Vaccine law is coming into the public eye in the wake of the COVID-19 pandemic. The legal framework surrounding this subject is complex, and it varies greatly from case to case.
Fortunately for students at the FIU College of Law, Brian Abramson ’96, MS ’02, JD ’05, who is an expert in vaccine law, is lecturing at the university on the topic this summer. Author of Vaccine, Vaccination, and Immunization Law, he has been studying how vaccines intersect with U.S. law for more than a decade. Abramson offers the course online from FIU in DC, which helps to facilitate academic activities in D.C.
“It is one of the most thrilling things to me to get up and talk about vaccine law. Now I’m teaching a class, which is two and a half hours of talking about the material. So I’m thrilled and overjoyed to be teaching the subject and to teach it at FIU, where I came from, that’s an extra layer of fulfillment,” Abramson says.
FIU News recently sat in on a class to learn about some of the main areas of vaccine law.
The class begins with a topic that is as hot in the modern day as ever. As millions of people around the world are offered vaccines for COVID-19, a legal question keeps surfacing: Can U.S. citizens be compelled to take vaccines?
The answer depends on who you are, Abramson says. It matters which vaccine you’re taking, how old you are, where you live, what job you do, whether or not you are incarcerated and many other factors.
“If you think about it, there’s no other drug the government tells you to take,” Abramson says.
The law boils down more so to what states mandate than what the federal government says (although most states follow the advice of the Centers for Disease Control and Prevention). There hasn’t been a Supreme Court case focused solely on vaccinations since Zucht v. King in 1922, when the court ruled that states can prohibit unvaccinated students from attending school.
Today, Florida requires all children entering Kindergarten to receive immunization for six diseases: DTaP, IPV, MMR, Hep B, Tdap and Varicella.
An earlier vaccine-related case, the 1905 decision in Jacobson v. Massachusetts, is often held up by lawyers as an example of where government officials have absolute baseline power to act in favor of the public good. Leading up to the decision, a Cambridge pastor was claiming that his state’s mandate to take a smallpox vaccine was in violation of the Fourteenth Amendment. The Supreme Court ruled that it was not a violation, stating that the mandate fell within Massachusetts’ right to set reasonable requirements for the safety of the public.
The ability of the state to act generally for the benefit of citizens, also known as police power, has been quoted in several vaccine-related lawsuits since. In fact, legal precedent has developed for prisoners in the United States to be administered vaccines even if they don’t want them.
In Smith v. Floyd, a prisoner submitted to a vaccine for tuberculosis after a nurse told him he had to take it. His arm became swollen and he suffered medical complications. But the courts did not side with his claim that his rights were violated because prisoners have limited rights and they live in tight spaces that can encourage disease outbreaks.
In general, government entities are often allowed to mandate and administer vaccines in response to public health concerns. However, this police power of sovereign immunity has its limits.
At the turn of the 20th century, there were instances in which minorities and immigrants were forcibly vaccinated. And while immigrants to the United States are required to receive a number of vaccines to this day, minority populations a century ago were being singled out to take questionable doses.
In the early 1900s, San Francisco officials targeted Chinese members of the community to take a newly developed vaccine. They justified their actions by saying they were taking the necessary steps to avoid a plague. However, other people in the city weren’t required to take it. And Chinese recipients of the vaccine were reporting horrible side effects.
The vaccine mandate was struck down in court.
“You can’t have a vaccine mandate that is a violation of equal protections,” Abramson says.
Government workers adapted by claiming to identify vaccine recipients by identifying neighborhoods where they were needed. These areas happened to be majority Chinese neighborhoods. This attempt didn’t work either.
Although much of the framework regarding the requirements and limitations of vaccine mandates has been fleshed out, COVID-19 has raised numerous new questions—especially in an international context. For example, while immigrants to the United States are required to receive vaccines, tourists are not. That may change, Abramson adds, citing how many other countries already require proof of vaccination for tourists visiting their countries.
“I think there is reasonable expectation that countries will require proof of vaccinations for non-American [tourists] during the COVID-19 pandemic,” Abramson says.
There is no legal precedent yet for a vaccine passport either. But that may change.
Other topics covered by the course include FDA regulation of vaccine safety and effectiveness, distribution during a pandemic and compensation of injuries allegedly caused by vaccines.
"The course hasn’t ended yet, but I have learned a tremendous amount of information regarding mandatory vaccinations," law student Ayesha Arain says. "I think this course will be beneficial in the future since I plan to pursue a career in immigration law. Individuals who want to immigrate to the United States are always required to get certain vaccinations. Knowing what vaccinations are legally mandatory will help guide my clients, especially those clients that do not wish to get vaccinated."
With this class, students are learning how vaccine law came to be and what may happen next.
"This course is not only pertinent to the world, but I have worked as an occupational therapist for over 20 years, and vaccinations have always been a big deal, both for patients and employees. And that would always spark a debate," law student Kelley Denney says.
"I feel like this class provides a lot of value. I didn't know there was a field of vaccination law— and having worked in a hospital where there is so much discretion and information, it's just so interesting."
Students who are interning in Washington, D.C., this summer took advantage of the proximity of the class by accepting an invitation to sit in. Graduate student in global affairs Joshua Naraine '17, who is interning at a think tank, remarked how the experience reinvigorated his passion for law.
"Honestly, I was surprised by how extensive vaccine law is. I never really looked at it. The procedure and process that goes into a vaccine being mandated, that was very cool for me to see," Naraine said.