The Question of Legal Culpability for COVID Deaths | Opinion

The Supreme Court recently ruled 6-3 along party lines to block President Joe Biden's vaccine mandate. A month before, prosecutors in Oakland County, Mich. decided to charge Ethan Crumbley's parents with involuntary manslaughter for giving their 15-year-old son a semiautomatic gun and ignoring the warning signs he might use it to kill four students at his high school. What does one decision have to do with the other? They both raise the question of culpability for ignoring the risk of death from specific actions. Those who discourage others from getting COVID vaccines might be criminally responsible for resulting deaths.

Ethan Crumbley is charged with murdering four students. His parents bought him the semiautomatic he used. They saw his drawing of a bullet and person shot and bleeding, with the caption "blood everywhere." They let him return to class with his gun. After the shooting hit the news, his mother texted, "Ethan, don't do it."

The parents are charged with involuntary manslaughter because they were aware that their actions created the risk of the shooting. Proving those charges doesn't require proving intent to cause another's death, only the awareness of the risk.

Many states have laws on their books that hold people criminally responsible for deaths resulting from their actions if they know and ignore the risk of death, including Texas and Florida, whose governors are hostile to vaccine mandates.

Like Ethan's parents, elected officials who fight vaccine mandates must be aware of the high risk of death for the unvaccinated. That risk is glaring. CDC statistics show that the unvaccinated are 68 times more likely to die from COVID than those who are fully vaccinated and boosted (Aug. 29 through Dec. 31).

Texas' own Department of Health concluded that the unvaccinated were 20 times more likely to die from COVID than the vaccinated and urged vaccination as "a critical tool to help stop the COVID-19 pandemic." The nonpartisan Commonwealth Fund found that COVID vaccines could have prevented approximately 1.1 million deaths.

So far only 60 percent of Republican voters have received at least one shot, compared to 91 percent for Democratic voters. And the partisan difference in vaccination rates correlates with death rates.

In counties that voted heavily for Donald Trump, monthly COVID deaths per 100,000 peaked at 35; seven times the peak in counties that voted heavily for Joe Biden. Since the advent of Omicron, deaths per 100,000 rose from 18 to 26 in heavily pro-Trump counties, but stayed level at about four in heavily pro-Biden ones. Death rates from COVID are more than three times higher in pro-Trump counties than in pro-Biden ones.

So why is opposition to vaccine mandates overwhelmingly Republican?

In the Senate, every Republican voted to overturn Biden's vaccine mandates. Senator Ted Cruz introduced a bill blocking mandates for public schools.

In the House, Republican members indulge in virulent anti-vaccine rhetoric. Representative Madison Cawthorn warned that Biden's door-to-door vaccine efforts could morph into a door-to-door confiscation of guns and Bibles. Representative Marjorie Taylor Greene tweeted, "People have a choice, they don't need ... medical brown shirts showing up at their door ordering vaccinations." Her account was permanently suspended after she tweeted false information about "extremely high amounts of Covid vaccine deaths."

The 27 states that asked the Supreme Court to block vaccine mandates were all Republican-led. In fact, 12 Republican-led states had already banned vaccination mandates. Citing the Supreme Court ruling, a Texas judge struck down Biden's federal worker vaccine mandate. More states are likely to follow both courts' lead and block businesses and schools from requiring vaccinations.

Florida Governor Ron DeSantis signed one bill that shields nursing homes, hospitals and businesses from liability if people contract COVID-19 on their premises, and another that prohibits private employers and government agencies from requiring workers to be vaccinated. Not coincidentally, Florida reports over 20,000 infections a day and has suffered over 64,000 COVID-19 deaths. DeSantis blames Biden for these outcomes.

Texas Governor Gregg Abbott sued the Biden administration to block vaccine mandates from applying to the Texas National Guard and signed a bill that denies state contracts and allows revocation of licenses and permits for businesses that require customers to show proof of vaccination.

South Dakota Governor Kristi Noem cheered the Sturgis Motorcycle Rally, after which local COVID cases surged 3,400 percent. Health officials blamed it for cases in five other states. "There's a risk associated with everything that we do in life." Noem shrugged before the rally. "Bikers get that better than anyone."

Meanwhile right-leaning news outlets disseminate vaccine misinformation, notably Fox News. Tucker Carlson called a Biden vaccination plan "the greatest scandal in my lifetime."

To be fair, politicians' vaccine attitudes sometimes cross party lines. Two Senate Democrats, Joe Manchin and Jon Tester, joined Republicans in voting to overturn Biden's mandate. And some Republicans are pro-vaccine. Utah Governor Spencer Cox protested that anti-vaccine propaganda is "killing people." Some GOP governors won't ban mandates by businesses. Four Republican Florida school districts representing more than half of public school students openly oppose DeSantis' anti-mandate stance. But Republican pushback is still comparatively rare.

The U.S. has a long history of vaccine mandates and objections to them. But the objections were not politicized and partisan (many came from liberals) until now. George Washington ordered smallpox inoculations for all his troops on Jan. 6, 1777. In 1904, the Supreme Court held that states have the authority to "reasonably" infringe upon personal freedoms and mandate vaccines during a public health crisis. Every state in the country routinely mandates vaccinations for many diseases.

So why should today's Republican politicians be so anti-mandate? What's in it for them, especially when unvaccinated Republican voters suffer from COVID disproportionately?

If Republicans succeed in preventing Biden from containing the pandemic, they are more likely to win elections. But more Americans are dying as a result.

That raises a legal question. If Ethan Crumbley's parents' disregard of the clear risk of shooting deaths exposes them to charges of involuntary manslaughter, wouldn't anti-vaxxer and anti-mandate politicians have the same exposure? They can't help but be aware of the risk of unvaccinated deaths, yet they're choosing to ignore it. That ought to be against the law, and probably is.

Neil Baron is an attorney who has represented many institutions involved in the international markets and advised various parts of the federal government on economic issues.

The views expressed in this article are the writer's own.