I participated in a forum at the University of Connecticut Medical School on November 6, 2024, discussing the ethics of workplace vaccine mandates, obviously with an emphasis on the recent COVID experience. I covered the legal environment while other speakers addressed some of the science and ethics of mandates, and the interplay between a hospital system and the regulations from its state government. (For technical reasons the faces of the presenters are often not shown because the video capture prioritized the presentation slides.)
My presentation addresses the current state of vaccine mandates under US law, from Jacobson v Massachusetts (1905) through more recent decisions during the Biden administration.
The chief legal questions I raised for future consideration by courts were:
- What level of disease risk is required in order for the courts to rule fundamental rights are unconstitutionally impacted? Smallpox, Ebola, and Yellow Fever are virulent deadly diseases. What if it was Monkeypox, or a non-fatal condition? What of HPV vaccines? — would mandating those for children attract a different judicial scrutiny because the health threat is less severe? There is currently no legal test for this “threshold of threat” question.
- If a vaccine or intervention does not prevent the spread, the Ninth Circuit says there is no application of Jacobson if the vaccine does not prevent the spread of disease to others. Yet, the Biden v Missouri SCOTUS essentially ruled that the required factual connection had been made. This reveals a conflict not of law but of medical facts and how courts construe them. This is not a product liability issue (safe and effective), but a legal civil rights issue.
- All of these cases look to the medical profession for scientific guidance and suggest that the government could well exceed its authority. It is the medical community that is on the front lines of this difficult knife-edge, for patients and courts alike to look to. The legal and medical ethical issues are tightly entwined.
- The Biden court approved laws that included medical and religious exemptions. This is another gray area, and again it is largely within the province of the medical discipline. Doctors and institutions will be on the front lines employing their discretion to determine whether a medical or religious exemption is merited. Courts are likely to defer, but the removal of either or both exemptions could kick matters back to the legal department to determine whether that abridges other protected liberties.
The video is available here—access with the passcode R3B5u@E6.
(For technical reasons, the faces of the presenters are often not shown because the video capture prioritized the presentation slides.)
