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Once approved, should people be required to get a COVID-19 vaccine as a matter of public health?

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Posted at 9:42 PM, Aug 31, 2020
and last updated 2020-09-17 20:42:23-04

DENVER — In research laboratories around the world, the race to find a COVID-19 vaccine is on. Already, more than 30,000 volunteers have agreed to participate in Phase 3 vaccine trials in the U.S., according to officials from the U.S. Department of Health and Human Services.

China, meanwhile, has been giving an experimental vaccine to medical professionals, border inspectors and other workers in high-risk professions, according to CNN.

President Trump has committed the U.S. to approving a vaccine by the end of the year.

Once a vaccine is approved, however, should cities, states or businesses mandate it? Denver7 heard multiple perspectives on the topic.

A history of mandates

There is a legal precedent for mandating vaccines in the U.S. that dates back to 1905.

The mandate stems from a U.S. Supreme Court case known as Jacobson v. Massachusetts.

In 1902, the city of Cambridge mandated smallpox immunizations for everyone over the age of 21 after an outbreak.

Local pastor Henning Jacobson refused to be vaccinated and was fined $5. Jacobson challenged the fine in court and the lawsuit eventually made its way up to the U.S. Supreme Court, which ruled 7-2 that the state did not violate the Fourteenth Amendment.

“In terms of a state and local vaccine mandate, the Supreme Court precedent is very clear that that would be acceptable when the vaccine is serving to address public health,” said Govind Persad, an assistant professor at the University of Denver Strum College of Law.

The Supreme Court justices, however, specified that cities and states must provide a medical exemption for someone who can prove a scientific reason for why they cannot or should not be vaccinated. The Supreme Court ruling did not, however, make room for a religious or ideological exemption so long as the law is applied equally to everyone regardless of race or gender.

Over the years, some states like Colorado have allowed for religious exemptions in the immunization schedule.

The ruling has been discussed in numerous cases over the years and Persad says it has been reaffirmed repeatedly.

More recently, the state of New York health officials issued a mandatory MMR vaccine order after a measles outbreak. The majority of the cases were reported within the ultra-Orthodox Jewish community in Brooklyn.

A group of parents sued the city over the mandate, but a judged disagreed and upheld the order.

Persad believes it’s less likely that the federal government would try to order mandatory vaccines in the wake of the COVID-19 pandemic, but believes it is possible some cities and states will decide to do so once there are enough doses for everyone. Along with requiring residents to be immunized, Persad says they could also require visitors to show proof of being vaccinated.

Aside from local and state governments, businesses also have a right to require immunizations for both employees and customers, according to Persad.

“Some businesses certainly could do that and actually have done that for other types of vaccines,” Persad said.

Employers would, however, have to follow the Americans with Disabilities Act and provide reasonable accommodations to employees and customers who cannot get the vaccine for medical reasons.

A bigger challenge, however, would be for businesses trying to enforce the rule.

“In terms of customers there would be questions about how... when you’re trying to draft that kind of requirement as a business, how you would enforce it,” Persad said. “It’s easier to see whether somebody has got a mask on then to see whether they have been vaccinated.”

He believes a vaccine order could be a good thing in order to get rid of some of the other public health orders that have been issued over the past six months.

“By accepting one regulation, mandate, can we get rid of other regulations like business closures and like, school closures that are restricting peoples personal freedom more seriously?” Persad asked. “Can that really enhance personal freedom because they allow us to do things safely that we otherwise wouldn’t be able to do safely or be able to do it all?”

Uncharted territory

While some support the idea of a mandate, others are skeptical and say it would infringe on personal freedoms.

Robert F. Kennedy, Jr. is an attorney and the president of the children’s Health Defense. He’s worried about how new the vaccine is and how complicated it is to get right.

“There’s a peculiar problem with the COVID vaccines that is almost unique,” Kennedy Jr. said.

He’s worried about the risk of antibody-mediated disease enhancement, which could cause a more serious reaction to coronaviruses by enhancing the disease rather than protecting against it.

ADE is considered to be rare and there is no proof that the phenomenon exists in COVID-19. However, Kennedy Jr. is worried about the possibility.

“I think it’s a healthy thing to question the pharmaceutical industry. I’m not anti-vaccine, although people call me anti-vaccine. I had all of my children vaccinated and if this vaccine says what people say it’s going to do, then I will take it, but we should be able to have a debate about that,” Kennedy Jr. said.

He believes the COVID-19 vaccine that is eventually approved will perform more like a flu vaccine and will require regular doses.

“I think that to be optimistic about getting a vaccine for the coronavirus that’s better than the flu vaccine is unlikely,” he said.

Kennedy Jr. also pointed out that the federal government has paid out billion in damages for vaccine injuries over the years.

Pharmaceutical companies in the U.S. cannot be sued as a result of the 1986 National Childhood Vaccine Injury Act. Instead, people who were injured by immunizations can file a claim with the National Vaccine Injury Compensation Program.

Critics of the program say only 10% of claims that are filed are paid out and many others go unfiled.

Beyond that, Kennedy Jr. is not sure the vaccine will be the end-all answer to the pandemic.

“I don’t think the vaccine is going to solve all the societal problems that people are hoping that it will solve. I think we’re much more likely to get that solution from therapeutic drugs,” he said.

Public health versus personal liberty

Del Bigtree, the host of Highwire with Del Bigtree and CEO of the Informed Consent Action Network, is also concerned with how quickly researchers are moving on this vaccine.

“The two most dangerous words ever put into one sentence are 'rush' and 'science.' We should never rush science,” Bigrtree said. “Even if this vaccine doesn’t come out until the middle of next year, that means the safety studies around it really only lasted, maybe, six months at best.”

He’s concerned about the potential long-term effects the vaccine can cause that might not be discovered for years, such as auto-immune disorders.

“These are all things that were essentially written about in science fiction novels and now we’re seeing them in action,” Bigtree said.

Despite this, Bigtree is convinced that as soon as a vaccine is approved for widespread use, certain states and businesses will move toward mandating it, something he believes breaks the Nuremberg Code.

The Nuremberg Code was developed after World War II and states that patients must provide explicit voluntary consent before participating in human experimentation.

Critics of this argument say an approved vaccine does not constitute human experimentation.

Regardless, Bigtree says he opposes the idea of mandates and he plans to fight any vaccine order.

“You can be assured that we will be doing everything we can to fight for people’s freedom and right to decide what is injected into them. We are not farm animals, we are free citizens,” he said. “I don’t think that the overall health is really the position of the United States government, our health is really our own decision.”

An uphill battle

If anyone knows about the potential pushback from the anti-vaccine community, it’s Rep. Kyle Mullica, a Democrat who represents Adams County.

Rep. Mullica is an ER nurse on the frontlines of the COVID-19 pandemic and a state lawmaker. Last session, he helped pass a bill aimed at boosting the state’s immunization rates by requiring parents to take additional steps if they do not want to vaccinate their children.

“It’s still was a struggle and it still was very contentious, and I think that that stems from just a lot of the misinformation that’s out there that’s been put on the internet,” Rep. Mullica said.

Colorado is still last in the country when it comes to kindergarten MMR vaccines.

Rep. Mullica believes the best way to combat the novel coronavirus pandemic is for enough people to be vaccinated to create herd immunity for those who cannot be immunized.

However, he insists no one on the state level is discussing the idea of a mandate right now and that there are other options instead.

“No one is looking at going to your house and tying you down and forcibly injecting you. That’s not something that I advocate for,” Rep. Mullica said. “What we can do is look at tools that are in the toolbelt.”

Those tools include information campaigns, among other things. Most importantly though, Rep. Mullica says he doesn’t believe the Food and Drug Administration would release anything that is dangerous.

When a vaccine is released, he will encourage people to get it for the sake of public health.

“Really, what it comes down to is thinking about something that’s bigger than yourself, thinking about your neighbors,” he said.

The race is on

Inside a laboratory on the Colorado State University Campus, researchers are making progress on four COVID-19 vaccine candidates.

Gregg Dean is the head of the department of microbiology, immunology and pathology at CSU working on the vaccine and says around the world, researchers are sharing more information than ever before.

“These are times like no other than any of us have seen so it takes extraordinary measures,” Dean said.

Typically, there are three phases to clinical trial, starting with a safety aspect. Despite the quicker work, Dean insists the process is still fundamentally the same.

In order for things to go back to normal, Dean says, countries need to be able to diagnose the disease, treat it and also prevent it.

He understands the concerns people may have about any new vaccines coming out.

“Everybody wants to have some certainty around the safety and efficacy of a vaccine. The idea that we may be rushing the process, whether that’s truly the case or not, it’s concerning for a lot of individuals and that’s so understandable,” Dean said.

He doesn’t necessarily like the idea of mandating a vaccine because he thinks it’s a distraction that can co-opt the discussion.

“My opinion is, we really need to focus on communication and getting information out. This is a time for us to build the communication relationship and trust,” Dean said.

With better communication, Dean believes Coloradans will step up and participate in the vaccine strategy when it is improved.

A different question

During a recent news conference, Governor Jared Polis said the focus for the immediate future won’t be making sure the right people are vaccinated.

“There will be limited dosage available as a vaccine comes online, so the real question that the federal government and the states will deal with based on the advice of medical professionals is, how do you prioritize?” Gov. Polis said.

He is now working with health officials to identify the groups who should be prioritized, such as frontline workers and people who are at a higher risk of suffering from serious complications from COVID-19.

“How can we make sure that we have the highest and best use of the limited supply available in our state is the real question that will begin to grapple with,” Gov. Polis said.

To mandate or not

In research labs around the world, scientists are working quickly to find a COVID-19 vaccine.

Pharmaceutical companies are already reporting promising results for their trials.

However, once a new vaccine is approved, convincing millions of Americans to get it could be a different challenge altogether.

Editor's Note: Denver7 360 stories explore multiple sides of the topics that matter most to Coloradans, bringing in different perspectives so you can make up your own mind about the issues. To comment on this or other 360 stories, email us at 360@TheDenverChannel.com. See more 360 stories here.