22. Shevat 5782

Even as the Supreme Court authorized the Department of Health and Human Services (HHS) to mandate vaccination of all Medicaid and Medicare employees–including those not employed by the federal government,  a Texas court just blocked the federal government from mandating vaccination over its own employees. That case surely will reach the Supreme Court – eventually. One law professor called the decision “insane.” All the while we will grapple with the delay in vaccination – the effect of which, for the moment, is not entirely known. Perhaps, as Nobel Laureates Amos Tversky and Daniel Kahneman wrote, this is all about decision-making under uncertainty? 

Alas, not. This is about decision-making when views conflict regarding whether personal liberty trumps public rights, health, and safety.  This is about judicial ego- and who gets to fill the vacant shoes left by Justice Scalia (coming soon). And this is about who makes legal decisions regarding science- when the science is in doubt.

But according to Judge Jeffrey Brown: the [Texas] case is about: 

„whether the President can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment.”

„I’m sorry, but this is just insane…. The federal government lacks the power to require its *own* employees to be vaccinated?“ Steve Vladeck, law professor, The University of Texas. 

Judge Brown’s question is bizarre. Merely a few days before he issued his decision, the Supreme Court ruled, unequivocably, that the Secretary of Health and Human services can order “millions of [even non] federal employees to undergo a medical procedure as a condition of their employment.” Brown’s decision is clearly a delaying tactic, one tethered to preserving jobs (but then again, I seem to recall that what was Tamany Hall was all about). Delay will serve no good public use.

For sure, the evidence will be in flux when the courts are eventually called to decide; there is rarely certainty in emergencies. The real issue is someone has to make hard decisions during public health emergencies. The question is who – and will there be impediments (legal or otherwise) to immediate implementation of that decision? And what would be the cost or damage of such delay?

The uncertainty:

Some may claim that the damage from delay in vaccinating when omicron is the primary variant is minimal or even non-existent since the first press report indicated the vaccine is not effective against Omicron. The buzz this single, small, preliminary, non-peer-reviewed report generated in the non-medical (and non-legal) community was astounding. Even previous vaccine supporters are now claiming vaccination isn’t warranted. Yet, it’s not even clear what exactly that study measured – antibody response? (and if, so which) — or viral load – or actual transmission. I’ve read different reports saying different things. The “official” results, described with astounding scientific precision, were reported in the venerable scientific journal USA Today on January 17:

“We see many infected with Omicron who received the fourth dose. Granted, a bit less than in the control group, but still a lot of infections.” Gili Regev-Yochay, MD, director of the hospital’s infection prevention and control units, Sheba Medical Center.

Reports of four subsequent studies issued very shortly thereafter somehow got far less attention. Interestingly, these all showed that “Covid vaccines offer… significant protection against omicron.” One study was conducted in the same Sheba medical center as the one claiming the vaccine doesn’t work. This one was done in collaboration with the Weizmann Institute and Hebrew University, and reported that vaccination halved omicron transmission in children 5 to 11 and a fourfold decrease in transmission in 12 to 15- year olds, the age groups which are the predominant spreaders of disease – in Israel.

And then there are the three studies released on Friday, Jan 21; two by CDC, and one published by JAMA the Journal of the American Medical Association, attesting to the benefits of three vaccines in stemming severe omicron cases. But this benefit, if it only relates to preventing severe cases, will surely throw the court into disarray as the issue surrounding health care worker vaccination is to prevent transmission of all cases  – not just severe ones. 

The shape-shifting of the reports demonstrates with absolute certainty- that we really don’t know what the impact of vaccination against omicron is and probably won’t for some time. Nor will we know whether preventing severe disease is in some way related to reducing overall transmission. Regarding delta, the predominant variant at least in Israel in serious cases, however, the verdict is in far less doubt:

Even Regev-Yochay said that “The vaccine still works well against the Alpha and Delta variants…” 

If Delta is still circulating, that fact should be determinative. But what if it isn’t= what if the only virus circulating is one for which the vaccine only prevents severe disease but doesn’t stem transmission? Or perhaps the two issues are inter-related? 

The critical issue – at least for legal purposes- is not whether reports sustain mandated vaccination when omicron is the main variant. The issue is not what happens if the science is in doubt. The issue is who makes the determination regarding public health emergencies. 

Given that the HHS case mandating vaccination in all Medicare and Medicaid workers will again be heard by the 5^th and 8^thcircuits – that the medical and scientific evidence before them will likely be contradictory – and that likely these circuit courts will — on the basis of whatever data supports the lack of efficacy against the omicron variant- strike down the mandate, the matter will surely return to the Supreme Court -down the road.

We cannot estimate the damage that will occur during the interim – other than delta will continue to be trafficked, that elderly people will continue to die, and that youngsters will continue to spread the omicron variant, likely infecting health care workers, who will pass the disease on to their wards in Medicare and Medicaid facilities.

So, how does the Supreme Court decide when the science isn’t capable of deciding?

Nowhere is there more of a conflict between law and society, perhaps, than in the interface between law and science. This is not new. The fact is that law lags behind the science. There is an inherent conflict in the two systems, compounded by a preponderance of scientifically illiterate and disinterested Judges and lawyers. The Daubert decision (1993) – written in the wake of the junk science of the 1980s and 1990s which brought down companies and embarrassed the law –was ensconced to remedy the latter issue. Thousands of pages of been written arguing that the decision favors one side or the other. After personally speaking with then -Chief-Justice Rehnquist and doing significant research, I’ve come to the conclusion it does neither. It forces judges to pay attention to that which is profferred as scientific evidence, and not be swayed by sympathetic plaintiffs or expensive experts. Until recently, it worked pretty well to keep both sides “honest.”

But there is an inherent problem between science and law that cannot be remedied: Science is ever-changing; scientists are encouraged to renew, review, re-investigate their findings. Law seeks finality and closure (1). Nowhere does this frisson manifest better than the recent supreme court cases regarding vaccination.

The lesson to be learned here is that the first reports off the lay-press – are not always correct – any more than the CDC’s opinions or advices. The Daubert decision sets standards for evaluating science- even when such science is subject to change. One is peer-reviewed literature. Hot-off-the press reports don’t count.  The Frye decision, which is still the law in seven states, requires decisions to be made on the consensus of the scientific literature and the consensus view of the medical and scientific communities. Whether these views will change over the next few months remains to be seen- although the most recent reports suggests that the public health community will still favor vaccination.

That view holds much weight, as the HHS case clearly tells us:

‘Healthcare workers and public health organizations overwhelmingly support the Secretary’s rule,” specifically noting the American Medical Assn. the American Public Health Assn, among others. Indeed, their support suggests that a vaccination requirement under these circumstances is a straightforward and predictable example of the “health and safety” regulations that Congress has authorized the Secretary to impose. 

The question is not whether persuasion is better than mandates – as some would have us believe. It most certainly is. The question is when persuasion doesn’t work – or when there isn’t time to find out if it does- are we legal allowed to compel vaccination (as undesirable as this may be). The answer is clearly yes. Under certain circumstances.

The fact of the matter is that mandates work. They may not be pretty or desirable – but they work, as recent data from Canada clearly shows  . And mandates are – under the right circumstances- entirely legal and constitutional. The issue to face the court is: are these the right circumstances? 

The legal issues will continue. Regardless of the upcoming Supreme Court decisions on vaccine mandates- what will happen when state court decisions conflict? Florida and Montana state laws ban vaccinating health care workers; Maine requires it- even eschewing religious objections. Whose laws govern- or legal parlance, does the federal pre-emption doctrine apply? And will Supreme Court precedent be reliable – or will the justices changes their stripes depending on whose views they wish to curry? As unthinkable as this might be, there is evidence to suggest it may be the case. (Stay tuned).

(1) Public Health Law: Power, Duty, Restraint

By Larry Ogalthorpe Gostin, Lawrence O. Gostin at 282,283

Kategorien:Barbaras' and Norman's corner

Schlagwörter:COVID