No Vaccine Passports Act
A BILL
To protect individual liberty, ensure privacy, and prohibit discrimination with respect to the vaccination status of individuals, and for other purposes.
Sec. 2 Findings
Congress finds as follows:
In December 2019, reports began circulating that hospitals in Wuhan, China, were seeing cases of a pneumonia-like respiratory illness of unknown origins.
On December 31, 2019, an automated translation of a Chinese media report about a novel respiratory outbreak was posted to ProMED, one of the largest public emerging disease and outbreak reporting systems used to promote communication among infectious disease specialists, including scientists, physicians, veterinarians, epidemiologists, and public health professionals.
The ProMED posting prompted the World Health Organization (referred to in this section as “WHO”) to instruct its China Country Office to request verification of the outbreak from the communist government of the People’s Republic of China.
In response to the WHO-prompted inquiry, the Wuhan Municipal Health Commission issued its first public statement on the outbreak, saying it had identified 27 cases.
On January 3, 2020, in what is clear conduct by the Chinese government to cover up the origins and dangers posed by the outbreak, Dr. Li Wenliang, a physician at Wuhan Central Hospital, was reprimanded by local police in the Public Security Bureau for spreading allegedly “false statements” about the outbreak online.
On January 3, 2020, the Chinese Center for Disease Control and Prevention (referred to in this section as “China CDC”) Director-General Gao Fu told the United States Centers for Disease Control and Prevention (referred to in this section as “United States CDC”) Director Robert Redfield about a pneumonia outbreak in Wuhan, Hubei Province, China.
On January 6, 2020, the Secretary of Health and Human Services, Alex M. Azar II, and the United States CDC Director Redfield offered to send United States CDC experts to China and the United States CDC issued a “Watch Level 1 Alert” for Wuhan, meaning that the United States CDC recognized a heightened risk for travelers, cautioning travelers to use health precautions when traveling to areas in China.
On January 11, 2020, a team led by Professor Yong-Zhen Zhang of Fudan University in Shanghai posted the genetic sequence of the novel virus on an open-access platform, sharing it with the world.
On January 14, 2020, the WHO tweeted, “Preliminary investigations conducted by the Chinese authorities have found no clear evidence of human-to-human transmission of the novel coronavirus (2019–nCoV) identified in Wuhan, China”. The WHO’s assertion has been proven false and completely contrary to medical science given that there have been nearly 163,000,000 cases of infection worldwide, resulting in more than 3,380,000 deaths.
On January 20, 2020, China confirmed person-to-person transmission of the novel coronavirus and infections among medical workers.
On January 21, 2020, the United States CDC announced the first COVID–19 case in the United States.
On January 30, 2020, WHO Director-General Tedros declared the epidemic a Public Health Emergency of International Concern, and President Donald J. Trump announced the formation of the President’s Coronavirus Task Force. In a statement from the WHO regarding the second meeting of its International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019–nCoV), the Committee specifically did “not recommend any travel or trade restriction based on the current information available”.
On January 31 2020, President Trump suspended entry into the United States of most foreigners who were physically present in mainland China during the preceding 14-day period, effective February 2, 2020, and Secretary Azar declared a public health emergency for the United States to aid response to the novel coronavirus.
On February 1, 2020, then-Presidential candidate Joe Biden recklessly downplayed the risk of the virus, suggesting in a tweet that President Trump’s efforts to limit the spread of the virus were nothing more than “hysteria, xenophobia, and fear-mongering”.
Numerous individuals criticized these travel restrictions. When asked “if you had to, would you close down the borders?” to stop the spread of coronavirus, Senator Bernie Sanders said, “no”. When asked about these travel restrictions, Representative Nancy Pelosi stated, “actually tens of thousands of people were allowed in from China, it wasn’t as it was described as this great moment”. WHO Director-General Tedros Adhanom Ghebreyesus was reported to say that widespread travel bans and restrictions were not needed to stop the outbreak and could “have the effect of increasing fear and stigma, with little public health benefit”. Reportedly, Representative Ami Bera stated that the travel ban “probably doesn’t make sense” since the outbreak had already spread to several other countries, that such measures were causing an antagonistic relationship with the Chinese, and such mandatory quarantines “may be overkill”.
Health experts have since noted that the early United States restrictions imposed on travelers from China saved American lives. Former United States CDC director Dr. Tom Frieden noted that “the travel ban with China made a difference… It resulted in a significant delay in the number of people coming in with infection and because of that, that bought time in the U.S. to better prepare.”.
On February 26, 2020, the United States CDC confirmed a case of COVID–19 in California in a person who reportedly did not have relevant travel history or exposure to another known patient with COVID–19.
On February 29, 2020, the United States CDC reported the first COVID–19 death in United States, though later public reports indicated that the first death from COVID–19 may have been weeks earlier.
In a 60 Minutes interview posted on March 8, 2020, Dr. Anthony Fauci stated that “right now in the United States, people should not be walking around with masks … there’s no reason to be walking around with a mask. When you’re in the middle of an outbreak wearing a mask might make people feel a little bit better, and it might even block a droplet, but it’s not providing the perfect protection that people think that it is. And often, there are unintended consequences, people keep fiddling with the masks, and they keep touching their face… But, when you think masks, you should think of healthcare providers needing them and people who are ill. The people who, when you look at the films of foreign countries and you see 85 percent of the people wearing masks, that’s fine. That’s fine. I’m not against it. If you want to do it, that’s fine … It could lead to a shortage of masks for the people who really need it.”.
On May 15, 2020, the Trump administration announced the establishment of Operation Warp Speed, a public-private partnership to expedite the timeline for development, large-scale manufacturing, and delivery of a safe and effective COVID–19 vaccine to the American public. The initial goal of the project was to develop at least 1 vaccine and begin administering it to Americans before the end of 2020. As reported on BioCentury, Dr. Anthony Fauci noted that the fastest a vaccine might be ready for use in an emergency would be 1 year, although the process could take up to 2 years. Before the Senate on March 3, 2020, Dr. Fauci stated that the process would likely take at least 1 to 1½ years to have a vaccine that could be administered to American persons. Some, such as the analytics firm Clarivate, concluded that it might take at least 5 years for the leading vaccine candidates, like Moderna, to complete the development process through full regulatory approval.
Operation Warp Speed and other government actions sped COVID–19 vaccine development by enabling typical vaccine development steps to be taken simultaneously with manufacturing and distribution planning. As part of these actions, the Federal Government made investments in critical manufacturing capacity, giving pharmaceutical companies confidence that if they invested in developing a vaccine, once the vaccine received authorization from the Food and Drug Administration, these companies would be able to immediately begin distributing the vaccine.
On July 14, 2020, the United States CDC issued stronger recommendations to wear masks as a strategy for preventing the spread of COVID–19. United States CDC Director Robert Redfield, in a news release from the agency, identified masks as “one of the most powerful weapons we have to slow and stop the spread of the virus”.
On December 11, 2020, the Food and Drug Administration issued the first emergency use authorization (referred to in this section as “EUA”) for a vaccine for the prevention of COVID–19 in individuals 16 years of age and older. The EUA allowed the Pfizer-BioNTech COVID–19 Vaccine to be distributed in the United States.
By June 2022, subsequent modifications to the EUA by the Food and Drug Administration expanded the Pfizer-BioNTech COVID–19 vaccine application to include eligibility for individuals from 6 months of age and older.
On December 18, 2020, the Food and Drug Administration issued an EUA for the second vaccine for the prevention of COVID–19 in individuals 16 years of age and older. The EUA allowed the Moderna COVID–19 Vaccine to be distributed in the United States for use in individuals 18 years of age and older.
By June 2022, subsequent modifications to the EUA by the Food and Drug Administration expanded the Moderna COVID–19 vaccine to include eligibility for individuals from 6 months of age and above.
On February 27, 2021, the Food and Drug Administration issued an EUA for the third vaccine for the prevention of COVID–19. The EUA allowed the Janssen COVID–19 vaccine to be distributed in the United States for use in individuals 18 years of age and older.
On July 13, 2022, the Food and Drug Administration issued an EUA for the fourth vaccine for the prevention of COVID–19 in individuals 18 and older. The EUA was further expanded to include individuals 12 years of age and older. The EUA allowed the Novavax COVID–19 Vaccine, Adjuvanted to be distributed in the United States for use in individuals 12 years and older.
On August 23, 2021, the Food and Drug Administration approved the first COVID–19 vaccine, Pfizer-BioNTech’s Comirnaty (COVID–19 vaccine, mRNA) for individuals 16 years of age and older.
On January 31, 2022, the Food and Drug Administration approved the second COVID–19 vaccine. The Moderna COVID–19 vaccine “Spikevax” is approved for individuals 18 years of age and older.
Because of this public-private partnership and the funding and support from Congress, multiple COVID–19 vaccines have been developed and manufactured and as of January 19, 2023, approximately 667,815,331 vaccine doses had been administered in the United States.
Despite the successful development, rollout, and uptake of the COVID–19 vaccines, it is now known that the vaccines do not fully prevent infection from the SARS–CoV–2 virus.
The emergence of variants of SARS–CoV–2 has resulted in the development of new COVID–19 vaccines and booster shots.
According to the Food and Drug Administration fact sheets on COVID–19 vaccines, there are certain populations for whom existing COVID–19 vaccines are not indicated or authorized or for whom there is insufficient data to inform vaccine-related risks including—
people who have had a severe allergic reaction to a previous dose of one of the vaccines or has a severe allergy to any of the vaccine components; and
people with certain pre-existing conditions such as bleeding disorders and women who are pregnant, trying to get pregnant, or breastfeeding.
Because of potential risks that the vaccine poses to certain people, it is important that every patient is able to consult his or her doctor to determine whether one of the COVID–19 vaccines and booster shots is appropriate for that patient.
Consistent with fundamental human rights, and medical and legal ethics and proper standards of medical care, every American has the right to “informed consent” with respect to medical treatment, meaning that he or she has a right to be fully informed about the nature of his or her health care and to participate in and voluntarily make decisions related to his or her care. In addition, every patient has a right to medical privacy to expect that the decisions and nature of care will be kept confidential by his or her health care provider and anyone who has access to the individual’s medical records, including vaccination records.
At various times in history, governments and medical professionals have violated these and other inherent rights, including by coercing patients, failing to properly inform patients of, or even intentionally being deceptive with patients about, their rights and the risks inherent with various medical procedures, experiments, and studies, including the Tuskegee syphilis experiments, forced sterilization, lobotomy procedures, electro-shock therapy, certain psychological studies, collection and utilization of individuals’ cells and parts of their body, or from fetal tissue of a patient’s offspring, without knowledge or consent, and eugenics laws.
The absence of informed consent not only constitutes a violation of medical ethics and standards of care, in some cases, treatment may also constitute a crime, such as battery.
Criminal battery stemming from violations of medical ethics and informed consent standards have led to a significant degree of distrust of the government, public health officials, and medical professionals by certain groups and communities including among the most vulnerable populations such as ethnic minorities, immigrants, economically disadvantaged, unmarried mothers, people with disabilities, and individuals with mental illnesses.
On March 19, 2021, the WHO released draft recommendations for a smart vaccine certificate in what amounts to a form of a “vaccine passport” that would, per WHO’s “Smart Vaccination Certificate Working Group”, “support COVID–19 vaccine delivery and monitoring” and to serve “current and future requirements, toward the dual purposes of (1) supporting continuity of care; and (2) cross-border uses”.
In July 2021, the European Commission adopted the EU Digital COVID Certificate (EUDCC), a COVID–19 vaccine passport.
In April 2021, the State of New York launched the first COVID–19 vaccine passport in the United States, known as the Excelsior Pass.
The White House, while saying the COVID–19 Task Force would not create a vaccine passport, engaged in a multi-agency coordination effort led by the Office of the National Coordinator for Health Information Technology to develop criteria and principles for a vaccine passport created by the private sector.
During a March 2, 2021, virtual meeting lead by the Federal Health IT Coordinating Council on behalf of the Biden Administration, a slide presentation included the following: “Proof of individual COVID-related health status is likely to be an important component of pandemic response, proof of immunization will likely become a major, if not the primary, form of health status validation,” and a “unified Federal approach [is] required to ensure Federal activities are working toward the same common goals for vaccine [passports].” Additionally, the presentation suggested the Biden Administration expects that “Federal entities” would “likely require vaccine verification for a variety of purposes” and that the “Federal government will inevitably be involved with vaccine credential solutions… .”.
Despite previous reassurances to not pursue COVID–19 vaccine mandates or passports, the Biden Administration has issued a number of vaccine mandates on millions of Americans through executive orders, memoranda, and Federal rulemaking.
On August 24, 2021, the Secretary of Defense issued a memorandum requiring all Department of Defense Service Members to be vaccinated against COVID–19 as a condition of remaining in the service.
On September 9, 2021, the Biden Administration issued an executive order mandating all employees of Federal contractors be vaccinated against COVID–19 as a condition of employment.
On September 14, 2021, the Biden Administration issued an executive order mandating all Federal employees be vaccinated against COVID–19 as a condition of employment.
On November 4, 2021, the Centers for Medicare & Medicaid Services issued an interim final rule requiring employees of Medicare and Medicaid certified providers and suppliers be vaccinated against COVID–19 as a condition of employment.
On November 4, 2021, the Occupational Safety and Health Administration issued an emergency temporary standard requiring private employers with 100 or more employees to either require employees to receive a COVID–19 vaccine or to require employees to provide regular proof of a negative COVID–19 test.
A number of cities in the United States implemented vaccine passports requiring individuals to show proof of vaccination to enter various establishments.
On August 16, 2021, the city of New Orleans implemented the requirement of a COVID–19 vaccine or a negative test in order to enter indoor establishments and venues.
On August 20, 2021, the city of San Francisco began to require proof of vaccination against COVID–19 in order to enter indoor establishments and venues.
On September 13, 2021, the city of New York began to require its Excelsior Pass or Key-to-NYC COVID–19 vaccine passport in order to enter indoor establishments and venues.
On October 1, 2021, the city of Los Angeles began to require proof of a COVID–19 vaccine in order to enter indoor establishments and venues.
On October 25, 2021, the city of Seattle began to require proof of vaccination against COVID–19 or a negative test in order to enter indoor establishments and venues.
In January 2022, the cities of Boston, Chicago, Philadelphia, Minneapolis, and St. Paul began to require proof of a COVID–19 vaccine in order to enter indoor establishments and venues.
On February 15, 2022, Washington, DC, began to require proof of vaccination against COVID–19 in order to enter indoor establishments and venues.
Throughout 2021 and 2022, a large number of private employers imposed a COVID–19 vaccine mandate on employees as a condition of employment. This has resulted in widespread discrimination based on vaccination status and loss of employment and employment opportunities.
The development, implementation, and utilization of vaccine passports, whether by Federal or State government, or the private sector, has led to significant misuse, abuse, and discrimination against the people of the United States. The use of such passports led to the denial of constitutionally protected freedoms, such as freedom of association and freedom of movement and allowed the government and corporations to track people’s health status on a large-scale basis.
The widespread utilization of vaccine passports has led to discrimination by businesses that provide public accommodations requiring a customer to demonstrate his or her health status, through the presentment of a vaccine passport or other “papers” or by requiring that the customer disclose his or her protected health information, before the business agrees to serve or otherwise do business with such individual, meaning the denial of service in such cases could be based on an individual’s disability, health status, or familial status.
Despite the use of vaccine passports and vaccine mandates leading to a clear violation of constitutional rights, there currently exists no clear regulatory framework to fully protect the privacy of United States citizens and United States nationals with respect to their vaccination records and negative COVID–19 test results.
The widespread acceptance and implementation of vaccine passports has also led to employment discrimination, where employers have taken adverse employment actions against employees who are not vaccinated because of an underlying health condition and without regard to the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), which requires an interactive process whereby the employer follows the law to assess if the employee can and should be reasonably accommodated under such Act.
Given that COVID–19 vaccines do not prevent the transmission of the SARS–CoV–2 virus, the implementation and widespread utilization of vaccine passports has led and will lead to the refusal to provide services to unvaccinated persons.
The denial of public services and public accommodations, as well as adverse employment actions, based on COVID–19 vaccination status, lack of or refusal to present a vaccine passport, refusal to get vaccinated, or requiring an individual to explain the underlying reason why they are not vaccinated, could constitute unlawful discrimination, including as to sex, age, familial status, disability, or based on genetic or other health condition.
Any United States person that requests the vaccine records of a United States individual, including data such as a copy or other digital record of a vaccine passport or similar proof of vaccination, should be regarded as having collected “protected health information” and should be regarded as a “covered entity” as defined in the privacy regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. 1320d–2 note).
The policy of the United States is to recognize, defend, and protect the inherent rights of the individual, including the right to privacy, the right of liberty, the right to be secure in one’s person, the right of the individual to be informed about any medical procedures, treatment, or vaccination, and the right of the individual to provide or withhold consent to such procedures, treatment, or vaccination.
Congress recognizes that special vigilance is required, especially in times of crisis or emergency to ensure that government agencies do not try to take advantage of, manipulate, or inflame public fear, stoke hatred of minority groups, or increase intolerance toward the diversity that builds our Nation.
Congress finds that there is a clear need for the Federal Government to take specific action to restore public trust by protecting the privacy and voluntary informed consent rights of patients specifically regarding vaccinations and an individual’s vaccination records.
Furthermore, the protection of such individual rights to make one’s own medical decisions in consultation with his or her health care provider without fear of coercion, forced vaccination, loss of civil liberties, or risk of adverse employment action is especially needed at a time when it is critical for our Nation to increase public trust in vaccinations and increase vaccination rates in order to end the COVID–19 pandemic.
Sec. 3 Severability
In general— If any provision of this Act, or an amendment made by this Act, or the application of any such provision or amendment to any person or circumstance is declared invalid or unconstitutional, the remainder of this Act, including any amendment made by this Act, and the application of such provisions and amendments to any person or circumstance shall not be affected.
Effect of partial invalidation, repeal, or amendment— The invalidation, repeal, or amendment of any part of this Act, or amendment made by this Act, does not release or extinguish any penalty, forfeiture, or liability incurred or right accruing or accrued under this Act (or amendment), unless the invalidation, repeal, or amendment so provides expressly. This Act, and amendments made by this Act, shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of the right, penalty, forfeiture, or liability pursuant to the previous sentence.