WHAT PRICE HEALTH? Public Health and Individual Rights Face Off on Vaccine Mandate

vaccine individual rights

“There are some people in our community that are absolutely militant about vaccinating against COVID-19,” an acquaintance says to me.

I am taken aback. Mostly because just the other day another woman told me how she feels positively bullied by colleagues at work who are shunning her for not vaccinating.

There are many who are deeply relieved that vaccine mandates are being implemented at federal, state and local levels in an attempt to curb a deadly pandemic, while others are deeply disturbed that individual freedoms and personal decision-making about health care is being dictated.

In short, mandating vaccines is a loaded topic, one which many of us will contend with (or already have) in our places of work and worship, bowling alleys and eateries, over the coming months as different states and localities implement their own regulations.

On Wednesday, October 20, NYC decided to mandate vaccination for all of its city agencies and workers after months of encouraging and prodding. With 46,000 municipal employees still holding out, the Mayor said in a presser, “It’s time for everyone to get vaccinated. … Our public employees are going to lead us out of the COVID era.”

And with the new NYC requirement, they may just become those leaders, willingly or not.

Here’s a closer look at the vaccine mandates from both a legal and medical perspective. Neither of these is comprehensive, and only represent the views and expertise of the interviewees.

 

The federal government’s mandates will have an impact on a number of different spheres, most notably businesses with more than 100 employees. OSHA (Occupational Safety and Health Administration) will hold companies responsible for ensuring their employees are fully vaccinated (or tested each week). Those not in compliance will be fined $14,000. This particular mandate may ultimately affect over 60% of the workforce.

Another mandate requires many health care providers to vaccinate, and a third one is focused on federal employees who must be fully vaxxed by the end of November or face disciplinary action.

vaccine individual rights
A notice explaining that proof of vaccination is required to dine inside a restaurant, in Midtown Manhattan. (AP Photo/Seth Wenig)

A number of attorneys general from Republican states have referred to these mandates as “illegal,” threatening to take on the business mandate in court; and some governors like Texas’ Greg Abbott have tried executive-ordering the mandating out of existence. (Regional and federal powers will have to duke this one out.) Is there any precedent for such action? Schools require certain vaccinations, but has there ever been an executive mandate like this before? What are the key legal arguments for and against the mandate? And finally, will any of it hold up in court?

I reach out to Professor Dan Mallinson at Penn State (whose research examines the mechanics of policy diffusion among the U.S. states and whose areas of focus are public administration and public policy) to share some thoughts on the mandates.

As is often the case, to untangle this one you just need to follow the money.

“Biden is using the leverage of federal funding in this vaccine mandate,” he explains. “He is using Medicaid and Medicare funding, for example, to require vaccination of health care workers. He is using government research funding to require vaccination at many institutions of higher education.” He points to his own institution of Penn State as an example where vaccination is required for all faculty and students. “Further, similar to laws like Title IX, the requirements do not just apply to certain parts of the institutions that receive funding, but to everyone who works at the institution.”

As to whether there is precedent for this kind of action, he believes there is. Tying requirements to federal funding is the way different administrations have weaseled their agendas in through the back door. Or rather the bank account.

“I’d say that there is extensive precedent for the type of tool that is being used — tying requirements to federal funding — but doing so through direct executive action is less common,” he says.

“It’s important to recognize that the President cannot directly mandate vaccination for all Americans. What is happening is that he is using his capacity as head of the executive branch to attach a vaccination condition to federal funding that flows through his agencies. The expansive scope of the federal government and federal programs means that these requirements still have the potential to touch many Americans.”

While the business mandate may have a tougher time riding through the courts, Professor Mallinson says the mandate for federal workers will likely be upheld. “The President is the Chief Executive, so his mandate of vaccination for federal workers is far less likely to be successfully challenged. Especially given the fact that vaccines are now receiving full FDA approval.”

vaccine individual rights
A protest against vaccine mandates (Hannah Peters/Getty Images)

He says we can expect litigation.

“Opponents will certainly challenge the scope of the requirement. I assume they will particularly challenge the concept that all individuals at an institution that receives some form of federal funding are subject to the requirement. Again, take a university like Penn State, for instance. Penn State has determined that faculty and staff at the University Park campus are subject to the requirement because of the millions of dollars of federal research contracts at the institution. However, only part of the faculty and staff are directly engaged in that research. That said, universities derive part of their income from funded research, which means the research dollars benefit the institution more broadly than just the direct research enterprise.”

He says he is less familiar with the legality of the OSHA standard requiring vaccination or weekly testing for large employers. “The Emergency Temporary Standard [ETS] put out by the Department of Labor is meant to protect employees that are ‘exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards’ and the ETS is ‘necessary to protect from that danger,’” he explains the rationale behind the mandate. “I would imagine the first part of that requirement would be challenged in court.”

As in the part that claims COVID is “a grave danger.”

“It is certainly a new hazard,” he continues, “and an argument could be made that lagging vaccination in some industries means the ETS is necessary to protect, but will COVID stand as a grave danger?”

He notes that courts often will defer to the executive on questions of policy and that, in general, they are more amenable to actions that have followed the proper procedures. “So it is possible that if the Biden administration follows the regulatory process correctly, that courts could leave the mandates alone. But that’s highly uncertain.”

 

***

Interview With Dr. Alan Kadish

When it comes to vaccination there are many shades of opinions on the subject. Some are not particularly resistant to vaccination but wonder why they are being forced to do so when this intervention does not arrest infection and transmission. If mandating it at the expense of personal liberties is rationalized because governments have the right to protect people from others, that rationale is a bit weak given the facts. Others question why, with significant levels of antibodies detected through bloodwork, those results are ignored when, traditionally, the point of vaccination was to produce robust antibody levels.

Still more are confused why there is such fierce pushback against being jabbed when vaccination dramatically reduces COVID complications, slows the rate of transmission, is safe and approved, and is generally promoted by health care practitioners. Another contingent has observed that while the majority of doctors encourage vaccination, there is a minority of doctors who are less convinced that everyone needs to be vaccinated and who are comfortable leaving the decision up to patients to make their own cost-benefit analysis. And finally, some are happy to take the poke themselves but are hesitant for their teens to do the same, since although the short-term data looks good, and although problems with vaccinations historically make themselves known within a few months, the possibility of unknown long-term effects worries them.

This interview with Dr. Alan Kadish seeks to explore some of those questions. Dr. Kadish is president of the Touro College and University System, a cardiologist, teacher and researcher.

I would love to start off with discussing whether there is any precedent for this. Has something similar ever been mandated before in American history?

Vaccine mandates for high school, elementary school and college students are a normal part of American life. You can’t go to school unless either you have a vaccination or an exemption.

[With the COVID-19 vaccine] it is a broader indication, but to be honest there’s nothing fundamentally new about a vaccine mandate; we’ve had vaccine mandates for decades.

This is just more sweeping than other ones have been.

Well, that’s because with the pediatric school vaccine mandates there is generally close to lifelong immunity, so once you get it when you’re a student, you are covered. Everybody that has gone through school has had to complete the vaccine regimen.

vaccine individual rights
Dr. Alan Kadish

I guess when it comes to this topic, most people have this underlying question of why mandate it if, at this point the delta variant is still pretty contagious. Vaccines aren’t fully protective against it, it’s still transmissible, so what exactly is the goal? Are we trying to protect the individual, are we trying to protect broader society? … Because it doesn’t seem to be totally effective.

The answer is both. You’re trying to protect the individuals and you’re trying to protect broader society. I think Israel has been about six to eight weeks ahead of us in terms of vaccination and learning about the results of vaccination. So a lot of what we know is based on Israel, and I think what was discovered there was that the Pfizer vaccine in particular loses effectiveness, to some extent, by six months or so.

The best data we have from Israel, and it’s still evolving, is that once the booster shots were given, people started being protected and rates of COVID have gone down. So one of the challenges of course about COVID in general here has been that this is brand new and because of the lethal nature of the worldwide pandemic when millions of people having died, we have to make decisions before we have complete data and we’ve had to try to be nimble in evolving recommendations. I don’t think the medical establishment has always done a good job, but I think it’s probably not fair to say that the mandatory vaccination policy hasn’t worked. I think we have evidence that it’s working, but that people who got Pfizer and now, to some extent, Moderna, need a booster shot at six to eight months to continue to maintain immunity.

In medicine, there are rarely absolutes. The data show that, while transmission can still occur after vaccination, the rate of that transmission is much lower. Vaccination will reduce the individual’s risk of serious illness by at least 90% and make it much less likely to spread it to others.

Do boosters significantly reduce spread among the vaccinated? Prevent breakthrough infections?

The answer appears to be yes to both. Breakthrough infections are reduced and the ability to spread the virus is also reduced. Boosters overcome the drop in immunity that becomes significant six months after vaccination.

Another question. Maybe this is because public policy is kind of like a blunt instrument and seeks one-size-fits-all solutions, but why is evidence of antibodies not acceptable, why just vaccination?

So that’s an area where I think we authorities have had to deal with the fact that we don’t have data as quickly as we would like. So from a purely logical basis I think it’s reasonable to suggest that if you have high levels of neutralizing antibodies that you’ll be protected. The problem is until recently we didn’t have that data and the data that we do have now haven’t been fully reviewed. That’s why the regulatory agencies have not been willing to accept antibody levels as being equivalent to vaccination.

It’s surprising that it hasn’t been studied since antibodies to COVID-19 have been around longer than the vaccine.

No, it’s been studied extensively, the problem is, it requires long- term longitudinal follow-up and that’s what we’re just getting right now in terms of the durability of resistance to infection.

Unlike in the vaccine studies where you have a cohort of patients who you’ve identified to get the vaccine and study them carefully, you don’t have the same kind of controlled trial for people who’ve had COVID and have antibodies.

It could be that one could argue that particularly in the United States we should have done a better job collecting those data prospectively and I agree with that. I think in trying to respond to a pandemic that’s been sudden and difficult not everything’s been done right. And getting better data on the protection of antibodies is something that, in retrospect, we should have done sooner.

The paper from Israel, which has some of the best data, is just being reviewed now. There are some weaknesses to the study; and it still needs to be reviewed and published.

…I think people are still hesitant to use antibodies officially as being equivalent to vaccination. If you ask me what I think, I think once we look at the data in a couple of months, it may be that we will get there, but we’re not there yet.

Just as a final question, can you speak about religious exemptions? What would be the line of argument to get a religious exemption from the mandate? How exactly do you claim a religion doesn’t allow vaccination?

Okay, so religious exemptions have been part of both state and federal law for the kinds of vaccination mandates that I told you about before, so religious exemptions are not new. If you’re a student, you have the ability to get a religious exemption.

New York State law and federal law are a bit different about this, but the essential factor is that someone has to say that they have a deeply held conviction against vaccination based on their religion.

Do you have to prove that in any way? Bring evidence that there’s some kind of religious basis for it?

So that’s complicated. I’m basing this on New York State law. If you have a deeply held religious belief, then it’s accepted.

For example, one Catholic University has turned down Catholic religious exemptions on the grounds that the pope is vaccinated. L’havdil, in Judaism, of course, things are a little bit more complicated because we don’t have a single central authority that is acceptable to everyone, although Gedolim like Hagaon Harav Chaim Kanievsky, shlita, has taken the vaccine and urged others to do so as well. Most rabbis I would say believe that there is no basis for it, but there are some who disagree. And that’s why it’s complicated.

Okay, interesting, so you don’t have to bring a letter from your rabbi if you want to get an exemption.

A letter from a rabbi would be strongly supportive of the idea that you have a basis in established halachah for a religious exemption… and would probably go a long way.