Drew Calamaro 21
Satire Editor
On Wednesday, September 23, the Health Law Association hosted Professors Margaret Riley, Lois Shepherd, and Micah Schwartzman to discuss the implications of a vaccination mandate.[1] Professor Riley first discussed the development schedule of a possible COVID-19 vaccine. She explained the development process of a vaccine under the traditional paradigm, which often takes many years, with time allotted for manufacturing scale-up, commercial scale, and validation of manufacturing processes. The end of the process involves regulatory approval and licensure of the vaccine.
The development of a COVID-19 vaccine has been largely facilitated by the federal government’s “Operation Warp Speed,”[2] which has the stated goal of producing and delivering 300 million doses of safe and effective vaccines by January 2021. Accelerating the process, however, begets a whole host of issues. First, Professor Riley was clear to draw a distinction between emergency use authorization and regulatory approval. A safe and effective COVID-19 vaccine will not be approved at any point in the near future. Instead, a vaccine will be authorized for emergency use by the FDA, which may limit the number of people who receive it. Second, manufacturers and governments must overcome supply chain issues. There happens to be a global glass shortage, which may cause shortage in vials necessary to store the vaccine. Some vaccines also have to be kept at temperatures as low as -70 degrees Fahrenheit. There are very few companies with the capacity to ship and store vaccines at such low temperatures, and their ability to ship billions of vaccines across the globe will be put to the test.
Professor Shepherd then discussed Supreme Court precedent regarding mandates and the right to refuse medical care. First, she discussed Jacobson v. Massachusetts, a seminal public health decision that dealt with the state’s authority to mandate vaccinations. In 1902, Rev. Henning Jacobson attempted to refuse a smallpox vaccine that the city of Cambridge had mandated for its citizens. The penalty of refusal at the time was five dollars. Jacobson sued and appealed his repeated losses all the way up to the Supreme Court, which sided with the state of Massachusetts. Professor Shepherd then discussed Zucht v. King, which upheld school vaccination mandates even in the absence of an ongoing pandemic.
These cases, however, were decided in an era before the courts recognized a right to refuse medical care. Professor Shepherd discussed the possibility that a forced-vaccine mandate violates the right to refuse medical care, and also implicates the issue of whether the federal government can use quarantine precedents to justify one. She reiterated that it is important to remember that the Jacobson decision involved a fine as a penalty, whereas forced vaccinations would likely fly in the face of the medical rights developed throughout the twentieth century.
Finally, Professor Schwartzman discussed religious exemptions. Since the Jacobson decision, courts have consistently held that states are not obligated to provide religious and personal belief exemptions to vaccinations. There are currently forty-five states, including Washington D.C., that grant religious exemptions for people who have religious objections to vaccines for school children. Fifteen states allow philosophical exemptions for those who object because of personal, moral, or other beliefs.[3] States including California, New York, and New Jersey have either removed or attempted to remove religious and philosophical exemptions in the wake of recent measles outbreaks.
Professor Schwartzman also discussed the future of religious exemptions in the wake of Supreme Court Justice Ruth Bader Ginsburg’s death. Courts are usually not in the business of creating religious exemptions to vaccine mandates. No court—to Professor Schwartzman’s knowledge—has created a religious exemption to vaccines where none previously existed. However, if a conservative Supreme Court Justice were appointed to replace late Justice Ginsburg, that precedent could change if the issue comes before the Court again.
Toward the end of the discussion, I added a few words about the history of immunization, quarantine, and vaccination mandates. During the Revolutionary War, George Washington mandated his troops be immunized to smallpox through variolation, which involved exposing un-immunized individuals to a small amount of the active virus.[4] This brought troop infection rates of smallpox from over 20 percent down to 1 percent. The first mass-vaccination event in the United States occurred in 1803 in the Old Natchez District of the Mississippi Territory. In the midst of a smallpox outbreak, the governor enacted stay-at-home orders, subjecting those who violated the order and ventured out in public to a $100 fine.[5] The governor acquired the smallpox vaccine and provided it to two-thirds of the city’s 1,400 residents.
While the United States has a long history of utilizing vaccines or immunizations to achieve herd immunity, it is politically unlikely that a federal mandate is around the corner. Furthermore, as Professor Riley pointed out, a mandated vaccine should be both highly safe and effective in a significant proportion of people. Achieving these two baseline requirements in the COVID-19 vaccine may be difficult. Our best hope remains in people’s trust in a vaccine’s safety and their willingness to receive it.
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dac6jk@virginia.edu
[1] I also had the opportunity to contribute a few comments at the end of the event once the professors were finished speaking since this is my current area of research.
[2] A name Professor Riley attributed to the involvement of the military.
[3] https://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx.
[4] I did not say this in the event, but I figure you, the reader, might be interested in it.
[5] Today, this amounts to about $2,110.