COVID Special Session: Rep. Terry’s Take

October 29, 2021

While some hold the false and dangerous belief that mandates, and in particular COVID vaccine mandates, provide bulletproof benefits and are without risk to an individual, others, conversely, underestimate the value in prophylactic prevention of  disease while overestimating the risk of that treatment.  Unfortunately, society is often pitted against one another with a false dichotomous scenario when in fact, there is a reasonable path forward.

The Tennessee General Assembly has been called back into a Special Session to discuss and debate several issues, but specifically COVID and COVID mandates.  I have been working with my colleagues to find that path forward.  Protecting the health and rights of an individual while working to ensure the interests of public health should not be mutually exclusive and should be a goal that unites us.

As a physician who has taken care of COVID patients and seen the negative individual and public health outcomes caused by the virus, as the Chairman of Health who has spent extensive time with legal services on public health issues related to COVID, and as a patient who has been “fully vaccinated” and has also had a breakthrough COVID infection, I have multi-faceted knowledge and firsthand experiences that have shaped my perspective on this topic.

During my research, one article from the American Journal of Public Health caught my attention and has been beneficial in my discussions with others about this topic.

The article states that “Jacobson established a floor of constitutional protection that consists of 4 overlapping standards: necessity, reasonable means, proportionality, and harm avoidance. These standards, while permissive of public health intervention, nevertheless required a deliberative governmental process to safeguard liberty.”

In the landmark case Jacobson vs Massachusetts in 1905, the Supreme Court(SCOTUS) ruled in a 7-2 decision that the state had “police powers” to, in some cases, limit personal freedoms for the sake of public safety.  Justice Harlan, in his opinion, stated that the Constitution protects individual liberty and that liberty is not “an absolute right in each person to be, in all times and in all circumstances, wholly free from restraint”.  However, the SCOTUS did exercise caution in their ruling by stating that a situation in which regulation did not meet the proper criteria of being reasonable and necessary could be struck down by the courts and that the court had the responsibility to prevent “arbitrary and oppressive” regulations.

In plain language, the SCOTUS ruled that liberties could be restricted if the regulations were reasonable and necessary, but the courts had a duty to strike down anything arbitrary or oppressive.  Therein lies the crux of many issues at hand relative to COVID.  It is, also, part of the decision process that I have put forth when looking at various mandates either by government or businesses.  Is a particular mandate necessary, have proportionality, reasonable, and avoid harm to an individual or is it arbitrary and oppressive?

Understanding my process, the only criterion that might be met in order to mandate vaccines would be proportionality in that a mandate has the potential to result in decreased morbidity and mortality due to COVID-19 than compared to the absence of any mandate.  With close to 50% of the state already vaccinated, having a significant portion of the state with natural immunity from a previous infection, and 16% of the population very low risk children, the balance of proportionality is not as overwhelming as it once was.  I certainly understand the sentiment for any mandate when this is the only criteria considered, but, as with any other medicines, there are risks, individual health profiles, and circumstances that must, also, be considered.

To that point, the other three criteria of necessary, reasonableness, and harm avoidance cannot be met.  “Necessary” is not defined in our code, but has the plain language meaning of “absolutely essential”.  Due to the fact that fully vaccinated individuals can still both contract and spread COVID-19, it is my opinion that the vaccine cannot be considered necessary, or absolutely essential, particularly when discussing the health and safety of others as required in our Tennessee code.  Is it a mitigating measure? Yes. Does it help protect the individual that is vaccinated? Yes, but we do not know to what extent.  Does it prevent the spreading of the infection to another individual? No.

It is, also, not reasonable for someone who has recovered from a previous COVID-19 infection to be compelled to be vaccinated, or to lose their job for refusing vaccination, as this would infringe upon that individual’s right to life, liberty, and the pursuit of happiness.  Is it reasonable to screen individuals in a non-invasive manner for symptoms without asking for private health information? Yes, and that would be in compliance with state law.  But, mandates that require invasive tests or private health information go beyond that threshold.

Additionally, knowing that an injection will induce an immune response, a hyper-metabolic response, and likely an inflammatory response in this same individual, how can one ensure harm avoidance? One cannot.  Yes, the vaccines are low risk, and the benefits outweigh the risks for most people, however, they aren’t risk free. One cannot know every person’s health profile before enacting a general mandate for a medication. In order to satisfy “harm avoidance”, there have to be exemptions. Any mandate, and there are plenty out there, that doesn’t meet these criteria is likely arbitrary and oppressive; thus, infringing on the rights of individuals.

While there are some that would like to frame the issue into a simple format of “freedom vs safety” or in one’s own definition of right and wrong, the intertwining of individual health, public health, and constitutional rights is often complex and a challenge that I have analyzed with diligence.  The process that I have used has helped me to draw my conclusions on this issue.  It is an honor to serve District 48 during these unparalleled times, and I look forward to helping Tennessee overcome the obstacles created by COVID.


With Liberty,

Rep. Bryan Terry