NY Bar Urges State To Consider Mandatory COVID-19 Vaccine

By Justin Wise
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Law360 (November 9, 2020, 8:34 PM EST) -- The New York State Bar Association is calling for the state government to at least consider making a COVID-19 vaccine mandatory once it's available, if medical experts agree that's the best route to getting the pandemic under control.

The state bar's House of Delegates approved the resolution Saturday, just before Monday's announcement from drugmaker Pfizer and biotech firm BioNTech SE that their vaccine proved to be more than 90% effective in its latest trials. Pfizer said it plans to submit a request for a federal emergency health authorization soon, to begin the path toward mass distribution.

The state bar resolution follows NYSBA's creation of a task force addressing "unique legal and ethical questions" raised by COVID-19. The body delivered a final report including recommendations on how to "further ease challenges" posed by the health crisis in New York.

It stipulates that a vaccine mandate would include exceptions for medical reasons and only be warranted in the event that there is a scientific consensus that immunity levels aren't thwarting COVID-19's spread and reducing mortality rates. It also said that any mandate must come after "reasonable efforts" to promote public acceptance of a vaccine, assessments of the virus threat in certain communities, and an agreement from medical experts about the safety and efficacy of the drug.

"The authority of the state to respond to a public health crisis is well-established in constitutional law," Mary Beth Morrissey, the chair of the NYSBA Health Law Section's COVID-19 Task Force, said in a statement. "It may become necessary to require that certain individuals or communities be vaccinated, such as health care workers and students, to protect the public's health."

The language in the resolution is a less authoritative stance from the COVID-19 task force's drafted recommendation in May calling for all New Yorkers, except those exempted by a doctor, to be required to take a vaccine once a safe and viable one was available. NYSBA previously said the report's recommendations were debated among members of the House of Delegates before being tabled for further study ahead of its November vote.

In its revised September report, the task force said that mandatory vaccinations are "supported by the authority of the state police power when the vaccinations are necessary to protect the health of the community." It also cited cases where religious freedom and due process challenges have failed.

A group of parents over the weekend organized a rally protesting the state bar as it deliberated on its health recommendations, attorney Patricia Finn told Law360.

Finn, whose website says she represents individuals who refuse vaccines for religious reasons, said in an email that "it seems as if NYSBA considered some of the comments from the community, and passed a resolution more in line with existing laws than what had been proposed earlier this year."

"Not sure why NYSBA, an association of lawyers, saw any need to pass anything about the medical appropriateness of a COVID mandate," she added, calling for it to instead focus on "civil liberty issues" related to masks and school closures, among other things.

Finn also said that "parents opposing forced vaccines supported candidates in the election that were in favor of restoring religious exemptions," claiming the issue would be addressed again in the New York Legislature.

Following measles outbreaks in New York and other regions in the U.S., New York lawmakers in 2019 approved legislation eliminating religious exemptions for vaccines in state schools.

In October, New York Gov. Andrew Cuomo, a Democrat, released a draft administration plan for the distribution of a vaccine for "all New York residents who want one." The policy also lays out an effort to make sure high-risk populations and frontline health care workers receive vaccines first.

Cuomo's office did not immediately return a request for comment from Law360 on the state bar's recommendations.

The U.S. has reported more than 10 million confirmed cases of COVID-19, according to a Johns Hopkins University database, and has seen a pronounced surge in daily infections in recent weeks.

Meanwhile, about six in 10 Americans said in October that they would take a vaccine as soon as it's available, according to a poll from Stat News and The Harris Poll.

In addition to its recommendation on considering vaccine mandates, the state bar urged government officials to ensure more vulnerable populations are treated "ethically and without discrimination" and to release older prisoners and those with disabilities and serious illnesses who do not pose a danger to communities.

"The United States was unprepared to deal with this pandemic," NYSBA President Scott M. Karson said in a statement. "We need to take these actions to be sure we are ready should there be a rise in New York's caseload during the cold winter months."

--Additional reporting by Adam Lidgett. Editing by Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.

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