Vaccines and the government?

Another week, more interesting news. Here we go!

1.  Is the Russian vaccine any good? Here is what we know. The well-respected journal, The Lancet, published the following information today. Bottom line: the vaccine generated so-called “neutralizing antibodies” which is a good thing, in 76 study subjects. All 76 participants in the trial dubbed Sputnik V developed anti-Covid-19 antibodies. The levels of antibodies were similar to those seen in persons who have recovered from a Covid infection. At 28 days after vaccination, most participants also showed an appropriate T-cell response which is an important part of the immune system in addition to the antibodies for fighting off the infection. Common side effects from the vaccine included headaches, weakness and joint pain, though none were listed as severe. In the upcoming Phase 3 part of the trial, they will require 40,000 volunteers, half of whom will receive the vaccine and the other half will receive a placebo. The vaccine uses an adenovirus as the vector to deliver genetic material for the Covid “spike protein” which then generates the human immune response. This vaccine also requires two doses, each using a different adenovirus. In a very interesting development, the Russian authorities have decided to start offering the vaccine to medical staff and teachers before the Phase 3 trial is completed. In the United States, most medical authorities advise waiting until completion of Phase 3 before giving the green light for mass vaccination. Despite the fact that the Mayor of Moscow, Sergey Sobyanin, stated that he has taken the vaccine, half of Russians expressed skepticism about the vaccine. Russian vaccine skepticism was at 90% just a few months ago…
2.  What are the legal issues about vaccines? Turns out this is a remarkably complicated and interesting topic. Without being comprehensive, I will share some of the highlights. Vaccines are probably the greatest advance in public health worldwide in history. For a long time, many took for granted that everyone would understand the benefit of vaccines for children and adults and gladly accept them. History shows that there has always been a minority of the population resistant to accepting vaccines on either religious or other philosophical grounds. The anti-vaccine movement in the United States has gained so much ground in the last few years, that we have seen the resurgence of formerly vanquished infectious agents such as pertussis, mumps and measles. Here are some of the relevant legal and ethical questions:

•  Does the Federal government ever have the legal authority to force parents to get their children vaccinated, or to force adults to get vaccinated?
• What powers around vaccination are given to individual states?
• What rights do children have to get vaccinated, if their parents decline for them?
• Does the severity or lethality of the epidemic affect the state’s ability to enforce vaccination?

An article titled, “Legal approaches to promoting parental compliance with childhood immunization recommendations” by Lois Weithorn and Dorit Reiss in Human Vaccines and Immunotherapeutics 10.1080/21645515.2018.1423929 offers the following facts and observations:

• In 1855, Massachusetts became the first state to mandate that children be inoculated against smallpox as a condition for entering public school.
•  By 1963, twenty states conditioned entry to public school on evidence that children had been immunized against specific diseases. By 1980, all fifty states and the District of Columbia adopted school vaccination policies.
•  Almost all states require vaccinations prior to entry to private schools and day care centers.
•  There are three types of legal exemptions to vaccination requirements: medical exemptions, religious exemptions, and personal belief or philosophical exemptions.
•  Only Mississippi, West Virginia, and California do not provide for religious vaccine exemptions—court appeals are pending. Religious exemptions in the remaining forty-seven states vary with respect to the ease with which they can be obtained.
•  As of 2017, seventeen states had “philosophical” or “personal belief” exemptions, down from twenty-two states in 2012. These exemption policies allow parents to opt out of vaccinating their children if they certify that immunization, for example, “conflicts with … [the] philosophical beliefs of the parent or guardian,” and is contrary to their “personal beliefs.”
•  Some states, such as Oregon and Washington, have tightened the philosophical exemption requirements in response to high rates of nonvaccination, and required parents to become better informed about the benefits and risks of childhood vaccinations through consultation with a health care professional before exercising the exemption option.
•  In the landmark 1905 U.S. Supreme Court case of Jacobson v. Massachusetts, the Court held that the government has the authority to restrict the liberty of adult citizens by compelling vaccination in order to prevent the spread of a life-threatening contagious disease. The Court emphasized that “persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state.” This case dealt with the Cambridge, MA Board of Health regarding smallpox.
•  In a more recent 1990 case, called Employment Division v. Smith, the Supreme Court held that “an individual's religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”
•  Today's mandatory vaccination policies typically target children. The Supreme Court has recognized repeatedly that the government's authority to regulate the lives of children far exceeds its authority to intervene in the lives of adults. For example, parents are not allowed to withhold necessary medical treatment from their own children, but competent adults are allowed to decline any and all treatments, even if it results in death.
•  State constitutional law provides another avenue for those who oppose strict school immunization requirements. States have considerable constitutional leeway to impose requirements for childhood vaccines.
•  State courts have ordered forced vaccinations on rare and unusual occasions. For example, in 1990 the city of Philadelphia faced a measles outbreak that centered on two churches whose members did not believe in vaccination (or modern medicine generally). Nine children died from measles during the outbreak, and ultimately a judge ordered vaccination of the children of the church members over parental objections.

You may infer from the collected statements above that I have not completely answered the questions posed at the top of this section. I have not fully answered the questions because in part they remain open questions of ethics, politics and state and Federal law. There is constant tension between individual rights and autonomy, and the obligation of the state to look after the welfare of all. There is constant tension between local and state authorities and between the states and the Federal government. These tensions, in this case about vaccinations, are adjudicated over time, and tell a fascinating story of the conflicting currents running within our society.