The NPR Politics Podcast - The Docket: Vaccine Mandates

Episode Date: August 12, 2021

In the latest installment of the Docket, our series on legal issues, NPR's Danielle Kurtzleben and Carrie Johnson talk about vaccine mandates with Lindsay F. Wiley, a law professor at American University.Connect:Subscribe to the NPR Politics Podcast here.Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Listen to our playlist The NPR Politics Daily Workout.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey there, it is the NPR Politics Podcast. I'm Danielle Kurtzleben. I cover demographics and culture. And I'm Keri Johnson, the national justice correspondent. And we have a special episode today. This is The Docket, our ongoing series where we look at the big legal questions of the day. Today, we are talking about something very much in the news. We're talking about vaccine mandates. As yet another wave of COVID-19 spreads throughout the U.S., we've seen businesses, cities, and parts of the federal government begin to require proof of vaccination. And with that comes a debate over not just the ethics of vaccination, but also legality, whether it's legal to require vaccination to do any number

of things, like get a job or go to a sporting event or a restaurant. And to talk about this, we have legal expert Carrie Johnson, but also another expert. Who have you brought, Carrie? Yeah, we have law professor Lindsay Wiley from American University here with us today. She directs the health law and policy program there. Hi, Professor Wiley. Thanks for inviting me to join you. Oh, we're happy to have you. And I guess the best place to start is with kind of a simple question. Is it legal to require vaccinations for COVID-19? I think there may be a very old Supreme Court case about this from all the way back to 1905. There is and that decision Jacobson v. Massachusetts has gotten a lot of attention over the last year and a half or so.

It's actually a decision that was very relevant to the kinds of social distancing measures and business restrictions that were used before we had a widespread availability for a safe and effective vaccine. The case itself was about a vaccination mandate. This case actually involved a pastor who had immigrated from Sweden, and I think he had a bad reaction to a vaccine years before? Right. So in the early 1900s, smallpox outbreaks were fairly frequent. And many people had been vaccinated earlier, you know, as children, but needed to be revaccinated as their immunity waned. So Henning Jacobson was one of those people, the state of Massachusetts passed a law that gave authority to local boards of health to make a decision at any given moment in response to an outbreak, that smallpox vaccination should be mandatory

for all residents of their local area. If in the opinion of the medical experts who were serving on the board, it was necessary to protect the public's health. So the city of Cambridge made that determination. They then, you know, went through the effort of outreach to get everyone vaccinated. When they came to Henning Jacobson, he objected. Now, he happened to be a pastor, but in the litigation, he did not raise religious liberty. And that's because in 1905, the Supreme Court had not yet applied the First Amendment to state governments. And so it just wasn't an option on the table for him at that time. Instead, he argued that vaccines are ineffective. He argued that they don't prevent transmission.

And he argued that they were harmful. Sound familiar? Yeah. The court described those arguments as not seeking a medical exemption, but rather reciting the alternative views that differ from medical consensus and that those arguments did not warrant an exemption from the requirement to be vaccinated. So Jacobson was actually the subject of a criminal enforcement action. The city initiated proceedings in criminal court to collect the penalty. It was $5, which Justice Gorsuch recently pointed out. He looked it up. So he thought it was important and said it was about $140 by today. That's real money.

Yeah, that's real money. In that criminal proceeding by the state, that was when Jacobson raised his arguments against vaccination. There was some indication, I believe historians have found, that he was being supported by active anti-vaccination groups at the time. We tend to think of anti-vaccination as something recent, but it has been around as long as vaccination has been around. It seems like the overarching theme from most of the jurisprudence from 1905 on has been that public safety and public health sometimes will prevail over individual desires and give way to the common good. Am I getting the overall stream of legal decisions right there. That's exactly right.

Our individual rights under the Constitution are not absolute. They can be counterbalanced by pressing public health or public safety needs. And that's true, you know, in a pandemic as it is in routine times as well. That old case we just discussed, Jacobson v. Massachusetts, talked about the power of a state. But is this analysis different when it comes to the federal government? We haven't seen President Biden issue a nationwide mandate, but is it law or politics that's causing some reluctance there? I think it's a combination of the two, actually. There are different constraints, not based on individual rights, but based on

federalism and also separation of powers. What I do think we're likely to see is some incentives and conditions on things like participation in Medicare for hospitals and maybe skilled nursing facilities, nursing homes. That's very different from the kinds of mandates that we're seeing employers adopt and that we're seeing at least a couple of local jurisdictions consider for patrons of certain businesses. And speaking of employers, what you were just talking about, private companies have really been in a big way leading the charge here on requiring vaccines. And I'm wondering if you can tell us about some history here. The COVID vaccine isn't the first or only vaccine that businesses have required for their employees. Am I right on that?

No, that's correct. Although we've typically seen those requirements limited to certain sectors where the risk of transmission is higher or where the employees are working with vulnerable populations. And so, for example, it's very common for healthcare employers to require flu shots and a whole host of other shots as a measure to protect patients, but also to some extent to protect health workers themselves. So, for example, many require hepatitis vaccinations in addition to flu shots and all of the kind of childhood vaccines that we tend to get as a condition of attending school. The other kind of common requirement applied to adults who are over the age of 18 has been university requirements, college

attendance requirements. College students in many states are required by law, not just by the option of the college to get a meningitis vaccine because of the higher incidence of meningitis outbreaks in the kind of congregate setting on campuses. And we've seen these same groups sort of lead the charge on vaccination requirements for COVID. That makes sense because some of the same concerns apply to COVID as apply to flu or meningitis. And also because these are entities, you know, employers, universities, who already have the basic infrastructure in place to impose these kinds of requirements. So it sort of makes sense that they would add COVID to the list. Well, and you mentioned universities, and that gets at a question I've really been wondering about, because Indiana University has said that it would require its students to have

proof of vaccination to attend school this fall, or students would have to undergo regular testing. But a group of students then sued, and then lower courts upheld the mandate. But this gets at the question I want to ask, which is, even outside of COVID, it's very, very common, like Lindsay mentioned, for universities to require all sorts of vaccinations. So, Carrie, what grounds do students have to challenge these mandates? Well, funny you should ask. There was just in the last week or so a very strong opinion by conservative judges on the U.S. Court of Appeals for the Seventh Circuit. And Judge Frank Easterbrook wrote that a university is going to have trouble operating when each student fears everyone else

will be spreading disease. He pointed out that universities do require other vaccinations. And he also said that not just that, universities can require students to read certain things and flunk them if they don't, if they don't write essays, you know, it sounds kind of familiar to me. But the key point here is that there are some exceptions for certain medical conditions, and some exceptions on religious grounds. And what I want to ask Professor Wiley is, what's an example of a legitimate religious argument? And how would courts balance those against these mandates, Professor Wiley? This is one of the really tricky areas for vaccination requirements. One question is whether religious exemptions are constitutionally required.

Prior to 2020, the consensus in the lower courts was that that was not a constitutional requirement. Most states offer them for school vaccination mandates. Most employers do as well for their voluntary vaccination mandates that they've adopted, even in spite of not being required to do so by law. But there have been some changes in the law, particularly in the last year, that cast some doubt on that question about whether a religious exemption is constitutionally required. We can get into that a bit more if you like. Yeah, I want to actually, are you referring here to some actions by the Supreme Court in light of religious challenges to restrictions

on worship during the pandemic? Yes, that's exactly right. So the Supreme Court in a series of what some of us call shadow docket decisions, because they don't have the same level of briefing and argument or even justification and an opinion that a regular Supreme Court decision would. The Supreme Court in a series of those decisions to sort of intervene on a sort of emergency basis to block restrictions on houses of worship and on religious gatherings have cast some doubt on longstanding precedents that govern religious liberty. It's a really complicated issue, but the court has indicated in the kind of post-Barrett era with the new majority that it is primed to limit, if not completely overturn, a decision called Smith, which was relied heavily on by lower courts to uphold a whole host of regulations, you know,

within public health and beyond public health. There are some scholars who read the court's recent actions in Roman Catholic diocese and Tandon v. Newsom and some other cases to indicate that the court is finding laws that previously would have been deemed general laws of neutral applicability to, in fact, be discriminatory and may be moving toward an environment where if there is any secular exemption to a law, then there must also be a religious exemption that the religious community must get what some refer to as most favored nation status, right? It must be treated as favorably as any secular exception allows. All right, we're going to take a quick break. And when we come back, a look at where we might see

more vaccine mandates pop up and the legal battles that will inevitably follow. NPR's Planet Money Summer School is now in session. Everything you want to know about investing from expert guest professors. New classes every Wednesday till Labor Day in the Planet government wanted to. Am I getting that right? Well, I think, I guess well-trodden ground is one way of putting it. It's, you know, the federal government does mandate vaccines for military service members, for example. It's just that their purview, the federal government's purview is narrower than the state's. I see. It is possible that there are some additional groups that the federal government could reach. Again, the kind of role of the federal government is supposed to be gap

filling. And so, you know, people, transit workers, for example, I could imagine, I haven't seen any indication that they're planning to do this, but I could imagine hypothetically the federal government issuing a vaccination requirement for airlines that are moving in interstate transit to require, you know, flight attendants interacting with the public to be vaccinated. That would fall within the kind of gap filling role of the CDC. We're actually seeing that challenged as well in a litigation surrounding the CDC's cruise ship order. And so even that is a little bit in doubt, but the limitations are just different for the federal government. It doesn't have, the federal government doesn't have what we call plenary power to protect the public's health, safety, and welfare. Instead, anytime the federal government acts, it has to point to a nexus to one of its constitutionally enumerated powers, like the power to regulate

interstate commerce. Professor Wiley, I'm going to introduce a complicating factor, or maybe it'll be a clarifying factor. I think, based on comments from Dr. Fauci and others, we're expecting the FDA to give full approval to the Pfizer vaccine sometime in the maybe next two, three weeks or so. How does an FDA approval of the vaccine play into this debate over the legality of mandates? Politically, it might make a difference to individual people who are hesitant. But in terms of the legal issues, it's an open question right now whether full approval versus emergency use authorization makes a difference in terms of legal authority to issue a vaccination requirement, you know, whether soft or hard. There's an argument that

the statute that set up the process for emergency use authorization has some language in it about informed consent for an EUA product. This hasn't been tested before because the EUA provision itself, that whole process is relatively new. Initially, there were legal experts who were concerned that it really did mean that a vaccine, receiving a COVID vaccine could not come with consequences, even for your employment or university enrollment. And plaintiffs in several cases have raised exactly this argument. In addition to their constitutional claims, they say that the statute protects them from being required to accept an EUA approved product. So far, we've had only a couple of indications about how the courts respond to this argument.

But those indications have suggested the courts are not eager to use the Food and Drug Act as a limit on vaccination mandates. as part of informed consent, people have to be informed about the consequences, if any, of declining the vaccine, which suggests that there maybe can be consequences for declining. I want to wrap up here by asking you, I guess, for a sort of prognosis here, because what we have now is businesses are at the forefront of the push of pushing vaccinations. And so what do we know about how that kind of strategy works? Do we have any sort of historical precedent? What has that told us? So I should be careful here because my expertise is in the legal constraints and ethical constraints, not necessarily on sort of evaluating the effectiveness of these interventions. But my understanding is that vaccine mandates, even relatively soft mandates that, you know, impose alternative public health measures like masking or frequent testing

on individuals, that those mandates can make a difference at the margins. I think part of what we're seeing is the response to surveys of people who have not yet been vaccinated about, you know, what would get them to change their minds. And a fair number of those survey respondents have said, I'll get the vaccine when I'm required to. You know, the question is, you know, do they really mean it? And also, you know, what would they consider being required, right? So some of these soft mandates are as little as, you know, check a box or just nod your head yes, that you've been vaccinated before you, you know, enter a business.

Or would it have to be something a little stronger than that, you know, requiring going so far as, for example, to cross-reference health department records and verify that the vaccination actually happened. But we're definitely seeing a lot of approaches from governments and businesses just trying to respond to the reasons that people are not getting vaccinated. And those reasons vary,

but one indication in those surveys of people who haven't been vaccinated is that this would make a difference. And every little bit helps. All right, we're gonna have to leave it there. But Professor Lindsay Wiley from American University, thank you so much for joining us. This has been so informative. And we will be back tomorrow. Until then, I'm Danielle Kurtzleben. I cover demographics and culture. And I'm Carrie Johnson, National Justice Correspondent. And thank you for listening to the NPR Politics Podcast.