84: Vaccine Anniversary and Lawsuit

ROBERT JOHNSON:

This is Public Health Review Morning Edition for Tuesday, December 14th, 2021. I'm Robert Johnson.

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

MIKE FRASER:

If you look at the fact that we've vaccinated, or had 200 million Americans complete their vaccine series, that's pretty incredible.

JOHNSON:

One year ago today, a New York nurse, Sandra Lindsay, became the first American to be vaccinated against COVID-19.

Mike Fraser is ASTHO's CEO. He says the job now is to find a way to convince vaccine-hesitant people to protect themselves from the virus.

FRASER:

You know, I did an article called "You're Blinding Me With Science," which was our typical public health messaging, just to show people the data and tell them to do something—you know, that doesn't work. We know that doesn't work for a big segment of the population, and we're seeing that play out with the vaccine now.

And so, I think we all anticipated some vaccine hesitancy. What we didn't anticipate—and again, there have been instances, obviously, where, you know, the anti-vaxx movement had been vocal—but we didn't anticipate the scale of that. And then, of course, the way that vaccines have become political, become partisan—it's unfortunate. It's going to be one of the last things, legacies, of this pandemic. It's a sad state, frankly, that we're in this place right now.

JOHNSON:

Later today, a New York state Supreme Court judge hears arguments in a lawsuit filed by a New York City Police Department detective against the city's vaccine mandate for municipal workers.

Dorit Reiss is a law professor at the University of California Hastings College of the Law in San Francisco. She discusses the impact of the case in today's morning conversation.

There's a hearing later today in New York City about its vaccine mandate. Are you surprised to see a city doing this at this time?

DORIT REISS:

No. New York City has a history of taking strong measures on public health. They've done the same during the measles outbreak and they've done the same throughout the pandemic.

Once the OSHA mandate was put on hold, I'm not surprised that the city of New York decided to go ahead and impose its own requirements.

JOHNSON:

What do you think will come up in the hearing today?

REISS:

It depends.

First of all, although last week it was reported that the mandate was put on hold—there was a temporary restraining order—the judge later issued a clarification that the judge did not grant the temporary restraining order and is waiting on the hearing to decide this. Apparently, the judge's decision was misread, so it's currently in place.

Reading that petition, I would say the petition's chances are not very good. The petition makes three big claims: one is they're arguing that the vaccines are experimental and therefore you can't require people to take them as a matter of informed consent; second, they're arguing that the mayor of New York does not have the authority to issue the order; and third, they're arguing that it's unconstitutional under due process. Out of these three, only the middle one—the authority of the mayor—has any chance, and I think it's not well put in the petition. So, I would say the chances of this succeeding are low.

JOHNSON:

If the petitioner loses this round, do you think there will be an appeal?

REISS:

I would fully expect an appeal from this.

I would add, even though this may be going a little deeper, the reasons that the other claims probably aren't going to go very far is the first claim—that the vaccine is experimental—is simply untrue. The petition simply ignores the fact that one of the vaccines, the Pfizer vaccine, is licensed. It simply doesn't acknowledge that, and that's not going to fly with the court.

And the other claim—that this violates due process—runs against hundreds of years of precedent that supports vaccine mandate on constitutional grounds.

JOHNSON:

Does this action in New York City have any effect or impact on what's going on with the federal cases regarding vaccine mandate?

REISS:

No, there's—the action in New York is very separate from the federal cases; which, as you said correctly, have now put on hold all three major federal vaccine mandates.

The action in New York is focused on the power of the state of New York to require the vaccine for private employees. Although it refers to the decision of OSHA, that decision was very specific to federal law and the new requirement is not equivalent.

The real question is does the mayor of New York have power to do this. And, although I will say that I'm not an expert on municipal law in New York, I will also say that New York City has a long history of taking strong measures in public health. and historically the courts have acknowledged that it has very broad powers to do so.

JOHNSON:

In other news, ASTHO members are meeting in-person for the first time since the pandemic began almost two years ago. The organization's Winter Leadership Summit started over the weekend in San Diego. It wraps up today.

Policy statements, resilience, and messaging are among topics covered during the session.

Finally this morning: is one of your New Year's resolutions to be more organized or efficient? If so, then you may want to sign up for ASTHO's microlearning entitled "Introduction to Process Improvement."

The self-guided training offers examples, tips, and resources to help you apply process improvement techniques in your daily work. Get more information using the link in the show notes.

That'll do it for today's report.

Make sure to follow us on Apple Podcasts or Spotify. You can also listen on Alexa or Google assistant.

If you have time, we'd be grateful if you could leave us a rating and a review.

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.