Who Wants To Challenge Vaccine Mandates?

In about a week, A&E is sending a 7-personal film crew to my house to film what will probably amount to a minute or two for their Origin of Hip Hop docu-series. That should be fun. But when the producer called me, he said I would have to show him my vaccination card before the crew would come in the house to start setting up. I was relieved and told him that I would also like to see the cards of each technician coming to shoot the interview. He asked if it was ok if some hadn't been vaccinated but had tested negative. I said no and he said ok, he would get a fully vaccinated crew. The exchange between us lasted less than a minute and it was completely friendly.

Luckily Siri & Glimstad wasn't involved. That's the anti-vaxxer law firm that's threatening local governments, schools and businesses who are trying to enforce vaccine mandates. Statistics look good in most of the U.S. The only states with significant new cases and are COVID-friendly Florida and Texas and only Florida has bad daily death counts-- 93 Tuesday, 70 more yesterday. Nationally, new cases are barley over 20,000 a day and death re down under 700 a day. But the pandemic is far from over. It's ravaging India and daily new cases in several Latin American countries are pretty bad, particularly Brazil, Argentina and Colombia, Chile, Bolivia and Costa Rica. France is still doing terribly and several Asian countries that were spared last year are doing badly this year, particularly Malaysia, Nepal, the Philippines, Indonesia and Thailand. Yesterday 3,842 more Indians died-- a number that is thought to be wildly inaccurate and perhaps represents less than half the dead. Over 2,200 more Brazilians also died.

The pandemic isn't over. But yesterday, Isaac Stanley-Becker reported that "legal salvos [from Siri & Glimstad] show that a groundswell against compulsory immunization is being coordinated, at least in part, from a law office on Park Avenue in midtown Manhattan. And they offer a window into a wide-ranging and well-resourced effort to contest vaccine requirements in workplaces and other settings critical to the country’s reopening-- a dispute with sweeping implications for public health, state authority and individual rights.

“The message is, ‘Maybe you should reconsider because you don’t want to end up in court,’ ” said Dorit Rubinstein Reiss, a professor at the University of California’s Hastings College of the Law. “I think that works.”

The Informed Consent Action Network [ICAN], a Texas-based nonprofit group founded by former daytime television producer Del Bigtree that campaigns against requiring vaccines, in part by citing unsubstantiated or debunked claims about their dangers, has advertised Siri & Glimstad’s services and sought plaintiffs for challenges to mandates.

“If you or anyone you know is being required by an employer or school to receive a covid-19 vaccine, ICAN is offering to support legal action on your behalf to challenge the requirement,” reads an advertisement on a blog run by Children’s Health Defense, a group founded by Robert F. Kennedy Jr. that spreads what Kennedy’s family members say is anti-vaccine misinformation.

Even before the pandemic, legal services were core to these advocacy efforts. The nearly $1.3 million paid by ICAN to Siri & Glimstad in 2019-- the most recent year for which a tax filing is publicly available-- was the nonprofit’s single largest reported expenditure.

At stake in this latest contest is whether hospitals, law enforcement agencies and others can require employees to take a vaccine that was made available in an expedited process permitted during a public health emergency-- and, likewise, whether schools may require the shots for students, faculty and staff members in the same way many require familiar vaccines for measles and chickenpox. There is little case law on the matter, with only one vaccine, for anthrax exposure, previously cleared in a similar way.

Employers are expected to cite the expansive evidence supporting the safety and efficacy of the coronavirus vaccines, as well as the extraordinary health risks created by the current emergency, said Kerry A. Scanlon, a former Department of Justice official who oversees labor and employment litigation at Chicago-based law firm McDermott Will & Emery.

Scanlon believes employers are in a strong position to defend compulsory vaccination, but he said many might shy away from it simply to avoid costly litigation.

ICAN is already claiming victory, thanks to the work of a legal team led by Siri & Glimstad’s managing partner, Aaron Siri. “Employers and schools that previously required the covid-19 vaccine have dropped those requirements,” the group declares in its ad on the Children’s Health Defense blog. “This includes an employer that did so on the heels of ICAN’s legal team challenging its mandate in court.”

Neither Siri nor his co-counsel in the North Carolina case, Elizabeth A. Brehm, responded to emailed questions. Bigtree did not respond to telephone messages. Kennedy said his organization is “working with firms all over the country” to challenge vaccine mandates and estimated that he receives “many hundreds” of inquiries each week about potential litigation.

In legal filings and letters to employers and universities, attorneys from Siri & Glimstad focus on the expedited process known as an emergency use authorization used to clear the shots during a public health emergency. Mandating a vaccine cleared that way, they argue in a complaint filed against the Durham County Sheriff’s Department, is “illegal and unenforceable.”

Their arguments go further. Pointing to the principle of informed consent, a tenet of medical ethics addressing human experimentation enshrined in the Nuremberg Code after World War II, their letter to the president of Rutgers University contends a mandate under these circumstances violates not just federal law, but also “international laws, civil and individual rights, and public policy.” Failure to rescind a requirement in Rock County, Wis., the firm informed officials there, “will result in legal action being filed against you.”

“Govern yourself accordingly,” the Feb. 2 letter advised.

...An employer can’t hold you down to get the shots against your will, said experts in health and employment law, but some believe a permissible consequence of refusal to vaccinate could, in some circumstances, be losing your job. In December, the U.S. Equal Employment Opportunity Commission said employers requiring the vaccine would comply with federal disability law and anti-discrimination statutes so long as they make exceptions for an individual’s disability or religious beliefs.

Still, most employers have avoided mandates. There are notable exceptions, including many universities, several hospitals and Delta Air Lines, which said this month that new employees must be vaccinated.

Employers will have more confidence about requiring vaccination, some experts said, once the products gain the FDA’s full approval, which U.S. pharmaceutical firm Pfizer and its German partner, BioNTech, are seeking for their coronavirus vaccine. A decision from regulators could come as soon as the fall, and other coronavirus vaccine makers are expected to apply for full approval soon.

Likewise, Kennedy said full approval will make the legal opposition to mandates more difficult. “You’d need to go to the Supreme Court and get a reversal of ‘Jacobson,’ ” he said, referring to the 1905 Supreme Court decision that found states could force residents to be inoculated against smallpox or pay a fine.

Others said the hurdle created by the emergency use authorization, or EUA, is more rhetorical than legal. “The FDA required as much for this EUA as it requires for full approval,” said Dan Troy, a former chief counsel to the agency.

But the issue has never been tested, Mello said. “Even legal scholars disagree about how to read these regulations,” she said. “There’s a great deal of uncertainty.”

...“ICAN has received numerous inquiries from its members regarding this mandate, including students attending your university, and has asked that we send you the following notice,” reads the letter to Rutgers University President Jonathan Holloway. It urged him to reconsider the requirement that students be vaccinated before arriving on campus this fall.

A university spokeswoman, Dory Devlin, said the policy stands. “Like the hundreds of public and private universities who have followed our lead, we are entirely confident in our legal and ethical position with respect to mandating vaccines in the fight against the global pandemic,” she said in an email to the Washington Post.

Princeton, too, was unmoved by the letter. “We conducted a careful review and are confident in our legal position,” said Ayana Gibbs, a university spokeswoman.

This month, ICAN updated its notice seeking plaintiffs for possible litigation, saying it is “no longer accepting cases for legal action.”

Some legal experts suggested the group may be pulling back because it has accomplished what it set out to do. Its attorneys have made their mark on the early legal contest over vaccine mandates, through commentary as well as legal communications and filings, said Reiss, the University of California professor. She noted that other lawsuits filed against coronavirus vaccine mandates “follow very closely Siri’s piece in Stat.”

Attorney-client privilege makes the extent of the role played by ICAN’s legal team difficult to determine, said James G. Hodge Jr., director of the Center for Public Health Law and Policy at Arizona State University’s Sandra Day O’Connor College of Law.

“They’re peddling specific legal arguments designed to attract anti-vaxxers and others who might be willing to listen,” Hodge said.

ICAN’s legal team remains active on other vaccine-related fronts. Earlier this month, Siri & Glimstad filed a complaint on ICAN’s behalf asking a federal court to order Health and Human Services Secretary Xavier Becerra to remove the finding that “vaccines do not cause autism” from all communication with the public.

A suit last year against Facebook and YouTube said these platforms had terminated or greatly restricted ICAN’s activities-- and offered a window into the group’s communications strategy. At stake was the group’s “ability to reach billions of potential viewers,” said the complaint, filed by Siri and Brehm, along with a California attorney, in federal court in California.

Asking the court to dismiss the complaint, Facebook and YouTube said they had acted against ICAN because it was “spreading harmful misinformation about covid-19 that could exacerbate the ongoing public health crisis.”

Stripped of other platforms to press its case against vaccines, experts said, the group is turning increasingly to the courts.

“It’s a chance to put your imprint on an early area of law that hasn’t been litigated before,” Reiss said. “And to do it in a context that fits your beliefs.”

Personally, I wouldn't patronize a business that doesn't enforce vaccine mandates. I know I'm not the only person who feels that way. In many of the politically backward states, Republican governors and legislatures have moved to prohibit anything resembling vaccine mandates. Ron DeSantis moved fast to prohibit mandates in Florida-- except in Disney properties, MAGA campaign contributors. Other Republican-led states to do the same include Arizona, Idaho, South Carolina, Indiana, Montana, Texas, Arkansas, South Dakota. These are states banning herd immunity. Yesterday, Indiana Attorney General-- far right extremist Todd Rokita-- threatened Indiana University for mandating vaccines for next semester's reopening. "This session," Rokita wrote in a public statement, "members of the Indiana General Assembly passed legislation to codify in law a prohibition on COVID-19 vaccine passports, preventing public institutions from mandating proof of vaccination as a condition for receiving services or employment. Indiana University’s policy clearly runs afoul of state law-- and the fundamental liberties and freedoms this legislation was designed to protect."

As the NY Times reported a few days ago, "In a divided nation, college vaccine mandates are mostly following familiar fault lines. As of this weekend, only 34-- roughly 8 percent-- are in states that voted for Donald J. Trump, according to a tracker created by The Chronicle of Higher Education. Nine of those were added on Friday, when Indiana University and its satellite campuses became rare public universities in a Republican-controlled state to mandate vaccines. Though the 400 campuses are only about 10 percent of the nation’s roughly 4,000 colleges and universities, experts say the political gap is likely to persist. With many colleges facing falling enrollments and financial pressure, the decision whether to require vaccinations can have huge consequences. Particularly in Republican-controlled states, college presidents are weighing a delicate equation-- part safety, part politics, part peer pressure and part economic self-interest."

There are no vaccine requirements in any colleges in Trump states like Oklahoma, Idaho, Nebraska, Kansas, Mississippi and Alabama. "For the most part, the colleges choosing to enforce vaccine mandates in states that voted for Trump are private, name-brand schools not worried about meeting enrollment targets. The list reads like a roster of the most prestigious universities in those states: Tulane University in Louisiana, the University of Notre Dame in Indiana, Vanderbilt University in Tennessee and Duke and Wake Forest Universities in North Carolina.

And by the way, the Washington Post reported last night that "Several European influencers say they have been offered money to use their social media presence to discourage their millions of followers from receiving the Pfizer-BioNTech coronavirus vaccine by a suspicious agency that French officials reportedly think could be linked to Russia."