Covid Vaccine Mandates: Is It Time?

https://www.nytimes.com/2021/07/27/opinion/vaccine-mandates-covid.html

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The summer of 2021 was supposed to be something of a coronavirus finish line for the United States. Instead, it has so far only marked the beginning of yet another surge, fueled by the Delta variant and abetted by a stalled vaccine drive: In just the past four weeks, case rates have more than quadrupled, to more than 56,000 per day, and hospitals in some regions with low vaccination rates are once again buckling under the strain.

A growing number of leaders in government, medicine and business are signaling that the era of trying to entice the unvaccinated with free beer and doughnuts is over. In quick succession on Monday, New York became the first major city, the Department of Veterans Affairs the first federal agency and California the first state to issue vaccine requirements of varying stringency for their employees.

Are vaccine mandates the right way to prevent another terrible wave, and how would they even work? Here’s what people are saying.

The United States has made use of vaccine mandates since before its founding, but they can take many forms.

The employer mandate

Since the 2009 H1N1 flu pandemic, the Equal Employment Opportunity Commission has held that employers are allowed to require their employees to receive certain vaccinations, provided they are offered reasonable accommodations based on religion or disability.

Complicating matters, though, the Food and Drug Administration has authorized Covid vaccines only for emergency use. Many legal experts have interpreted the language of the 2004 federal law that governs emergency use authorization to mean that mandatory Covid vaccination would be illegal until the F.D.A. grants full approval, which according to President Biden won’t happen until “sometime maybe in the beginning of the school year, at the end of August, beginning of September, October.” Some public health experts have criticized the F.D.A. for what they see as its sluggish pace.

The E.E.O.C. has repeatedly said that the law doesn’t prohibit employers from issuing mandates, but many companies are still shying away from doing so to avoid lawsuits. “I think once the vaccines go through full F.D.A. approval, everything should be on the table,” Andy Slavitt, who stepped down as President Joe Biden’s Covid response coordinator last month, told NBC.

The school mandate

Since 1905, when the U.S. Supreme Court let stand a Massachusetts law that levied fines against people who refused smallpox inoculation, the legal system has routinely upheld the states’ authority to enforce vaccination. It is because of that precedent that all 50 states can and do impose school immunization requirements. More than 500 colleges and universities have also issued Covid vaccine mandates so far; one was upheld this month by a federal court.

But while schools appear to be on firm legal ground here, children only 12 or older can currently get inoculated. Pfizer, which is on a faster timetable than Moderna, expects to have clinical trial results for the 5-to-11-year-old group in September, with results for children aged 2 to 5 shortly after that. In each case, it will take at least a few weeks for the F.D.A. to review the data.

The social mandate

Several European countries are starting to make participation in public life more difficult for the unvaccinated. France, for example, passed a law that compels people to get a health pass — known in Italy as a “green pass” — showing they have been vaccinated or recently tested negative if they want to enter social venues, including restaurants, movie theaters and sporting arenas. These establishments would then have to enforce the rule or be fined.

In the United States, such a policy seems unlikely: Several states have barred businesses from requiring so-called vaccine passports. At the same time, there are signs that businesses in other states are warming to the idea.

The government mandate

While states have broad authority to mandate vaccines under the Supreme Court’s 1905 precedent, the federal government’s authority to do the same outside of the military has never been tested in court. In any case, the Biden administration has said that it has no interest in imposing a federal mandate.

There is a straightforward ethical argument to be made for vaccine mandates: Herd immunity is a collective good and its absence a collective harm, so vaccination cannot be a matter solely of personal choice. “What is your liberty worth if you tell me you don’t want to get vaccinated?” President Emmanuel Macron of France told reporters recently. “And tomorrow, you infect your father, your mother or myself. I am a victim of your freedom.”

It’s an argument that even many libertarians give credence to. And it’s especially strong in the case of medical workers. “A staggering 40 percent of workers at nursing homes and other long-term care facilities remain unvaccinated,” Zeynep Tufekci writes in The Times. “This is terrible, considering that the elderly, even if vaccinated, would be expected to have more breakthrough infections. People may have a right to take their chances with an infection but not to risk transmitting the virus to vulnerable others.”

The costs of a stalled vaccine drive aren’t just medical. “Shame on us if we sit here in July and don’t do something to increase the vaccination rates and then we can’t open schools or have a situation where, God forbid, the economy takes another hit because businesses have to shut back down,” Kathleen Sebelius, a former Health and Human Services secretary, told NBC.

And in practice, vaccine mandates have a proven track record. “Nearly all major infectious diseases in the country — measles, mumps, rubella, pertussis, diphtheria and more — have been managed through vaccine mandates by schools,” Aaron Carroll writes in The Times. “The result is that the vast majority of children are vaccinated, and in time, they grow into adults who are vaccinated. That’s how the country achieves real herd immunity.”

In the few places where Covid vaccine mandates are in place, they have so far been effective. In France, for example, The Times’s Paris bureau chief, Roger Cohen, reports that its new law “spurred both protests and an extraordinary surge in vaccinations.”

Some argue that herd immunity is too diffuse a collective good to justify the curtailment of individual liberties. “Forcibly injecting substances — attenuated microbes or otherwise — into someone else’s body cannot be justified as an act of self-defense, because there is no way to determine with certainty that the person will ever be responsible for disease transmission,” Jeffrey Singer told the libertarian magazine Reason in 2014.

Bioethicists, for their part, tend to favor a middle path: As Rachel Gur-Arie, Euzebiusz Jamrozik and Patricia Kingori write in the journal BMJ Global Health, “Ethical debate on vaccine mandates consistently suggests that unless all other reasonable means have failed (or are likely to fail) to increase vaccine uptake and/or reduce disease transmission by other means to an acceptable level, mandates should not be implemented.”

And the United States has not exhausted all other means of increasing vaccine uptake. Of adults who remain unvaccinated, about half say they are completely unwilling. (Even within that group, some say they would comply if required to do so.) But the other half are merely hesitant and “may come around with the right persuasion from people they trust, while still others plan to be inoculated but say they have just not had the chance,” The Times’s Apoorva Mandavilli explains.

Vaccine hesitancy is a difficult problem to solve because it has no single explanation and cuts across constituencies. To be sure, the biggest absolute divide is partisan: Nationwide, 86 percent of Democrats have had at least one shot, compared with 52 percent of Republicans.

But in most states, working-class, Black and Hispanic people make up a disproportionate share of the unvaccinated. “Many marginalized groups are leery of a government that has failed them time and again,” the Times editorial board writes. “Some people have been stymied by a lack of paid leave or by transportation issues or by simple misunderstandings.”

Reaching these disparate groups is likely to require different strategies:

Tufekci argues that the federal government should deploy epidemiologists, pollsters and ethnographers “to figure out what arguments, incentives and approaches work best now and even carry out local experiments.”

Republican lawmakers have responded to the rise of the Delta variant with an abrupt shift in how they talk about the vaccine — but whether it’s too late remains to be seen.

If all else fails, the Times columnist Ross Douthat recommends paying people to get vaccinated: “If you paid $1,000 per two-shot regimen — a limited-time offer, good only through October — and 10 million or 20 million people took you up on it, it would be a rounding error in the Biden infrastructure plan, and it would probably pay for itself just in reassurances to a jittery stock market.”

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“Boosting Vaccinations” [The New York Times]

“The FDA must sprint, not stumble, on approving the Covid-19 vaccines” [The Washington Post]

“As Virus Cases Rise, Another Contagion Spreads Among the Vaccinated: Anger” [The New York Times]