Circulating on social media is a recently published draft task force report from the New York State Bar Association, Health Law section. Like social media is saying, these New York health lawyers are proposing a State bar position in favor of mandatory COVID-19 vaccinations, and specifically:
“when the efficacy of a COVID-19 vaccine has been confirmed, enact legislation requiring vaccination of each person unless the person’s physician deems vaccination for his or her patient to be clinically inappropriate.”
See page 82 of the report, number (6). Here it is in case you want to look it over yourself.
This is utter foolishness, at least at this point in time, because of all the medical and scientific uncertainties and confusion about the disease. These health care lawyers would be better served if they correctly wrote about the state of vaccine law (which they didn’t) and concluded that at this point in time, there is not enough information to know whether a mandatory vaccine is feasible or required in the interests of public health. Here is why I think the draft recommendation is foolish, and the supporting legal analysis incorrect.
First, we do not know if the virus is coming back in the fall, i.e., whether there will be a second wave. Most recognized scientists are not sure, nor can they be. While the there was a much more deadly second wave of the Spanish Flu in the later part of 1918, other recent epidemics like Ebola, Swine and Avian flu came and went (epidemic wise anyway). Because COVID-19 is a new coronavirus strain, no one knows what is going to happen with it. So, what is the sense of recommending vaccine mandates prior to knowing whether this is one-and-done, or a second pandemic wave situation (or somewhere in between)? If there is no second wave, the need for a mandatory vaccine should be much less pressing.
Second, many experts are concerned about the highly abbreviated vaccine approval time-line, and question whether it is possible to create a new vaccine within the predicted/hoped for one year to 18 months. Unlike vaccine approval process in the past, a COVID-19 vaccine approval will be monitored by the public and picked-apart by thought leaders on both sides of the issue in public, people like Paul Offit to Bobby Kennedy. I think it is quite possible that they and their respective allies will actually be on the same side of the issue, in terms of FDA approval (non-approval actually) of a COVID-19 vaccine. (There are many reasons I think this, but I’ll explain them in another post.)
Let me point out something missing from the discussion of vaccine law (pages 60-62), namely that there has not been generalized adult mandatory vaccination in this country for over a hundred years. (except for health care workers in many states). It is far from clear that the country would accept mandatory adult vaccination.
In fact, under CDC’s definitions, most adults are under vaccinated or actually considered “unvaccinated” because they have not received all recommended vaccines and boosters. The CDC surveys adults every year, so vaccination coverage rates are readily available.
Distilling these three points: It is not clear that a universal mandatory COVID-19 vaccine will be needed by the proposed optimistic vaccine approval time-line, and given the lack of universal mandatory vaccination for the past hundred years and the unvaccinated status of most adults, it is far from clear that the country is ready to accept it.
The vaccination section of the draft report (pages 60-62) does cite 2018 CDC based information (page 60 footnote 335) that a majority of Americans will want the vaccine. But 2018 is now ancient history and not applicable, given all the concern expressed by pro-vaccine thought leaders complaining that the proposed time-line cannot produce an adequately tested vaccine. So, I think these health care lawyers are just dead wrong about this.
I predict that the more information that comes from the clinical trials of these vaccine trials, the less support there will be for mandatory vaccination, and you will be able to thank both Paul Offit and Bobby Kennedy and their colleagues and supporters for that!
The report cites various federal bills, some of which presumably propose federal mandatory vaccination. I sort of doubt there will be a federal COVID-19 vaccine mandate, in part because I suspect that Congress would have very legitimate concerns about the constitutionality of such legislation. Vaccines mandates are usually a state law matter under the 10th Amendment. I understand the commerce/interstate commerce argument, and how these concepts are used to allow for legislation which one would normally think are state law issues, but still. . . For sure, if there is no big second wave, I do not see federal mandatory COVID-19 going anywhere. If there is a second wave, I see the main action taking place in the states.
The flip side of this, is that I am fairly confident that President Trump does not have the constitutional authority to prohibit mandatory COVID-19 vaccination by the states. So, if you hoping he is going to save you and your family from a state COVID-19 vaccine mandate, I think you will be disappointed.
Finally, in the last few decades, there have been several-high profile infectious disease epidemics which despite pharma’s efforts, have not resulted in a safe and effective vaccine. Furthermore, we now know that some of these recent vaccines have actually exacerbated the disease and caused death.
This is a much different world than 1905 when the Jacobson decision was handed down, and which dealt with a vaccine which had been around for over a hundred years (and a few thousand years if you consider the use of small pox material for vaccination purposes). While Jacobson has been used continually up until the present to justify mandatory school vaccination, removal of the religious and personal belief exemption, and even quarantines, in this new world, in a direct attack on a mandatory COVID-19, where the drug approval process will be played out and debated in public and in social media, it would be a mistake to assume that the courts will reach the same result as they did in 1905.
The short of it is that I think the New York State Bar Association should save itself future embarrassment and reject the vaccine mandate recommendation, and send the vaccination section of the report back for further work, and maybe get some input from people who actually know what they are talking about, or at least who get the concept of nuance.
Rick Jaffe, Esq.