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Foolish mandatory vaccination talk from the New York State Bar Association

Foolish mandatory vaccination talk from the New York State Bar Association

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.

Hey Mr. President: how about some quickie executive orders on prescription drug importing, stem cells, and vaccination

Hey Mr. President: how about some quickie executive orders on prescription drug importing, stem cells, and vaccination

Mr. President: looks like you’ve kept your word so far on Obamacare by signing a vague executive order allowing federal government agencies to do what they can to lower the costs or make more efficient whatever the agencies can figure out they can do without congressional approval. Hopefully that will work out.

I have a couple of ideas for some quickie executive orders, consistent with your campaign speeches or your thinking. As always, I’ll keep it short:

1. Consumers importing cheaper prescription drugs

Congress took up the issue, and since both parties are in the Pharma’s pocket, it once again declined the chance to help people by allowing them to import prescription drugs from Canada and other places where Pharma sells its products for a lot less money. You recently took Pharma to the woodshed in a recent tweet. On behalf of the people, thanks. In your inauguration speech, you railed against Congress for not watching out for us. Here’s my suggestions:

First: we need a standard Trumpian tweet excoriating Congress for protecting Pharma by its recent action in continuing the prohibition of patients from importing drugs manufactured by major drug companies which are sold for a lot less money abroad.

Second: how about an executive order ordering the FDA, DOJ and Customs not to enforce the existing drug importation restrictions. That would send a message to Pharma and Congress, as well as immediately save patients money.

Yes, you and the rest of the Republicans hassled Obama for using executive orders to circumvent enforcement of existing federal laws like immigration.

But let’s get real. That’s just an argument used by the party that doesn’t control the presidency. Further, I don’t think we should worry about little things like consistency. I’m guessing you’re okay with that, especially if some minor inconsistency can benefit the people who supported you, and trust me, your working class supporters will really appreciate having the option of cutting their out-of-pocket drug costs by half or more. You do this, and I guaranty your approval rating will jump-up a few points.

2. Stem Cells

Don, first thing I’d like you to do is call Rick Perry, and ask him about his experience in getting a stem cell transplant for his back problems. FYI, his stem cell procedure was flat-out illegal under federal law. But he was the Governor, so who was going to stop him? I’ve heard it helped him alot. If so, why shouldn’t the tens of thousands of patients who could similarly benefit from stem cell treatments get them? Do you really have to be a Governor to get the state-of-the-art treatment?

I’ve covered the FDA’s regulations and the technicalities in numerous prior posts,

But the bottom line is that your FDA severely limits access to stem cell treatments, and you should do something about it immediately, even before the FDA Commissioner is identified or sworn-in. So here’s what I suggest:

First: A quickie executive order that whatever draft guidance documents concerning stem cells (and there are currently four, explained in prior posts, see above) are on hold, and no final guidance documents will be issued except on the approval of your FDA Commissioner.

Second: Another executive order that as matter of enforcement policy, neither the FDA nor the Department of Justice will take any action against a clinic which removes stem cells or any other human tissue from a person, and reinjects or reimplants that tissue into that person. And the enforcement policy should make clear that it applies even when the stem cells are other materials are expanded or cultured, which is the procedure which was so successful on Rick Perry. If Rick Perry could do it, let the rest of us have access to this stuff. (And BTW, there is less of or no consistency problem here since the regulations actually allow many stem cell treatments; it’s just the FDA has decided in its infinite unwisdom to try to stop almost all of these procedures.). The institutional stem cell players and the aforedescribed media cheerleaders won’t like it, but your supporters and many, many others will love you for it.

3. Vaccination

First: Let’s get moving on the Bobby Kennedy Jr. Vaccine/Autism thing. Maybe this could be done by executive order as well. Hell, it’s just a commission. I know you received some pushback from the institutional vaccine pushers and their cheerleaders in the media, but there is a groundswell of support for Bobby and the Commission from the people, and per your speech yesterday, that’s what important to you.

Second: as you probably know, federal agencies have some kind of internal oversight, referred to as the “OIG” (Office of Inspector General). In light of some of the recent stories about cover-ups and scientific fraud at the CDC concerning the autism issue, you need to give some serious consideration to the CDC OIG position. Your pick needs to be willing to take on the powers that be in the agency. So choose wisely.

Enjoy the job, and hope you really shake things up in the health care field. It’s long overdue!

Rick Jaffe, Esq.