades, there has been a consensus that effective health policy relies upon trust between the public and authorities. When people rightly feel stripped of their bodily integrity and the freedom to make their own decisions about their health, and that they are being treated as chattel to effectuate some grander plan, there is a breakdown in this relationship. 

Cuomo’s new policy should come as no surprise, given the events of the past year, during which governments across the globe have violated human rights en masse in a – mostly failed – quest to control the virus. This unprecedented use of state power to coerce New Yorkers to receive a vaccine is simply the next chapter in our dystopian nightmare. The Framers of our Constitution knew that those in power inevitably abuse it, which is why they provided for separation of powers through three branches of government. Governor Cuomo has had too much control for too long; he has obviously enjoyed wielding it since Day 1. As I have said again and again, until we make clear that we will not abide by these infringements on our civil rights, our liberty, and our dignity, they will not stop. Unfortunately, New Yorkers have proven themselves all too willing to comply. 

Jenin Younes

Jenin Younes

Jenin Younes is a graduate of Cornell University and New York University School of Law.

Jenin currently works as a civil liberties attorney in Washington DC.

She enjoys running, restaurants, and reading in her free time.

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