78: Vaccine Mandate Prediction

ASTHO Chief Medical Officer Dr. Marcus Plescia says influenza and COVID-19 have a lot in common, as National Influenza Vaccination Week kicks off today; Professor James Hodge Jr., at the Sandra Day O’Connor College of Law at Arizona State University...

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ASTHO Chief Medical Officer Dr. Marcus Plescia says influenza and COVID-19 have a lot in common, as National Influenza Vaccination Week kicks off today; Professor James Hodge Jr., at the Sandra Day O’Connor College of Law at Arizona State University in Phoenix, predicts the fate of several federal vaccine mandates now held up in courts around the nation; and the CDC Foundation, ASTHO, and other groups kick off a series of conversations about the future of public health today.

CDC webpage: 2021 NIVW Digital Media Toolkit

Bio: Professor James Hodge Jr.

CDC Foundation: Lights, Camera, Action Summit Series

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This is Public Health Review Morning Edition for Monday, December 6th, 2021. I'm Robert Johnson.

Now, today's news from the Association of State and Territorial Health Officials.



So far, I think the signs are that people are taking influenza more serious than they have in past years.

But again, I think, you know, as we move into December and January, that'll be the really important time when we actually start seeing how that's playing out, as far as how many cases we start to see.


That's the voice of ASTHO chief medical officer Dr. Marcus Plescia talking about the looming flu season as National Influenza Vaccination Week kicks off today.

Last year, there really wasn't a flu season because of social distancing, masks, and other steps people took to avoid the COVID-19 virus. But unfortunately, the flu is expected to make a comeback this year. Plescia says the flu and COVID-19 have a lot in common.


The flu is a really good comparison because it's endemic. The influenza is an endemic infectious disease—it doesn't go away, we have to deal with every year. It changes every year, so we have to tailor our interventions—mostly the influenza vaccine—against whatever strain of influenza is circulating; and that's probably what we're going to see with COVID.

The big difference between COVID and the flu is the COVID is more deadly than the flu; but people lose sight of the fact that the flu kills thousands of people every year as well.


The CDC has a webpage featuring tools with resources to help public health agencies communicate important influenza messages.

You can find it using the link in the show notes.


Several of President Biden's vaccine mandates are now on hold in courts across the U.S., but one legal expert predicts they'll survive those legal challenges.

Professor James Hodge studies public health law and teaches at the Sandra Day O'Connor College of Law at Arizona State University in Phoenix. He considers the legal future of the mandates and offers advice to federal and state leaders in today's morning conversation.

The vaccine mandate for healthcare workers is now on hold. The mandate regarding federal contractors has also been blocked, at least temporarily, as has the workplace vaccinate or test order.

Is this the beginning of the end for vaccine mandates during this COVID-19 pandemic?


Well, it's a relevant observation.

Courts have been all over these specific issues, and several of these decisions do look bad for those specific purposes, each of which you described accurately as far as particular courts shutting down federal mandates that are designed to actually, of course, raise the national level of vaccination.

But let's be clear: these early opinions, these are tentative. They will all be subject to appeal. The Supreme Court of the United States will very likely get a hold of this and issue, I think, definitive guidance on how far the federal government can go.

But the reality is, at the federal level, we're seeing challenges with some early success. If I converted all these mandates to state-level approaches, those are generally going through without any concerns against the backdrop of litigation.


So, the distinction is the federal government is the one making these decisions? That's the problem?


That's right. And when the federal government's gotten involved through President Biden's sort of leadership and administration, through OSHA, through CMS, through what he can do to regulate federal contractors, that's what's gotten the courts' major attention at the federal district and appellate court levels. When states are involved, of course, they've consistently had the ability to set vaccine mandates. Those that have generally pass with flying colors.


All of these involve the federal government essentially telling private business what to do—if you want the money, you have to do this. Is that a key distinction in these arguments as well?


Well, it could be, but the reality is the biggest distinction I think we're seeing is just how far states—already up against what we'll consider in some ways to nihilistic approaches to the pandemic—how far are states willing to see the feds go towards dictating what vaccine policy should be in their jurisdiction?

So, you're seeing, like in prominent states like Texas, they're really up against that on federalism grounds—not so much on how far federal power goes to distribute money, but can the federal government, actually on pure federalism grounds enter, into a domain traditionally left to states? That's the biggest overriding argument here. We're going to see how it plays out.


You've followed all sorts of public health law over the last couple of decades. Were you surprised, or did you expect to see these early court decisions regarding all of these mandates?


I'm surprised to see three decisions on three different fronts in three different courts in Kentucky and Missouri, and again, another decision out of Texas that issue contrary opinions in relation to what we're seeking to accomplish through federal mandates. Yes, I'm surprised by that.

I do not expect them to remain in place. Higher level courts will have an opportunity to review each one of those; and I believe, in the end, the federal government will prevail on each of those mandates, especially with the looming threat of Omicron out there as a variant that could make vaccination all the more essential.


So, really on the grounds that we're dealing with an emergency here.


That's a big part of it.

Listen, we can never lose sight of the fact that we're still in a public health emergency at the federal level. We're in a declared state of emergency—that gives the federal government distinct powers that are maybe different than what they have day-to-day; but they're executing on those powers.

They've gotten serious about federal mandates for vaccines because they're literally watching the national security interest at stake and responding affirmatively.


Given that, if you were the attorney counseling the White House on the state's looking for a way to get holdouts vaccinated, what would you advise in the wake of all of these early rulings?


I would advise to very cautious and optimistic about what and how far these initial decisions can go.

For example, you know, what you saw out of Kentucky, the Eastern District Federal Court in Kentucky issuing an opinion that it believes applies to three different states basically set inside the federal contractor rule. It knows that decision's going up to the Sixth Circuit Court of Appeal in Cincinnati, and it knows the Sixth Circuit Court of Appeal is also reviewing OSHA's standard applying to employers.

As those decisions come forward, I think you'll see greater consistency and uniform level of approach to how far the feds can go to vaccinate. And basically, I'd bank on the following: be prepared to vaccinate your population because federal and state governments in so many ways need to see that happen for the safety of the nation.



Finally this morning, the CDC Foundation, ASTHO, and others kick off a series of conversations about the future of public health.

The first discussion in the Lights, Camera, Action Summit series is set for later this morning at 11:00 AM Eastern time. Topic number one: achieving a diverse and effective public health workforce.

You can register for the summit using the link in the show notes.


That'll do it for today's report.


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Be sure to join us again tomorrow morning for more ASTHO news and information.

I'm Robert Johnson. You're listening to Public Health Review Morning Edition. Have a great day.

James G. Hodge JD

Director, Peter Kiewit Foundation Professor of Law: Center for Public Health Law and Policy, Sandra Day O'Connor College of Law,

Marcus Plescia MD MPH

Chief Medical Officer, ASTHO