The first round in the legal challenges to the state universities’ mandate for the COVID vaccine (including a religious accommodation) are all but over, or at least they will be if and when the Indiana University students emergency motion to the Supreme Court does not get a hearing. There should be an answer in a few days. If the Supremes accept the case and order briefing, well then this round isn’t over. I have noted my scepticism, but we’ll see soon enough.
Assuming the Supremes don’t take up the issue now, the question is what (if anything) is next?
If I were a legal general thinking about the next issues that need to be addressed, the first thing I’d think about is the changing landscape, and by that I mean focusing on what the public health situation looks like right now, and that would be according to the public health officials. I focus on that, rather than what any of you reading this might think is the situation or any of the outlier experts think because judges reviewing legal challenges only take seriously mainstream opinions by experts recognized by the public health establishment. That’s not something any of you (including the prominent vaccine lawyers and advocates) want to hear, but I think that it a fair analysis of what the judges have said and done recently. And of course, it is completely consistent with and specifically stated by the Jacobson opinion (per my recent post which I quoted the “common view” language from the opinion).
So what do the public health officials know right now? (And it’s obviously a moving target since it seems that things are changing very quickly)
Obviously, the Delta virus has a much higher degree of transmissibility than previous versions of the virus to the point where it is now accepted that the vaccines do not prevent the transmission of the disease. For sure, the vaccines were not granted EUA approval based on preventing catching or transmitting the virus, but rather preventing deaths (and maybe reducing hospitalizations). But now that the initial evidence is in that it does not prevent transmission of the Delta variant. I think this finding was in part based on the recent Cape Cod cluster. The results of this data I believe precipitated the CDC’s flip on the mask mandate for vaccinated people
If so, then it seems that could void or lessen the rationale and the fear people have that the unvaccinated are the primary spreaders of the disease. If the data in the next weeks and months stays the same on this point, that might have some implications of the reasonableness of continued university mandates, at least to the extent they are based on the fear that the unvaccinated are the spreaders of disease. I do note that some of the vaccines in school mandates are for non-contagious diseases (tetanus) or for limited contagious diseases. So there is precedent for mandatory vaccination apart from the risk created by the individual to others. Still, it is an interesting issue that might be worth pursuing.
There are two other implications or consequences which follow or may follow from the fact that the vaccine does not prevent the transmission of the Delta variant. First, and something we are just starting to see; things are starting to get canceled or pushed back. Events and in-office work start dates for example. Many of the companies that had set September back to office deadlines are pushing the deadlines back to January. We are also September public events starting to be canceled, like Stevie Nix canceling her September conferences. I think the next shoe to drop might or will be universities or public schools. One Georgia school has just sent everyone home due to an outbreak.
If things keep getting worse, I can see some universities going back to virtual classes again, or at least having that as an option. We could see reluctance from university staff and teachers about going back, even with the vaccination, because of break-out cases. I also think that despite the public health establishment’s reassurance that the vaccinated won’t go to the hospital and die, some have and some will continue to be hospitalized and die, in which case, we’ll be to where we were last year, and might remain there until the next break or until there are treatments which are widely acknowledged to work. That might seem overly pessimistic, but don’t bet against what people (and especially the establishment) will do when they are afraid.
If schools that have a COVID mandate do go back to zoom learning or give students and teachers the option, then of course that impacts the rationale for the mandate for students who do remote learning. My impression is that for now, mandates apply even to remote learning, which seems odd and beyond the obvious rationale of a university mandate. So, that is another area that needs to be looked at.
Finally, Los Angeles Country is considering requiring vaccination for public events like concerts and restaurants, and gyms. The cases from last year are all over the place. We know that the Supremes will apply strict scrutiny for a restriction that applies to churches. But LA County is actually thinking about barring the unvaccinated from retail establishments. Does that including grocery stores? I don’t know, but I think that would be a step to far. It’s hard to believe that the courts would uphold a regulation that disallowed citizens from buying groceries, but hey it’s California, so who knows. I am sure that many Angelenos are paying very close attention to those city council meetings. That would be a good place to make your voices heard (in a respectful and rational manner). I have to believe that a majority of council members haven’t completely lost their common sense. And if they have, there will be multiple lawsuits challenging that regulation and I think the courts will strike down a county ban on at least that part of the retail aspect of the reg. I should point out that while I think a country requirement for vaccination to shop (at least grocery shop) would be struck down, I think individual stores could legally impose such a requirement, just as they can impose a mask requirement. However, stores are in the business of making money, and eliminating 30% of potential customers is not the best way to make money. So I don’t see that happening in the current state of COVID affairs.
What about Mandatory Public School Vaccination?
Of course, there is no EUA for the under 12, and California does currently have a restriction on new vaccines in the vaccine schedule which requires a PBE (last time I checked). I think the bigger problem is going to be what happens if and when Delta hits the California schools. The authorities are going to have to weigh closure versus somehow trying to mandate vaccinations for school children who are not excluded from the EUA.
Also, looks like the Pfizer vaccine will have full approval/licensure by the end of this month, or early September. Of course, that obviates the “experimental” attack on the vaccine.
The backup position no doubt will be that approval was rushed, political and that the vaccine has not proven to be safe because there are no long-term studies. Plus, there are the standard lines of attack that vaccines approval have no control group, as well as the informed consent and right to bodily integrity arguments that have been raised in pretty much every prior attack on mandatory vaccination cases. And let’s not forgot the mother and father of all attacks on vaccines, namely, the conflict of interests and that the manufacturers are immune from civil liability. These last to me seem tone deaf in the middle of a pandemic, but that’s just my opinion. I think all of these arguments will be about as successful in court in COVID mandate litigation as they have been in the prior mandate litigations, meaning the courts will reject them in the COVID litigation context. If these arguments didn’t work in contagious disease-free times, then they certainly won’t work ( a fortiori, to the Latin or legally inclined) during a new wave in the pandemic. And no, I don’t think you will be able to convince the courts that there is no pandemic or that it’s not deadly, (to anyone of you who are still holding on to that view).
So, that’s how I see the new legal issues and potential challenges to be shaping up as we are about to enter the Delta variant mandate world.
Rick Jaffe, Esq.