New York State Gearing Up to Legislate ‘Mandatory’ COVID-19 Vaccinations

State Bar Group Calls for ‘Mandatory’ COVID-19 Vaccinations, Regardless of Objections

“Some Americans may push back on the COVID-19 vaccination for religious, philosophical or personal reasons,” says the report released on Thursday by the NYSBA, but, it says, “for the sake of public health, mandatory vaccinations for COVID-19 should be required in the United States as soon as it is available.”

By Jason Grant
New York Law Journal

Citing a robust collection of federal and state case law, a New York State Bar Association task-force group on Thursday said it should be mandatory for all Americans to have a COVID-19 vaccination, when one is available, including those who won’t want it for “religious, philosophical or personal reasons.”

The one and only exception, says the bar association group’s report—which calls for legislation to be enacted—should be for people who shouldn’t medically have the vaccination, as directed by their doctors.

Making a legally backed argument on pages 60-63 of a newly released report on the “unique” legal and ethical issues brought forward by the global pandemic, the Health Law Section of the bar association writes that “some Americans may push back on the COVID-19 vaccination for religious, philosophical or personal reasons,” but “for the sake of public health, mandatory vaccinations for COVID-19 should be required in the United States as soon as it is available.”

“Mandatory vaccinations are supported by the authority of the state police power when the vaccinations are necessary to protect the health of the community,” the group writes in the report, while citing the 1905 U.S. Supreme Court decision in Jacobson v. Massachusetts.

Pointing to several constitutional law-focused cases, including the Supreme Court’s 1990 decision in Cruzan v. Director, Missouri Dept. of Health, the group also says, “Constitutional challenges under the religious freedom clause under the First Amendment and under the substantive due process clause of the Fourteenth Amendment have failed, when the individual interests are not strong enough to outweigh the public benefit.”

The 84-page report—covering topics ranging from the call to adopt uniform standards for allocation of personal protective equipment and ventilators when resources are scarce, to “action steps” to help fight against health-care system inequities affecting the nation’s poorest and most “vulnerable populations”—was produced by a 13-member task force appointed by the Health Law Section. On June 13, a governing body of the bar association will vote on whether, as a full organization, to adopt the task force and health group’s recommendations, including  the stance on COVID-19 vaccinations.

“As the [COVID-19] crisis began to unfold,” says the report, bar association president Hank Greenberg asked the section to prepare a report on COVID-19-related legal issues. The task force, staffed by all lawyers and led by Mary Beth Quaranta Morrissey—an attorney who also holds a master’s degree in public health and a PhD in gerontological social work research, according to her LinkedIn page—met twice weekly from March 13 to April 24. The group consulted with medicine and bioethics experts “on issues of concern,” it added.

In its section on legal and ethical issues surrounding the potential controversy over which Americans should be vaccinated for COVID-19, assuming a workable vaccine is developed, the health group, citing state case law, wrote that New York’s courts “have found that religious, personal or ‘unsupported … medical literature’” are not persuasive.

The report also said that “healthcare workers and parents of unvaccinated children have unsuccessfully challenged compulsory vaccination on administrative law grounds—questioning the NYS [New York State] and NYC Department of Health’s authority in mandating flu and measles vaccinations, as well as challenging the regulations as arbitrary and capricious.”

“The courts found the policies mandating that healthcare workers be vaccinated for influenza, and children vaccinated for measles during an outbreak, were not arbitrary and capricious and the regulations were promulgated under proper authority,” says the report. It also notes that “on June 13, 2019, the religious exemption for vaccinating school-attending children was repealed.”

The report states, “The gravity of COVID-19 presents compelling justification for State legislatures and Congress to mandate a COVID-19 vaccination.”

In an “Executive Summary” section, the report notes that “over 22,000 New Yorkers have lost their lives to date, based upon New York State Department of Health data, … reported through the period ending May 13, 2020.”

It adds that “in addressing the legal and ethical issues confronted by the health system, we must not forget the human face of COVID-19, the persons, families and communities affected by the pandemic, and the unspeakable assaults on the fabric of human life—loved ones dying alone in sterile hospital rooms, unemployment and food insecurity, the loss of sociality, and depths of bereavement and despair unknown in generations, at least in the western world.”

The report is dedicated, it says, to “New York’s health care workers and workers in service jobs on the front lines of the pandemic.”


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