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Once There’s A Coronavirus Vaccine, Will We Be Legally Required To Get It?

Sona Sulakian
Sona Sulakian Intern
A Bay Area native, Sona Sulakian is a rising 2L at USC Gould School of Law.
  • Image by
    Gerd Altmann from Pixabay
will vaccines be required
Last week, Dr. Anthony Fauci said that he fears a Coronavirus vaccine may not be enough to achieve herd immunity because so many Americans oppose vaccination. Dr. Fauci expects a coronavirus vaccine to be 70-75% effective. 

Three Coronavirus vaccines are set to reach large-scale clinical trials in the coming three months. Jefferies, a major biotech investing research firm, predicts that a vaccine for COVID-19 may be approved before the November election.

Once there is a Coronavirus vaccine, many have wondered if we be legally required to get it. We spoke with two doctors, who have opposing viewpoints, about if a vaccine should be legally mandated. 

We should be legally required to get the vaccine

Dr. Lauren Grossman, an 
Assistant Professor of Emergency Medicine at the University of Colorado School of Medicine, and medical director of the University’s Integrative Medicine Center, believes that if we ever want to make the Coronavirus less deadly, we need at least 80% of the population to develop immunity, either through immunization or exposure to the virus. When a large enough portion of the population is immune, the infection won’t necessarily be eradicated. But it will be low enough to protect most people.
Dr. Grossman urges the adoption of a federally mandated vaccination policy rather than a state-level one. “Our society is very mobile—more so than in the 1918 Pandemic—and given all of this movement, I don't see how a hodge-podge of state level vaccination policies will help us achieve herd immunity, which would be best achieved as a nation,” she says.

She also cautions against further dividing the country with a motley of (politicized) state policies. 

The lack of uniformity of state policies would also raise various challenges. Dr. Grossman fears there will be restricted travel between states, divided between those that have achieved herd immunity and those that haven’t? She jokes, “I can just see it now—Southwest starts offering vaccinations on flights.”

In 1905, the Supreme Court confirmed the constitutionality of state-mandated vaccination laws in a smallpox case. In Jacobson v. MA, involving a man who had refused vaccination, the court held that individual liberty takes a backseat when the common good is at stake.
Provided that courts believe that this over 100-year-old decision applies today in the midst of an unprecedented public health crisis, states will likely have the power to institute a mandated vaccination plan.

There's some evidence the Jacobson case still has influence. Earlier this year, a US appeals court used the Jacobson decision to allow Texas to prevent doctors from performing abortions because of the current pandemic. Speaking for the majority, Judge Stuart Kyle Duncan writes, “Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.”
Dr. Grossman also advocates the mandatory vaccination of school children and workers in direct-contact jobs. Although this policy would be controversial, Grossman says, “The enormity of the COVID-19 pandemic demands that the welfare of the community take precedence.”
For example, some states have already begun to mandate testing for direct-contact workers. For example, New York mandated Covid-19 testing every 14 days for direct-contact workers.
We shouldn't be legally required to get the vaccine

While safe and effective immunizations may be desirable, Dr. Vern Saboe Jr., a chiropractor and the director of government affairs for the Oregon Chiropractic Association, says, “Whenever there is a risk of adverse events to any medical procedure, there must be a choice.”

He worries about the safety of previous Coronavirus vaccines  (Covid-19 is just one type of Coronavirus. There have been others).  Pharmaceuticals and government agencies have faced various safety concerns dating back to the 1960s in creating a vaccine for this kind of virus.

In March, Dr. Hotez, co-director of the Texas Children’s Hospital Center for Vaccine Development in Houston and dean of the National School of Tropical Medicine at Baylor College of Medicine in Houston, stated in front of Congress that some of the children in the 1960 studies who got the vaccine actually fared worse than those who didnt.  Two of the children died. The vaccine program was ended. However, the Gates Foundation recently revived it. 

Saboe also worries about the hurried timeline to release a Coronavirus vaccine. In response to governmental pressures, some vaccine makers are bypassing the usual animal trials to enter phase 1 human trials.
According to Dr. Saboe, “Many experts in the scientific community have expressed concerns that these shortcuts eliminate very important safety measures and this is especially inappropriate considering Coronavirus vaccines’ horrible track record.”
Here are some examples:
  • In May, the vaccine developer Moderna reported 3 of 15 human guinea pigs in the “high dose” cohort suffered “serious adverse events.” Yet this did not prevent Moderna from moving on to larger human trials.
  • The Oxford Vaccine Group Sinovac, who used macaque monkeys, reported the vaccine was effective. But the raw data didn’t really support the claim. 
Dr. Saboe also worries that no one will be held accountable if the vaccine causes more harm than good. In March, HHS Secretary Azar invoked the PREP Act, which has been rarely used since becoming law in 2005. Under this declaration, drug manufacturers, governmental agencies, and all others involved are wholly free of liability from any harm caused by a coronavirus vaccine.
Dr. Saboe is concerned that this situation is highly troubling. He says, "Given the pharmaceutical industry’s long history of corporate malfeasance, they've showed their willingness to place profit over public health and safety.”
Dr. Saboe believes that, “Under the above circumstances, if and when a coronavirus vaccine actually makes it to market, its administration will constitute in vivo human experimentation and informed consent must be given. They cannot be made mandatory.”
“Indigenous to the contemporary bioethical principle of informed consent is the inviolability of an individual’s right to autonomy and self-determination,” says Dr. Saboe. 
Dr. Saboe says the future isn't all doom and gloom, even without a mandatory vaccine. He believes that in the coming months, about 80% of the population will become infected with COVID-19, with few if any symptoms. “That will give them natural immunity to the virus without the need for a vaccine as this pandemic fades away,” says Saboe. “We should allow COVID-19 to spread through the healthy population achieving natural herd immunity rather quickly, while quarantining only our most vulnerable.”
Despite the federal government’s traditionally passive role in vaccination, Congress has granted broad law making and regulatory authority to federal health authorities to stop the spread of disease. Although current regulations are limited to quarantine measures, the federal government is empowered to make the necessary decisions. The moral considerations of such decisions are complex and subject to debate.
Whether through vaccination or through natural spreading, both doctors agree that herd immunity must be achieved to slow the spread of the coronavirus.

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