It’s Time to Start Thinking about What’s Next in the COVID Mandate Challenges

It’s Time to Start Thinking about What’s Next in the COVID Mandate Challenges

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.

12 thoughts on “It’s Time to Start Thinking about What’s Next in the COVID Mandate Challenges

  1. Another factor to consider is the burgeoning black market in fake vax cards; universities strangely didn’t anticipate this complication, and there is growing awareness that the reported percentage of vaccinated students (typically 85-90%) is probably way too high, and that enough unvaccinated students will be circulating in dorms and classrooms to arouse fear and paranoia in the double-masked crowd. There is no way that large campuses like the UCs are going to be able to verify all digitized paper cards uploaded into their health “portal,” which can be easily forged in 10 minutes according to one researcher, and the problem threatens to make a mockery of the whole scheme. Vax mandates extended into the retail sphere will face the same problem and for this reason will be unenforceable in practical terms.

    Even if it’s true that only about 10% of registered students are not complying with the mandate, that still presents a huge administrative headache when scaled to the entire Calstate/UC student body. Lots of extra emails and forms, and lots of angry parents and threats to sue if their children are expelled, and hundreds of thousands of dollars in short-term lost revenue to purge existing “dissident” students. A few faculty, perhaps some of them prominent, will undoubtedly make a fuss, and there may also be pushback from some unions.

    I agree that mandating vaccination for entry into “essential” businesses like grocery stores is unlikely short of an unexpected sharp rise in Covid-related fatalities, in which case many people will turn to home delivery anyway. Right now the only businesses that seem to be embracing such mandates are some bars and high-end restaurants. The traffic in large grocery stores is simply too high to stop and check every person entering; having to retrieve a card from your wallet or dig out your smartphone while running into the store to grab coffee filters or a gallon of milk will annoy everyone, and people denied access to purchase food and other necessities are more likely to become combative and even violent. Stores will have to beef up security, and nobody wants to be confronted by uniformed security guards in routine daily activities. I just can’t see bouncers shadowing the frequently-sliding glass doors at Ralphs and Vons. Merchants generally want to entice customers, especially in the wake of a costly shutdown, not antagonize them, and don’t want their teenage stockers and near-retired baggers to serve as health enforcers. Early on-the-ground reports suggest that many merchants are ignoring the recently imposed vaxpass requirements in New York as well as in France as much as they can get away with.

  2. Just curious: Have any of the judges who ruled on mandate cases thus far acknowledged the novelty of the Covid vaccines in their decisions? The smallpox vaccine that was the subject of Jacobson v. Massachusetts had been around in one form or another for half a century, and other vaccines mandated for schools today have likewise been in use long enough to fully assess their safety and potential long-term adverse side effects. I don’t see how a new vaccine could be mandated with the same degree of legal authority as a time-tested one, especially given the comparatively high incidence of reported adverse reactions (rare but potentially serious and even life-threatening) associated with these vaccines to date. The mRNA vaccines may not be “experimental,” but they certainly are “controversial,” and will remain so for a time even after FDA approval. (The drug approval process itself is highly politicized and hardly bulletproof–the FDA historically signed off on at least half a dozen dangerous drugs that were later recalled, and just last month was criticized for approving a dementia drug widely deemed to be ineffective.) One can argue convincingly that the Covid vaccines are indeed “effective,” but “safe” remains an open question beyond the findings of accelerated and limited clinical trials. And there is certainly enough counterevidence from reputable scientific sources (including the developer of the mRNA delivery platform) for any “reasonable” person to be vaccine-hesitant, regardless of “consensus.”

    1. I think at this point you have a difficult argument even claiming that the vaccines are effective. They aren’t.

  3. One more thing and I’ll shut up! For those parents of a UC student, like me, wondering what kinds options outside of a medical or religious exemption might be available for students wishing not to get vaccinated at this time (or at all), I thought I’d share a reply I received today from the Dean of Academic Advising at my son’s college. It provides some insight into how they’re approaching this at the ground level.

    “I completely understand your concerns and will do my best to provide some options here.

    “One option would be to request an exception to the vaccine requirement. At the bottom of this page is a portal for students to submit such requests. I don’t have a lot of insight on the exception criteria, but that may be one route if your son would ideally like to be in-person on campus.

    “The second option is our office can work with him to try to help him identify remote courses that will count toward his degree. I realize the selection of remote classes is not large so it would require some flexibility and likely we would have to focus on general education courses, but we could at least see if we can come up with some options that will allow him to continue to progress toward his degree. If he’s interested in that option, he can access an Academic Counselor on Zoom by going to the Virtual Advising Center and clicking on the ‘Meet an Advisor’ tab.

    “To address the gap quarter issue, he is allowed to take more than one quarter off. He would just have to apply for readmission if he is away for two or more quarters, but the readmission process is minimal and students are automatically readmitted if they were in good standing when they left. I realize this is not the preferred option, but just want you to have that information.

    A middle ground could also be part-time status if it turns out he can find 1-2 required classes that will be offered remotely. This option allows students to take 10 or fewer units for reduced tuition.

    Finally, there is a possibility some classes continue to be converted from in-person to remote. The campus has been planning a mostly in-person Fall quarter, so we can’t necessarily count on that, but each department is assessing the possibility.”

    1. Super interesting info about the exception which I had not heard of. If you can send me the link you received, I’ll check it out and do a short post about it for the benefit of others. Thx

      1. Here’s the link (UCSD):
        https://returntolearn.ucsd.edu/vaccine-mandate/exceptions-and-deferrals/index.html

        It appears that “exception” is just a just a parent term for medical and religious exemptions. The school formally distinguishes between “medical exemption” and “disability,” but both involve a legally recognized medical condition. (It’s kind of amusing that childbirth and pregnancy are considered “disabilities.”) Of course, the Dean did confess he didn’t have much insight into the “exception criteria.”

        1. yea, nothing new, basically a religious accommodation, like what the UC had for the flu vaccine mandate, plus a medical exemption under ACIP contraindications and precautions.
          So it’s still, get vaccinated, get an accommodation(“exception”) or find some place else to go to school.

  4. Religious exemption is definitely the way to go for for the time being. A Calstate student I know just had such an exemption approved. My general impression from several news articles is that universities around the country are (for now) approving many if not most religious exemptions. Anecdotal evidence to be sure, but it’s a win-win for both parties–it provides CYA to the administration with little fear of legal retribution, and it only requires self-attestation on the part of the student.

  5. What’s interesting is that those who receive an exemption, need to test every four days. You can test on campus for free. Remote employees will need to test, so let’s bring us unvaccinated , remote people on campus every four days to test. Doesn’t make sense since us unvaccinated folks are the issue. So bazaar.

    1. Unvaccinated people are most certainly not “the issue.”
      The issue is that the vaccines do not work as advertised. They are merely a way to enforce a new form of social credit system on people.

      1. I was being sarcastic about the unvaccinated being the issue, because they want us who are remote and unvaccinated to come to the campus and test every 4 days. If we are the issue (sarcasm), why would you bring us on campus so often when we are remote?

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