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 thin?

Gostin: Well, you know, I feel particularly strongly about mandates in healthcare settings because, of all occupations, doctors, nurses and other health workers have absolutely the highest duty to protect each other and to protect their patients. There is no ethical justification for a doctor, nurse or other health worker to come into hospital and be in close proximity to highly vulnerable patients who put their trust in them. And then abuse that trust by risking transmission of a potentially dangerous or deadly infectious disease. That’s not a liberty that health workers have or should have.

Marshall: If you can’t even convince all healthcare workers or those in a hospital setting to get a vaccine, how are you expected to convince, even with a mandate, those who look to the hospital workers for guidance to follow through with a mandate?

Gostin: Well, you know, that’s another reason to require vaccines in hospitals because the public looks up to them as a model. And if your doctor’s not vaccinated, if your nurse’s not vaccinated, then you’re not gonna want to be vaccinated yourself. But, you know, that’s the beauty of vaccines. You don’t have to convince somebody, you’re requiring it.

And behavior is a very interesting thing. There’ve been a lot of behavioral analyses that show that people behave in ways that are the easier way to behave and vaccines become the default or the norm, so that everywhere you work, you learn or you recreate, or you travel, you have to be vaccinated, then you’re going to get vaccinated.

Behavioral study after behavioral study shows that.

Marshall: It’s the path of least resistance

Gostin: Now you have to make vaccines the easier choice, the expected choice.

Marshall: And legally you believe and said this earlier, that it’s on solid legal footing. Let’s talk about why you believe that and where we might see some of these legal challenges.

Gostin: Okay. Well, let’s start by bursting a myth.

Marshall: Okay.

Gostin: You know, there’s a myth that President Biden has the power to issue a nationwide vaccine mandate. He doesn’t. The federal government does not have broad public health powers. States and cities absolutely could require mandates for all residents in their city or state.

They have what’s called broad police powers or public health powers that are unfettered. As long as there’s good evidence that it prevents dangerous infectious disease, they can do it. The president can not. The federal government is a government under our constitution of limited powers. And so the president has to use limited tools, but he has, and he’s done it in a very clever way.

The most controversial of his various mandates was the mandate for businesses with employees of a hundred or more people. It’s been called an overreach, authoritarian, and a presidential unilateral action. But the truth is, it’s the exact opposite of that.

President Biden isn’t acting in a weak constitutional way. He’s actually operating at the very height of his presidential powers because he’s not acting unilaterally. He’s acting with a specific authorization of the Congress of the United States. In 1970, Congress passed the Occupational Safety and Health Act [OSHA] precisely because there was a weak patchwork of state worker safety laws.

And it gave the president, through the Department of Labor, the power to set minimal national uniform standards. And he’s using that standard to require vaccines or weekly testing in the workplace. And he’s doing so not on his own back, but with full authority of the Congress of the United States.

Marshall: Professor, has that rule been used before?

Gostin: Yes, but not for vaccines.

Marshall: What was it used for?

Gostin: It’s been used for bloodborne pathogens for AIDS, and it was used for personal protective equipment and for hospitals during COVID. It’s not unusual for OSHA to set up a safety standard for the healthcare setting.

You can absolutely do it to protect against the threat of an infectious disease. Remember, we are in an emergency, it’s not a pretend emergency. We’ve got a very infectious Delta variant. People are coming back to work after a year and a half in droves, and the chances that they would spread SARS CoV-2 in a workplace with many unvaccinated workers is high. The risk that they have is every great as the hazard of a workplace injury. So there’s no reason why it should be any different.

Marshall: But many are worried about it setting precedent. Do you see it becoming a precedent in, not necessarily another pandemic, but for other kinds of vaccines?

Gostin: It’s not a precedent, legally. I mean what OSHA does, it doesn’t have precedential value. But what I will say is that it should be a precedent if there were a true health crisis. And we needed a vaccine to protect the workforce. I can absolutely foresee the OSHA would do that in the future, and they should.

Marshall: So you mentioned earlier, flu vaccines being mandated in hospitals. What makes this one more contentious for those employees looking at whether or not to follow through and get it and keep their job?

Gostin: The truth is that COVID, everything COVID, has been politicized, like no other disease in our history, not even AIDS. And so yes, it’s politically contentious. There’s a lot of loud noise in the background. People are acting in a shrill way, but it doesn’t change the facts.

The facts are clear and the facts are facts and all the controversy doesn’t change them. And the facts are these: that we have a highly infectious disease that’s killed over 600,000 Americans and is climbing every day. The facts are that this is one of the safest, most effective vaccines in the history of vaccination in America, and no amount of disinformation or artificial political controversy is going to change those facts.

Vaccines work. Vaccines save lives. They’re not against religious tenets or American values. In fact, the core value of religious belief is life, and vaccines save lives. The Pope urged vaccines. We’ve had vaccines ever since George Washington in America.

And, there really is very little excuse other than a lot of political bluster. Now, I’m not only gonna lay this at the hands of the political right. Although a lot of it, if not, most of it does belong there. But, you know, sometimes the political left tries to blame and shame those who are unvaccinated.

Here, I just say this, you know, vaccines are not Republican, Democrat, progressive, liberal, or conservative. They’re just a scientific tool.

Marshall: But they’re also not without controversy, professor. I mean, we have VAERS.

Gostin: Well, yeah, anything is controversial. I mean, masks have been controversial.

Marshall: But vaccines have a history of being controversial and religious exemptions.

Gostin: But let me just remind you that truth is truth. Facts are facts and controversy, just because it’s controversial doesn’t mean it should be controversial. CDC has quite properly called vaccines the greatest public health achievement of the 20th century. There’s no other intervention, no other intervention that saves more lives and vaccinations.

And so they work. They’re effective. They’re safe. And the fact is, just because there are certain vocal minority, and it’s a very small minority and it’s very vocal, is against it doesn’t mean we don’t want to do this.

I’m writing an article for a medical journal right now, you know, basically talking about vaccine mandates a wider freedom because you know, we talk about freedom not to be vaccinated.

But the truth is nobody has the right to go unmasked and unvaccinated in a crowded workplace. They just don’t. Because there’s nothing part of philosophical traditions that say that you can exercise your freedom and place another person at grave risk. And at the same time, there’s a wider freedom because the vast majority of the population want their lives back. They want the freedom to go to a cafe or a restaurant with family or friends or go to a movie, without being worried and fearful of getting a lethal infection.

Marshall: That might be true, but there already are some legal cases. Correct. And do you see those making their way all the way up to the Supreme Court?

Gostin: It’s possible, it’s very possible. One already did.

Marshall: True. True. Do we think that Jacobson is settled law then? Or will they take it on again with this new court?

Gostin: Okay. So, remember, let me explode a myth again.

Marshall: Okay.

Gostin: Jacobson doesn’t apply to federal mandates, only states and cities.

Marshall: Oh, we should start a new show. Professor myth-busting vaccines.

Gostin: It will have to be a Gostin myth bust vaccine show because there’s a lot of myths out there, both legal and ethical and also from a scientific and public health and safety point of view.

But, you know, Jacobson gives states and cities ample authority to require vaccines. At the hundredth anniversary of Jacobson, which was in 2005, I wrote a long article for the American Journal of Public Health explaining how Jacobson has been upheld by the courts so many hundreds of times.

And I listed them. That it really is a super precedent. Now, of course, this is a very conservative Supreme Court. You don’t know what the court’s going to do. If the court’s going to abide by the rule of law, it will uphold state and city mandates. The question is whether the court would uphold the Biden mandate under the Occupational Safety and Health Act.

I think there’s strong grounds that they will, because he’s acting with very clear and explicit congressional authority.

Marshall: So I think the big question, professor, as we wrap up this episode, really fascinating conversation, are mandates out of Washington going to even be helpful, given the huge discrepancies in the global population vaccination rates?

Gostin: Well, on September 27th, I had an op-ed in the Washington Post talking about global vaccinations. And we’re talking about vaccine mandates in the United States. We’re now rolling out vaccine boosters as third doses of mRNA vaccines while the rest of the world, and particularly Sub-Saharan Africa have less than a 5% vaccination rate, where most healthcare workers in the world are not vaccinated, where the vulnerable are not vaccinated.

This is probably the most catastrophic, ethical and moral failure of our generation. But more than that, I think, it’s a direct threat to our national security. Because as long as you have unchecked SARS, CoV-2 that is circulating around the world, we’re going to have more dangerous variants, maybe variants that even evade vaccination protection, and they will travel to the United States.

So it’s in Biden’s interests and in all of our interests to help vaccinate the world and do that now.

Marshall: Professor Gostin, thank you so much, such a fascinating conversation.