Requiring the COVID Vaccine: The Legal Battle Ahead

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Mandating the COVID-19 vaccine has been called presidential overreach, un-American, even unprecedented, despite a long history of requiring vaccines to prevent other illnesses. In August, President Joe Biden mandated employees at all companies with more than 100 employees get vaccinated or undergo routine testing. And now, beginning in early November, federal agencies can enforce that same mandate on federal employees.

Mass firings have occurred; but more often than not, employees chose to get the shot over losing their job.

On this week’s episode, Lawrence Gostin, JD, professor of global health law at Georgetown University, author of the new book “Global Health Security,” and director of the World Health Organization Collaborating Center for National and Global Health Law, joins us to discuss where we may see legal challenges and if those challenges have a sound footing.

The following is an abridged transcript of his interview with “Track the Vax” host Serena Marshall:

Serena Marshall: It’s really kind of fascinating how the government has now stepped in roughly 18 months into this pandemic.

Lawrence Gostin: Yeah. I mean, Joe Biden has had a complete change of heart. Early in his term, he was really very adverse to the vaccine mandates. It was a political third rail for him, but then when he started to see vaccine rates in the United States plateau; in fact, we’re now just barely in the top 50 in per capita vaccine rates around the world, which is really remarkable.

Then he saw hospitals filling up with the Delta variant. He had a complete change of heart and he set in motion the most sweeping federal vaccine mandate in the history of the United States. But I think it’s entirely justified and on rock-solid legal ground.

Marshall: It’s interesting professor, how you called it also the most sweeping, though, in American history, because folks might look back at polio or vaccine mandates for schools and think: “Well, haven’t we been here before?”

Gostin: Yes, and no. You know there are several Republican politicians who’ve said that vaccine mandates are un-American. But they’re not un-American at all. In fact, they’re very much part of the tradition, culture and values of America. We’ve actually been mandating vaccines even before Edward Jenner discovered vaccines, if you can believe it.

Marshall: How’s that work?

Gostin: Well, how that works is that Jenner’s discovery was that if you inject the pus from a person who’s been sick with cowpox, you can prevent smallpox. That was the beginning of the era of immunization that Louis Pasteur then forged ahead with later on. And then General George Washington, even before that, required what’s called inoculation of the Continental Army under his command, which is basically getting a dried up patch of small smallpox, scratching it off, and then scratching it back on to another soldier, a healthy soldier. And that was called inoculation even before Jenner.

And he actually commented about a Virginia law that restricted inoculations for smallpox. He condemned that law and said instead he would far prefer a vaccine mandate, which was enforced strongly, as he said. And ever since then, in the colonial era, through to the early part of our republic. And up to today, we’ve been having vaccines. But these vaccines have primarily been at the state and local level. President Biden has done something unprecedented because it’s at the federal level.

Marshall: And you mentioned that this was in response to rising Delta cases. And the fact that much of the country was not following through with getting a vaccine, but how much of it had to do with that and his timing; and how much of it had to do with the fact that the Pfizer vaccine was finally given full approval by the FDA?

Gostin: Well, I don’t think he was overly influenced by that for a couple of reasons. First, the Equal Employment Opportunity Commission and the Department of Justice had both ruled that mandates could occur even under an Emergency Use Authorization. The United States has, ever since we’ve rolled out COVID vaccines, they have been under an Emergency Use Authorization. But we’ve acted as if it was fully approved, right from the beginning.

Every public health agency and even the President of the United States has urged population-based vaccinations. They’ve been proven safe and effective. They’ve been given to hundreds of millions of Americans and billions of doses globally.

They’re safe, they’re effective. And they were under an Emergency Use Authorization. They are now. I think the explanation, and I talk frequently with White House staff, I think the explanation was a frustration on the part of the President. That he’d tried getting, you know, very lucrative incentives.

Gave a free vaccine. He gave time off work for a vaccine with paid work leave. He’s used the bully pulpit, and none of that worked fully.

Marshall: People are resistant to it.

Gostin: Some people are. They’re really are resistant. And they’ve called it un-American. They’ve called it an overreach. They’ve called it authoritarian, but it’s none of those things.

Marshall: But professor, we did see all of those incentives, even some states giving you an entry into the lottery. And those, as you mentioned, didn’t seem to work. Is the mandate accomplishing its goal of getting more vaccines in arms? I mean, we hear people threatening to quit hospitals, staff shortages in places like New York because of the mandate.

Gostin: Yeah. I mean in my view, they do work. And they’ve been proven to work time and time again. I mean, there’ve been studies with influenza vaccine in hospitals, for example, really systematic studies that show that when vaccine mandates are in place in hospitals for influenza, they consistently have much higher vaccination rates than those that don’t have mandates. School vaccine mandates have been widely attributed to both boosting and maintaining high childhood vaccination rates. Houston Methodist Hospital was the first hospital in the country to require a COVID-19 vaccine. They now have over a 99% vaccination coverage. At Georgetown University, we mandate vaccines for our students, faculty and staff. We also have over 99% vaccination coverage.

Vaccine mandates actually do work. People just roll up their sleeves and get the jab.

Marshall: Why is that a different response than the mandates for masks? You had mask mandates and people had a lot of, a lot of things to say about those.

Gostin: They did. The question is whether, you know, it’s a mandate and it’s all talk or it’s actually implemented and enforced.

For places that actually implemented mask mandates, they work. Say if a grocery store chain had a policy that no shoppers can come in unmasked and if you don’t, you can’t come in and shop here. You go into that shop and everyone’s wearing a mask. But if they aren’t enforcing it, nothing’s going to happen.

Marshall: The enforcement mechanism here is…you lose your job.

Gostin: You lose your job. Yeah, absolutely. You lose your job or you have to go through a very rigorous process. Testing and masking protocol, which most people don’t want to do.

Marshall: But you mentioned all of those hospitals that have seen very high vaccination rates, your hospital included. But there have also been hospitals that have implemented mass firings — from a Delaware hospital that fired 150 employees, to another one in North Carolina, 175 workers for violating their vaccines.

And it’s happening at the same time that hospitals and nursing homes are bracing for staff shortages as state deadlines arrive. So how much of this is risking the need for healthcare workers at a time when they’re already stretched so…

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