Deep Dive Episode 208 – A Debate on COVID-19 Vaccine Mandates
On February 2, 2022, Lawrence Gostin, David Hyman, and Jenin Younes joined the Federalist Society’s Georgetown Law Student Chapter to debate COVID-19 vaccine mandates.
Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.
[Music and Narration]
Introduction: Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.
On February 2nd, 2022, Lawrence Gostin, David Hyman, and Jenin Younes joined The Federalist Society’s Georgetown Law Student Chapter for a debate over COVID-19 vaccine mandates. The following is a recording from that event. We hope you enjoy.
Elizabeth Henry: Wonderful. Thanks to everyone who’s joining our event today. We have a great event planned regarding vaccine mandates, a hot topic. I’m Elizabeth Henry. I’m the President of the Georgetown Law School Federalist Society. And for those of you who may not have attended our events before, The Federalist Society is an organization of conservative and libertarian lawyers founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.
If you’re interested in becoming a member of our chapter, you can go to fedsoc.org/join. It’s only five dollars for student members. Our next event will be Thursday, February 10, at 2:00 p.m., also on Zoom, featuring Mississippi Solicitor General Scott Stewart, regarding the Dobbs v. Jackson Women’s Health Organization case.
Today’s event is cosponsored by the Food and Drug Law Journal. And the Editor in Chief of the Food and Drug Law Journal, Courtney Stone Mirski, who is a 3L here at Georgetown, will be moderating today’s event. Courtney, I’ll turn it over to you to introduce today’s speakers.
Courtney Stone Mirski: Great. Thank you, Elizabeth. Hi, everyone. Welcome. We’re very fortunate today. We have three experts here with us. We have Professor Larry Gostin. He is a University Professor at Georgetown School of Law, Medicine, and Public Health. He’s the Director of the O’Neill Institute for National & Global Health, and he has written many, many books on law and public health.
Professor David Hyman is a medical doctor. He is the Scott K. Ginsburg Professor of Law & Health Policy here at Georgetown. And he also has prolifically published on health law, health regulation, and health financing.
We are also lucky to have with us Jenin Younes today from the New Civil Liberties Alliance. She is a litigation counsel there. And she had worked specifically on vaccine mandates.
So welcome to all of you. I’m glad to have you here today. So just to kind of review for everyone who isn’t aware of the state of vaccine mandates, there have been about five federal mandates, and a number of state and local governments have also adopted mandates. Among the federal mandates, a number have faced court challenges, one from the Centers for Medicare & Medicaid Services, which is in effect. And that was upheld by the Supreme Court a couple weeks ago.
There was one from OSHA, the Occupational Safety and Health Agency, that was stayed by SCOTUS a couple weeks ago. We also had a federal contractor mandate, and there’s a nationwide injunction against that one; a federal employee mandate, also subject to a nationwide injunction right now; and a military mandate. That one’s in effect, but there have been court-ordered exemptions for religious exemptions.
So I am going to turn it over now to each of our panelists to give a short opening statement. And then we’ll have some questions. So, Professor Gostin, do you want to kick us off?
Lawrence Gostin: Sure. Thank you very much. I appreciate it, Courtney. And first, let me apologize for my low energy. I’ve had a really busy day, a lot of Zooms and things that — so this is the culmination of it. And then I’ve got to leave early for yet another meeting. So it’s been quite a hectic day for me.
I think that, obviously, the vaccine mandates are lawful and ethical. And normally, I would kind of go into the reasons why, but I think since I’ve only got five minutes, I want to just say that I think that vaccine mandates should be supported by The Federalist Society. And I think that the old Federalist Society, the ones that really had the traditional conservatism, would support it because there’s been — first of all, vaccine mandates go back over a century. In fact, way before that, George Washington ordered the Continental troops to be inoculated. And there have been vaccine mandates for many years. The Supreme Court has upheld it twice.
But more importantly, there’s always been a conservative tradition that, while the government has no cause for interfering with self-regarding behavior — but the government could and should deal with externalities. And infectious diseases were the quintessential example of an externality. And so the idea — so, say, if you take the OSHA mandate that a lot of the conservative groups were against, basically, it was basically saying to somebody, “You can’t go into a crowded workspace unmasked and unvaccinated. And you get to choose. You can mask and test, or you can vaccinate.”
And even that was thought to be wrong. But it seems to me that it defies common sense that a conservative would say that it’s all right to expose other people to an infectious disease that’s potentially deadly in a crowded workspace that would cause harm to others—and probably would. And OSHA estimated that there would be thousands of deaths avoided, which probably was a conservative estimate.
Now, I realize that most vaccine mandates have been at the state and local level and that states and localities have absolutely the primary public health powers. I think they should have those powers. They should exercise them. Every state has exercised it, and currently does with childhood immunizations. And many states don’t even grant a religious exemption, including very conservative states like Mississippi and West Virginia.
The federal government has limited power. Right? I tend to disagree with the Supreme Court in saying that the Occupational Safety and Health Act did not authorize this. But I think there’s room for disagreement on that. And there’s a lot of debate over the major questions doctrine.
But the only real take-home point that I wanted to say is that I think that we’ve lost the tradition, frankly, of traditional conservatism. And I wish we had it back because it’s something I admired. And I’ve always admired The Federalist Society—I still do—because of the thoughtful and — I disagree with much of what The Federalist Society stands for, but I respect the integrity and the intellectual rigor that Federalist Society has brought to these kinds of questions.
And so, with that, I’ll — that’s about my five minutes. And I’ll turn it over. I guess it’s — is it to you, Professor Hyman?
David Hyman: I think so. So, thanks, Larry. Larry and I actually coauthored a textbook on public health law and health law, and we had plenty of disagreements. But today, I’m thrilled to find myself the mushy moderate for the first time in my career.
Lawrence Gostin: Nothing wrong with that. I think being – “The middle way is a good way,” said Buddha.
David Hyman: Well, not always. But those of you who took my course, How to Regulate, including Courtney, will recognize a lot of what I’m going to say. At the outset, I just want to say that I think it’s unfortunate that these issues have become politicized. Before I went to law school, I went to medical school. And before I went to medical school, I was a bench scientist working on viruses way back in the 1980s.
And I can tell you that viruses don’t have any politics. And they don’t care about your politics. And they don’t care about state borders, for that matter. They are evolutionarily tuned to reproduce and spread. And I think it’s important for us to keep that in mind when we’re beating one another up about what the appropriate policies are.
Just a basic framework for thinking about this issue — I think the starting point is autonomy or liberty. Adults get to make their own decisions about their life. It’s a basic keep-your-hands-to-yourself rule. That’s how we get informed consent in medicine and a whole bunch of other social policies. And unless something is explicitly prohibited, it’s allowed.
Now, there are obviously slightly different rules for kids. Parents get lots of deference on their decisions, as long as they’re within the realm of debatable options. Adults can refuse blood transfusions for religious reasons or rely on faith healing. But they can’t make their kids a martyr for the cause. That gets treated as medical neglect. We take custody of the kids, and we treat them.
Now, there are obviously reasons not to leave things well enough alone, particularly externalities—which Larry, Professor Gostin, has already mentioned—where one person’s behavior can affect other people. Common law nuisance, a chunk of environmental law, and a lot of public health law are tied to the issues of externalities, particularly when the transaction costs are sufficiently high that people can’t voluntarily bargain to get these things. And so we see the government using a range of tools to address externalities, including taxes, direct regulation, and outright prohibitions.
Now, in the public health space, there are lots of soft restrictions, like kids who aren’t vaccinated against the usual childhood illnesses can’t go to public school in most states. That worked pretty well until vaccine resistance migrated from the far right to the whole-foods left, thanks in part to Jenny McCarthy and Robert F. Kennedy and a phony-baloney scare about vaccines causing autism.
Mask mandates on airplanes and other interstate commerce — common carriers are sort of in the same ballpark, but the outer boundary is set by quarantine of individuals, households, and even entire neighborhoods. And these have been repeatedly upheld by the courts.
Now, depending on the circumstances, these interventions can either be sensible or stupid, but there isn’t much doubt that they have a role to play in reducing morbidity and mortality, as long as the underlying facts justify them.
Next, when the government’s an employer or a payer—and Larry has already alluded to this—it can attach certain conditions, including requiring its employees to be vaccinated or observe certain requirements. In practice, the government often defers the determination of the criteria to accrediting organizations, but it still retains the right to specify them. He who pays the piper calls the tune.
But it can’t make up these things on the fly. It needs legislative authorization and fair notice. And I think, with due respect to Larry, that was part of the problem, at a minimum, with the OSHA mandate. And some people believe it was also a problem with the CMS mandate that wasn’t, in fact, upheld.
Now, when the government isn’t an employer or a payer, the rules kind of depend on the level of government. The states have plenary police power. The federal government has a much more limited set of authorized powers. And cities and counties have the authority that the state delegates to them. So that means that attempts to impose broad-based vaccine mandates at the federal level are going to face tough sledding, even if there were extremely explicit statutory foundations for them—far more explicit than I think there was found in the OSHA case, certainly, but also, in fairness, in the CMS case.
So I’ve got just a couple of seconds left. Let me make two final points. First, even if vaccines are effective, and it certainly seems that they are—there is, I think, quite compelling evidence that they are—it does not follow that vaccine mandates will be effective at raising the level of vaccination. A lot’s going to depend on how they’re framed, presented, and enforced.
Public health personnel have lost a huge amount of credibility among large chunks of the population because of the pervasive evidence of government failure in responding to the pandemic and lots of evidence of the recommendations being skewed by group-think and progressive public health policy. I take that up in a piece you can download from ssrn.com.
And then the last issue I want to make—because I know I’m over a minute—is even if there was a case for universal mandatory vaccinations imposed at the state level to deal with communicable disease externalities while we were in the midst of the earlier rounds of variants, I think it’s fair to think that we’re in a very different situation now with Omicron, particularly given the large number of people who were already vaccinated or have caught and recovered from COVID. I think there’s a very strong case for protection of the vulnerable, but a lot of what we’re doing is hygiene theater.
So let me stop there and turn things over to Jenin.
Jenin Younes: Thank you so much. I agree with a lot of what Professor Hyman said. And also, certainly, I agree that it’s unfortunate that this whole issue has been politicized. I actually, myself, came from the left. I was a public defender in New York for a long time. My Twitter handle is Leftylockdownskeptic. I sort of have found myself on a very different side of things because I firmly believe that the government exceeded its authority in violating people’s civil liberties in implementing supposed COVID mitigation policies that have mostly failed.
They’ve failed sort of in practice, and they’ve also, as Professor Hyman noted, have caused a huge breakdown in trust between the public and health authorities that I think will be detrimental for decades to come.
So I also want to begin by saying I think there’s been a little bit of an assumption that the vaccines stop transmission, and that’s sort of the broader public health rationale. Many studies show that the vaccines actually were never sterilizing, that they were never very good at stopping transmission. Now, with the emergence of Omicron, it’s quite clear they’re not doing very much. Even Rochelle Walensky admitted that.
And without that sort of broader public health justification—or externalities, as Professor Gostin talks about—then what we’re looking at is mandates that are about protecting the individual from him- or herself. And I find those very troubling.
If the government or your employer can tell you to take a vaccine so that you don’t have a severe outcome from COVID, well, why can’t they tell you to maintain a certain BMI? Obesity is the number one risk factor for COVID. And I hope that a lot of people would see the problem with your employer or the government being able to force you to exercise or maintain a certain BMI to reduce worker absenteeism.
I also find it ironic that it’s the left who is embracing this idea when this is turning the worker into a commodity who basically just exists to service his or her employer and to be the most healthy that he or she can be for that reason.
Another difference between this vaccine mandate and others that have existed in the past is that, in addition to not being sterilizing — is that the disease itself poses a very low risk to young people, and it’s not at all clear that the risks of the vaccines are less than the risks of COVID, especially children, and especially COVID-recovered children. These vaccine mandates don’t take into account natural immunity, another reason that they’re troubling. Most vaccine mandates in the past have.
We’ve never mandated vaccines that have been around for less than two years, and so, by definition, can’t have been studied for long-term effects. The idea that, “Oh, they’re perfectly safe –” the vaccines appear to be safe, overall, relatively. But that doesn’t mean that, for every individual, there won’t be side effects. And I talk to people who have experienced severe side effects from this vaccine and other vaccines.
So to take choice out of the individual’s hands when the vaccine is not sterilizing, doesn’t stop transmission, when it hasn’t been around for even two years, when a lot of people have natural immunity and transmit COVID at lower rates than those who are only vaccinated, I find the whole concept to be deeply troubling, both from a legal and an ethical perspective.
This has led to an ironic situation in many states, where—for instance, Rhode Island, California—because they’ve had to fire healthcare workers who won’t get vaccinated, including ones who have natural immunity, they’re actually permitting COVID-positive healthcare workers, as long as they’re vaccinated, to treat patients. This is the sort of insanity that results when people insist on a system of mandates that doesn’t actually make any sense.
And so, for ethical, legal, and public health reasons, it’s important, in my opinion, to return to an era of informed consent—to allow people to make choices in consultation with their doctors. It’s best for everybody. It’s best for public health.
Courtney Stone Mirski: All right. Well, thank you all. Very, very great answers and covered a lot of ground. So I think what I’m going to do is, first, kind of give Professors Gostin and Professor Hyman a chance to respond each to some of the points that Ms. Younes made.
I think some of the main points that we were discussing are the risks of side effects. Things like natural immunity, should that be taken into account when we make exemptions? And how do these vaccines affect transmission? And does that change the validity of the vaccines if they don’t actually stop transmission? So, Professor Gostin, if you just want to take a chance to respond.
Lawrence Gostin: Do I always have to be first? And it’s obviously —
David Hyman: — I can go first if you want, Larry.
Lawrence Gostin: And, obviously, it’s two against one. There isn’t, like, a middle. So, okay. We really should get our facts a bit clearer. So I’ll just do the facts. I’ve never heard about this. I’ve never heard the expression “sterilizing” from vaccines, but that must be — that must be me. First of all, there’s been opposition. And I agree with David. Opposition to vaccines are on the left and the right—the California suburbs and whole-foods people as well as the right. That’s absolutely clear.
But there was objection to them when it was very clear that there was a significant reduction in transmission. The original messenger RNA vaccines had over 95 percent effectiveness against infection. So it was clear. It is true that, with the Omicron variant, it’s highly infectious. There are a lot of breakthrough infections. And I would be less than honest if I said that I did — I mean, I have sympathy with David’s point that in this wave, the justification for mandates has ameliorated considerably because it’s more of a protection of self rather than others.
But nonetheless, they do impede transmission. A person who’s vaccinated—and if they’re vaccinated and recovered, even more so—harbor the virus and are infectious for shorter, shorter periods of time, and the chances of transmission are lower. But they’re not, certainly not anywhere near zero. There are a lot of breakthrough infections. That’s very clear.
In terms of safety, these are enormously safe vaccines. Yes, they’ve only been here for a year. But there have been billions upon billions of doses globally and in the United States. This is one of the safest vaccines we’ve had. And to suggest that it isn’t, or plant the seed of doubt that it isn’t, I think is disingenuous. It’s factually wrong. And we need to be very clear about our facts.
In terms of long-term implications of vaccination, there’s an overwhelming scientific consensus that getting COVID has much more far-reaching risks to the individual of longer-term consequences, something we call long COVID or post-COVID disease. And so I think that that’s really important. The other thing is that vaccinologists will tell you that long-term adverse effects from vaccines are vanishingly rare. If you’re going to see an adverse effect, you normally see it fairly soon, certainly within days, weeks, or even months.
And so what I want to say is that, yes, I recognize that under the current wave, with a very highly infectious pathogen, that the justification is diminished, but not completely changed, although there are externalities for hospitalizations and imposing healthcare costs on others, and also making it more difficult for people with other diseases, cancer, diabetes, or needing other kinds of medical procedures to get the attention they need.
But I just wanted to clarify some of those facts. And I do recognize, or I do concede, that the justification for an externality is diminished, but I don’t think diminished — but I still think is present.
David Hyman: So continuing my mushy moderate position, I want to agree with Larry that vaccines reduce transmission. And I want to agree with Jenin that the justification that’s tied to externalities is different than the justification that’s tied to, “this will be good for you,” and by reducing the rate of hospitalization and mortality. And those stand on different footings, and the challenge is where do we draw the line when government starts telling you to do things that it’s concluded are better for you.
And Jenin used the example of you should have an optimal BMI, and we won’t cover you, presumably, for health costs or consequences if you exceed that. You can raise many of the same objections to wellness programs, to surcharges that are tied to whether you smoke or not, and so on, and so on. And so, I think we should be clear and open that we’re doing some things but not other things and making merit-based arguments as to why we think some of those are justified and others are not.
I think the risk-benefit calculus is exceptionally clear for elderly people with comorbidities. I think it gets much harder as you move lower in the population, particularly for people who are under 18, and especially for people who are under six or five. And so, that’s an area where we might want to be considerably more cautious in thinking about mandates, especially as the risks of side effects of the vaccine—which there are; they’re relatively rare, but there are—can be higher in people that have preexisting cardiac issues that we ought to be paying attention to.
And that is the problem—the devil is using rules versus standards. Right? A rule that says, “Everybody must be vaccinated,” is clear to state, but it has real error costs, even though the decision costs are low. A rule that says, let’s start allowing various types of exemptions and enforcing them in good faith—which it’s not always clear that people are doing—is a rule where fewer people are going to be vaccinated. But the mismatch problem of people who either don’t think they need it or have legitimate religiously-based or other ethically-based objections to getting them, will be able to optimize along the — whatever they think they ought to be.
So let me stop there because, as I said earlier, law professors like to go on. And that’s more than enough.
Courtney Stone Mirski: Sure. And I’ll give — I’ll give Ms. Younes a chance to respond.
Jenin Younes: Thank you so much. So, a few things. With respect to the transmission issue, there have been numerous studies that actually cast doubt on the degree to which the vaccines stop transmission. And that’s been true all along. There was a study from Qatar. There was one from Wisconsin—and this was during Delta—that confirmed that vaccinated individuals were at least as likely to shed virus as the unvaccinated. There are other —
Lawrence Gostin: Yeah, but those — that —
Jenin Younes: — those are –.
Lawrence Gostin: — that — those —
Jenin Younes: Excuse me. No, no, no —
David Hyman: Larry —
Jenin Younes: — it’s not your turn.
Lawrence Gostin: Those data are just wrong. I mean, yes, you have more —
Courtney Stone Mirski: Professor Gostin — sorry — Professor Gostin, —
Jenin Younes: It’s not your turn.
David Hyman: Larry, let her finish.
Courtney Stone Mirski: — let her respond to that.
Lawrence Gostin: I don’t want — I don’t want the audience to be confused —
Jenin Younes: There are –.
Lawrence Gostin: — on the facts.
Jenin Younes: In any event, in any event, why don’t we move away from the transmission issue because your contention is also, I assume, that the vaccines are extremely effective at preventing severe disease in the individual who takes them. So then why do you need other people to take them? Look — and I’m not anti-vaccine. I took the vaccine myself. I told my parents to get it. I just think that this approach is extremely detrimental to public health. I think that it’s unethical. And I think it’s going to lead to a broader anti-vax movement in the long run, if one takes the long view.
In terms of externalities — so we have to look at things a little more – you know, people don’t just behave the way you want. It’s not that you say, “Go get the vaccine,” and everyone gets the vaccine, and then the hospitals aren’t overwhelmed. Actually, one of the reasons that hospitals are overwhelmed is because we’ve been firing healthcare workers who aren’t getting the vaccine. So there’s more to it than just looking at it in that simple way.
Side effects — myocarditis among young men. Now we’re seeing much higher rates than were first — first it looked like one in a couple of million. Now it’s looking like one in a couple of thousands. And this dismissal of myocarditis as not a serious condition is actually wrong. It can lead to scarring of the heart tissue and long-term effects that are unknown. As a cardiologist I speak to frequently named Anish Koka in Pennsylvania says, “We simply don’t know. These young men could be dropping dead 20 years later.”
I am not trying to scare people from getting the vaccine. That’s not my position. What my position is is that taking choice out of the hands of the individual, in consultation with his or her doctor, is the wrong approach because there are individual circumstances that affect whether or not the vaccine is the right choice for one. A young man who had COVID last month, the vaccine may pose a greater risk than not getting the vaccine. And, in fact, it probably — it does. And that is why I consider these mandates to be highly problematic.
Courtney Stone Mirski: Well, thank you, Ms. Younes. So I think we can move forward to discuss the specific mandates. I’m sure you guys are all familiar with them. Do you think the courts are drawing principled lines when they say that Center for Medicare and Medicaid Services — that that mandate can go forward, but the OSHA one cannot? When they say that the military can go forward, but federal contractors cannot? What are your positions on those? So, Professor Hyman, we’ll start with you this time.
David Hyman: Well, the employees-versus-contractors goes back to one of the observations I made before, which is employers can specify the terms under which you can remain employed. And the military — at least arguably, you can impose stricter conditions on them, and the government has. Right? There have been various vaccines that military personnel have had to receive on pain of separation that we’ve never considered using for civilian employees, let alone ordinary citizens. And so, that matches onto a sort of long-standing set of rules
. With respect to the contractors issue, it kind of involves the fair notice and express statutory authorization issues that I also alluded to. The difference between OSHA and CMS, I think, has to do with the reality that, at least for OSHA, if the bug is endemic—and I use bug in the shorthand form, it’s obviously not a bacteria, it’s a virus—it’s not a workplace-specific problem, and so it doesn’t fit neatly into a statutory framework that’s tied to workplace-specific risks.
You can obviously catch it in the workplace. But if you can catch it elsewhere, I think the Court understandably viewed this as a circumvention strategy or a workaround the otherwise significant limitations on the ability of the federal government to actually impose a broad-based mandate, to point — one of the points I made earlier.
Whereas the CMS issue — presumably, it was some version of, “Well, it’s hospitals. Hospitals need to be safe.” We had some broad language authorizing CMS to do things. That’s enough to hang our hat on. There isn’t the same mismatch problem that we have with OSHA.
And I guess the last point I want to make before we leave is the reason why we have a shortage of hospitals is not simply because some hospitals have been firing people that haven’t gotten vaccines, it’s because in-patient beds are really expensive. And there’s a long-term trend in decline in the number of in-patient beds in hospitals in the United States, to the point that an ordinary flu season will basically bump us close to or above our capacity. And then, when you have something like COVID that’s much more pervasive, you’re going to have that problem. Right? But when your census rate is running pretty close to full ordinarily, it doesn’t take much to bump you over the top.
Courtney Stone Mirski: Okay. Well, thank you. Ms. Younes, I’ll let you go next.
Jenin Younes: Sure. Well, I suppose it will come as no surprise that I think the Court reached the wrong conclusion on the healthcare workers, but the right conclusion on the OSHA statute. I do understand the line that the Court drew, and it had a lot to do with working around vulnerable people. I would have at least hoped that the Court would accept healthcare workers with naturally-acquired immunity from that.
Based on the OSHA case, I expect that the contractor case will be struck down. I think that the basis for that mandate is even more tenuous than the OSHA one because that’s based on a statute that’s about procurement of government contracts. It’s not even about health and safety.
So I think that that one basically is completely — I don’t think there’s a strong argument at all for that one, although I didn’t think that for the OSHA case either.
Federal employees — it has been stayed by a court in Texas. I actually worked on a case in front of the same judge, same issues — with timing ended up with the other firm getting a stay. But I don’t think that the federal employee statute permits for that mandate either. Again, I simply don’t think that the federal government should be in the business of mandating vaccines at all. I think that far exceeds its authority.
And just one more comment on the hospitalization issue. I agree with Professor Hyman about that. And I do understand that hospitals being overwhelmed is a problem. But again, the question is how is — what is the best way to prevent that issue or that circumstance. And vaccine mandates do not seem to be the way to do that.
Courtney Stone Mirski: All right. Well, thank you. Professor Gostin?
Lawrence Gostin: Well, I guess, suppose that it depends on whether you — what your view is about whether vaccine mandates expand the number of people who are vaccinated or they don’t. It’s very clear that one way of reducing capacity issues in hospitals is by vaccinating a higher rate of the population. The U.S. hospitalization and death rate, even through Omicron, is much higher than similarly situated countries because they have much higher levels of immunization. And there’s very strong data showing that people who are unvaccinated have far higher risks of being hospitalized if they get COVID than others do.
So in terms of the federal mandates, I just put in the chat a JAMA article where we discuss these two cases. I flipped completely. I basically think CMS was rightly decided, and OSHA wrongly decided. But I’m not –I think it’s — these are genuinely debatable issues. I don’t think that there is kind of a moral or jurisprudential high road here. And I’m not that concerned — at least not overly concerned — about what the OSHA decision will mean for future federal vaccine mandates. I absolutely agree that most mandates should be at the state and local level, and that the federal government shouldn’t really be in the business of requiring vaccines unless it’s real emergency—which I think we’re in now, and we have been—except, perhaps, at the border, trying to require people to be vaccinated to enter the United States, things like that.
I do worry much more what that OSHA decision portends for the future of federal regulation, particularly in the area of environmental regulation because if it were true that every time that there is a significant regulation that affects major economic and social consequences in the United States, if it were true that you’d always need to have very specific congressional authorization for that, it would really disempower federal agencies from acting flexibly and nimbly to protect the American public. And I think the biggest worry that I have is in areas of very high consequence like environmental protection, that it could eviscerate the federal government’s role to protect public health and safety going forward.
Courtney Stone Mirski: Well, thank you. I think you touched on some important points about the future and how what we do now affects what we do later. And I want to give a chance to Professor Hyman, and then Ms. Younes, to kind of discuss what you think will happen in the future and how you think we’re setting the stage for — or what you think we’re setting the stage for now. So, Professor Hyman, if you want to go next.
David Hyman: Let me let Jenin go first because she and Larry are at loggerheads, and I don’t want to be stuck in the middle.
Jenin Younes: I mean, I don’t mind if you want to go first. But frankly, agencies having far less power is, in my opinion, one of the best things that could happen to this country. And frankly, if the last two years are any indication, they’ve just been running roughshod over people’s civil liberties with no regard for them whatsoever. The CDC eviction moratorium, which is a complete misuse of the CDC’s authority, these attempts at these vaccine mandates – I mean, these have real consequences for people’s lives.
And there’s more than COVID in the world. And people’s lives have been devastated by lockdowns, by these agencies. The CDC and the FDA have far too much authority. They haven’t been acknowledging the real science, especially when it comes to natural immunity and various other aspects of this situation. In any event, that’s my position on OSHA, or on the agencies.
But I actually forgot what I was supposed to be talking about. Oh, the future. The future — I don’t — well, I mean, it was a good decision. I don’t really know. Obviously, it’s a conservative court, so there are likely to be more such decisions in the future. Hopefully, they’ll be reigning in agencies’ powers. Hopefully, Americans have seen that they shouldn’t really be trusting agencies this way. The blind reliance on CDC guidance, which is not law, has been extremely detrimental to this country, to public health policy.
And I’ve seen, across the country, universities and employers just adopting CDC guidance as though it’s the word of God when it’s not subject to lawmaking. It’s not subject to the input of various people with different perspectives. It’s based on the views of people who, frankly, in my opinion, tend to have a rather myopic worldview. They’re sort of looking at one thing without regard to people’s overall mental and physical well-being.
David Hyman: So let me actually start with the last point Jenin made, which is the public health people understandably focused on public health concerns in the same way that the DOD focuses on defense concerns and the EPA focuses on environmental concerns. The difficulty, of course, is you get tunnel vision and a fixation on one particular domain, and you don’t think about all of the collateral costs that are resulting from this monomaniacal fixation on a particular issue.
This is a problem that agencies run into over and over again. And part of the role of Congress is to give them enough power to address the problems without so much power that they run roughshod in pursuit of their self-declared mission. And you’ve got examples of this across administrations and across agencies that I think are a cautionary tale.
Second, Churchill said, “Experts should be on tap, not on top.” That is, they should be available to provide information because the median member of Congress probably took science in high school. They certainly are unlikely to have majored in it in college. And although there are a couple of physicians in Congress, they decided to do something else, rather than focus on the subtleties of dealing with the latest pandemic or whatever other problem we have to deal with. And so it’s critical that they have access to good information. But they shouldn’t just defer to agency personnel in any given area on their recommendations. They need to think about the trade-off across domains.
And then, finally, Courtney asked for predictions about the future, and so I give you Yogi Berra. “It’s difficult to make predictions, especially about the future.” And so I won’t.
Courtney Stone Mirski: That’s totally fair. And that’s a good note to begin our Q&A. I know Professor Gostin has to head out a little bit early. So when you’re ready, you can head out. And we’ll miss you.
Lawrence Gostin: Okay. Thank you.
Courtney Stone Mirski: Let’s see. So if people want to submit questions to the Q&A, hand those up to me, and I’ll ask them for you. I will start off with a question for Ms. Younes from Uriel Charlap. “Let us assume for the sake of discussion that the vaccine prevents transmission. The data that the vaccine prevents transmission will be found. Would you be in favor of a mandate?”
Jenin Younes: That’s a good question. If all other characteristics of the virus were the same, I would say no. Because the vaccine only poses a risk pretty much to a specific portion of the population, I think that it’s immoral and bad public health policy, again, to mandate it for everybody. I actually said on Twitter the other day, and I sort of regretted it — take the hypothetical, if you have a — this is Ebola, and we have a sterilizing vaccine that stops transmission, and it sort of kills everybody, regardless of age or other characteristics. I could imagine being in favor of mandates in such a situation.
But on the other hand, they wouldn’t be necessary because everybody would be running out to get the vaccine unless the government has lost the trust of the people and they don’t believe the facts that are coming out of the government or various agencies. And that’s a separate problem. So I tend to think that if you need mandates, there’s a bigger problem. You have a bigger problem on your hands. The people don’t trust the government. And that’s something that should be dealt with separately.
Courtney Stone Mirski: Professor? Professor Hyman?
David Hyman: I don’t have a dog in that fight unless you want me to answer the question.
Courtney Stone Mirski: Oh, no. That’s fine.
David Hyman: Yeah. We’ve got a lot of questions, so maybe we should —
Courtney Stone Mirski: Yeah. Sure.
David Hyman: — alternate and focus on the ones where there’s profound disagreement, if that’s okay.
Jenin Younes: I don’t think we have that much disagreement.
Courtney Stone Mirski: Yeah. So that’s going to be —
David Hyman: Give me time, Jenin. I’ll come up with something.
Courtney Stone Mirski: Sure. So we have a number of questions. So, Nathan Frankenberger, he asks — he says, “I work in radiology in COVID units, etc. I did time in the military as well. I spent roughly 17 years building a career. There is zero liability if I were to have a stroke and become disabled. Also, Professor Gostin should review risk analysis. Assuming people are vectors is ridiculous.” Okay. Well, I guess he’s not here right now. So I will move on from that question.
David Hyman: Just to be — I’m not sure that the question is correct that there’s zero liability if you have a stroke and become disabled. If it’s the result of exposure at work, you can’t sue the vaccine company for that. But workers’ comp would cover you, assuming you’re a statutory employee, which is going to vary depending upon your state. And you’d be covered by social security if you become disabled. We can argue about whether liability protections for vaccine development are a good or a bad decision. And I’ve done a lot of work on medical malpractice. We have a vaccine compensation fund because these cases don’t fit so neatly into a medical malpractice model.
And I certainly — the vaccine compensation fund is a government program. I’m not going to suggest that it works flawlessly. But we haven’t just left people to their own devices when they suffer injury as a result of employment or receiving a vaccine. A lot of this also—just to give people a little bit of history—goes back to the swine flu epidemic, where — I know this goes beyond living memory of at least a significant chunk of the people on the call, but way back in the 1970s, we had disco. And we also had concerns about a swine flu epidemic.
And so, a lot of people got vaccinated. But the rates of injury were strikingly high, and so we end up with a vaccine compensation fund, but the vaccine manufacturers said, “Never again. We’re not in this business unless you immunize us from liability.” And you can think about this as just a variant of the public goods problem. If the liability risks are too high, something that’s immensely valuable is not going to get created, even though, when push comes to shove, we actually kind of, sort of, really need it.
Courtney Stone Mirski: Well, thank you very much. Ms. Younes, do you have a response to that, or would you like me to move forward?
Jenin Younes: No, I’m fine.
Courtney Stone Mirski: All right. So the next question from John Overing. He’s a 2L at Georgetown, and he asks, “Given that viruses vary tremendously in spread and severity, how big of a public health risk is necessary to mandate vaccines?”
David Hyman: This is the sort of eye-of-the-beholder issue where federalism comes to the rescue. Right? Some states are full of risk-averse people. Other states are full of people who are willing to roll the dice. And you can pick whichever state you want to put into that box. But Nevada and Arizona are likely to be — more likely in the latter group than in the former group. And other states are just going to make a different judgment on these sorts of issues.
So I think the parameters that people should pay attention to are straightforward. It’s infectiousness and severity. Right? The higher you are on both of those, the more you want to start to think about this as a real externality problem, rather than just anybody with any sechel would get the vaccination.
Jenin, I keep provoking you, and you’re not responding.
Jenin Younes: I’ll sort of reiterate my earlier responses, which is I do think that people are fairly rational when it comes to these things. And they’ll take the vaccine voluntarily if it’s — when you have the right balance of infectiousness and deadliness that mandates shouldn’t be necessary.
I acknowledge that there could be situations in which they are. I don’t know exactly what the recipe is, but…
Courtney Stone Mirski: Okay. Great. And our next question comes from an anonymous attendee. And this anonymous attendee asks, “What are your opinions on prophylaxis medications as an alternative to the vaccine? As an individual who had an adverse reaction to the first dose, I’ve had a difficult time seeking out alternatives to protect myself because we know very few masks are effective. There have been numerous studies on both ivermectin and hydroxychloroquine so I’d love to hear your opinion on those. Georgetown Law 1L.”
Ms. Younes, you can start first.
Jenin Younes: People love to talk about – you know, I’m not a medical professional. I’ve studied the vaccines extensively because it’s sort of the nature of my job. I haven’t looked into those. And I’m a little bit uncomfortable weighing in on it, to be honest.
Courtney Stone Mirski: Okay. Mr. Hyman.
David Hyman: I would not suggest taking either of them prophylactically. It’s a separate question whether they’re useful to take if you’ve been exposed. And I’m not going to try and characterize the literature on it, partly because I’ll get hate mail from either side, regardless of what I say. This is another of those areas where they either work or they don’t. And your political priors about whether there’s a conspiracy to suppress it or people should not be taking horse dewormer are frankly irrelevant to the empirical question.
So as far as masks, I think a well-fitted effective N95 mask is, in theory, a great solution. In practice, people use them wrong. They take them off. They are not fitted properly. In some ways, it’s similar to the gap between contraception and its theoretical effectiveness versus its in-use effectiveness. Human beings are not that good at wearing things on their faces for that long. And everybody can go on the web and see pictures of people with wheals and other markings from wearing too-tight a mask. So –.
Jenin Younes: [inaudible 00:49:42].
David Hyman: Sorry. Go ahead.
Jenin Younes: No, no. I missed — I didn’t hear masks in there because that I do have a strong opinion on. And I have read extensively. I think they –.
David Hyman: But, yeah. I keep poking at you, —
Jenin Younes: No, no.
David Hyman: — hoping to get a reaction.
Jenin Younes: No, no. The community masking is a nonsense idea, even if in theory. I pretty much agree with what Professor Hyman said. Even if, in theory, a whatever, fit-tested N95 works, it’s not realistic to expect people to go about their daily lives—or desirable—wearing these all the time, certainly not for children. Even medical professionals say that they’re suffocating and that they’re extremely uncomfortable. This is not the way that we should be going. Frankly, we should just be done with all mask mandates, in my opinion.
Courtney Stone Mirski: Okay. And this question comes from Patrick Bailey, a Georgetown University student. And he asks, “If the federal government mandates medical procedures that would otherwise require informed consent, where is the line between that and what the state of Virginia did in Buck v. Bell?” Ms. Younes?
Jenin Younes: Well, exactly. That’s one of the arguments I would be raising if we had gotten to Jacobson. I mean, Buck v. Bell permits the — I mean, one of the differences, of course, is that that doesn’t involve externalities, whereas vaccine mandates do. But, yes, the state should not be in the business of mandating medical procedures, for the most part. That’s — and this is one of the reasons. And I think, actually, Buck shows just how wrong that can go. I think we think of it as a different era, something that wouldn’t happen now, but I don’t think that’s at all evident, especially with what we’re looking at with the vaccines.
I mean, I talk to dozens of people a week, at least, if not more. And I hear some really crazy stories. People who had — a young woman I spoke to who almost died from the flu vaccine, and her employer was still forcing her to get the COVID vaccine, even though he had written a note saying that she really shouldn’t. He really was concerned about it. So now you have administrators at someone’s job are overriding a medical professional’s opinion that’s based on an individual’s assessment of that person’s medical history. It’s very troubling. And I think that’s the territory we’re finding ourselves in, people really being really scared for valid reasons and having to choose between just taking the risk and losing their jobs.
David Hyman: So, just for those who are not up to speed with Supreme Court precedents, Buck v. Bell is, obviously, about the constitutional permissibility of forced sterilization, usually of, not surprisingly, people on the margins of society, as well as the, relatively speaking, disenfranchised. And for those of you who think it was ancient history, the state of California was still sterilizing people into the early 1960s. So this is not — I think we should be cautious in the analogies we use. I don’t think vaccines are of a piece, necessarily, with forced sterilization without consent, for all sorts of obvious reasons.
But even leaving that aside, I think the question you should ask is, “Well, if you think forced sterilization is on one side, and vaccination is on the other side, where in the middle are you drawing the line? And what’s the justification for where you draw that particular line?” And that’s without even taking account to the, I think, very sensible observations Jenin has made about variation. Right? Patients come in lots of variations. They have different preexisting conditions. They have different concerns. They have different prior reactions.
The flip side of that is everybody’s going to have a doctor’s note if that’s enough to get you out of a vaccination. And that was, frankly, the problem when states started allowing moral objections to vaccination of children. That kind of turbocharged the drop in vaccination rates, which is why you see diseases recurring that we never used to see, certainly not when I was back in medical school. They had basically been wiped out. But now they’re back because moms are concerned about autism and reluctant to vaccinate their kids. That’s a tragedy as well.
Courtney Stone Mirski: Absolutely. Absolutely. So this will probably be our last question. We’re coming up on 5:30. So this is from Molly Hogan. She asks, “Since you both have noted that public health authorities have lost the trust of the public, what, if anything, do you think they can do to regain that trust? Do you see potential concerns for trickle-down effects of vaccine skepticism for things like traditional childhood vaccines?” Well, it sounds like potentially yes, Professor Hyman. But what do you think that the agencies can do to regain the public trust? Do you want to start, Professor? Either one.
Jenin Younes: So I think, first of all, to that last point, yes, that’s what’s happening. I’m very involved in this movement, so I speak to a lot of people who are against the vaccine mandates that come from all stripes. And there are a lot of people I talk to who never doubted vaccines who are now starting to look at all the vaccines. So I think as I’ve said earlier, I believe that, unfortunately, this is — the coercion involved here is going to spur a broader anti-vaccine movement that’s going to have long-term detrimental effects.
As for what can be done, well, I think it’s going to take a lot for agencies like the CDC and the FDA to get the public’s trust back. The denial of natural immunity, I think, has been one of the most disturbing things. There has been study after study that shows vaccine—I’m sorry—natural immunity is actually better than the vaccines. And the way that the CDC has tried to frame it and tried to claim that, anyway, you should get the vaccine because it might lead to a minor bump in antibodies, which doesn’t necessarily even translate into a clinical benefit, which means that it might raise your antibody levels a little bit — it doesn’t necessarily show that you’re less likely to get sick or very sick or transmit the disease.
That denial has led to a massive breakdown in trust, I would say. So being more transparent, being more honest, instead of looking like you have an agenda – I mean, people rightly see the CDC as having a vaccinate-everybody agenda, without regard to personal circumstances or any other type of — any other factors that come into play. But I think it’s going to be a long road back to that. And it’s too bad.
David Hyman: Gee. I’ve only got a minute, right? So there’s a former head of the Canadian equivalent of the federal reserve who said, “Trust arrives on foot and leaves in a Maserati.” Right? Once people conclude that you’ve behaved badly, they’re going to be very reluctant to trust you again. And so, it’s going to be a long path to rebuild trust. That includes being more modest about what you actually know and more modest about what you can say. Right? Rather than viewing this as a messaging problem, I think that you need to view it as a competence problem, as well as a confidence problem. And I talk more about that in the piece that I mentioned earlier about government failure in COVID.
And it’s not just the CDC, this is — COVID is a master class in government failure. It’s one of these, everywhere you look, you see problems and things that you thought were being handled and were the core competencies of those respective agencies. And if the reason we delegate authority is because of expertise, they haven’t done so well by that criteria. And so, they ought to focus on the reasons why they exist and do a better job on those core competencies.
Courtney Stone Mirski: Great. Well, thank you both very much. It’s been wonderful having you here today. It was a lot of fun. And we heard a lot of great points on both sides. So, thank you. And I hope you have a great rest of your week.
David Hyman: Thanks much.
Jenin Younes: You too. Thank you so much.
David Hyman: Bye now.
Conclusion: On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.
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University Professor, Founding Linda D. & Timothy J. O’Neill Professor of Global Health Law, Faculty Director of O’Neill Institute for National & Global Health Law, Georgetown University
Director, World Health Organization Collaborating Center on Public Health Law & Human Rights
Scott K. Ginsburg Professor of Health Law & Policy
New Civil Liberties Alliance
Federalist Society’s Georgetown Student Chapter
The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].