Some lawyers and law professors immersed in the small-but-often-passionate field of vaccine law are pushing back against a New York State Bar Association Health Law Section report that has called for mandatory COVID-19 vaccinations for all Americans, including for those who won't want the vaccinations for "religious, philosophical or personal reasons."

Ranging from criticism of the bar association group's interpretation of constitutional-based case law on state police powers to distinguishing between how certain case law may be applied to children versus adults, the lawyers and law professors make their case, as did the bar association group in its report, largely by citing case law and using legal argument.

Still, policy-based arguments also ran through statements made by the lawyers and law professors to the New York Law Journal in the last three days.

The bar association's Health Law Section "is a consortium of attorneys who should stick to the law, and avoid delving into an area of fundamental medical policy making, and [avoid] boldly declar[ing that] for the 'sake of public health, mandatory vaccinations for COVID-19 should be required in the United States as soon as it is available,'" said Rockland County-based solo practitioner Patricia Finn in an email to the Law Journal in which she quoted part of the bar association group's argument laid out in its report. Finn added that she represents many people and families injured by vaccines or who have refused to take vaccines despite orders to do so.

In then taking on arguments made by the bar association group, such as its COVID-19 task force saying that a range of federal and state cases support a vaccine-taking mandate when "individual interests are not strong enough to outweigh the public benefit," Finn wrote that "while previous constitutional challenges under the religious freedom clause under the First Amendment and under the substantive due process clause of the Fourteenth Amendment have failed, none of the cases cited by NYSBA [Health Law Section's task force, which authored the report] address [the] failed safety and efficacy of the mandated vaccinations, or the requisite necessity and 'lack of a public emergency' required by" the U.S. Supreme Court in Jacobson v. Massachusetts, a landmark 1905 decision pointed to by the task force.

"It is not as clear[-]cut as [the] NYSBA [group] makes it out to be, [that] there will be a watershed of cases until the Supreme Court clarifies what Jacobson said when it declared there must be 'grave danger' that imperils society to mandate a vaccination, and the vaccine must be necessary, harm avoidant, proportional and non-discriminatory," said Finn in a detailed email.

The lawyers' and law professors' views come in the wake of a Law Journal article published May 28 on the bar association group's case-law-based recommendation that a COVID-19 vaccine, if and when one is available, must be taken by all Americans. The one exception, said the group's report, which was released publicly by the bar association on May 28, would be for people whose doctor directs that, because of medical reasons, they can't take the vaccine. The full bar association, which boasts some 70,000 members, has not decided yet whether to adopt the Health Law Section's recommendation. That decision will come June 27, through a vote of the bar association's governing body.

In recent days, meanwhile, the Law Journal article itself has generated a firestorm of response on Facebook. Independent-from-government-minded groups across the country, including some on the right of the political spectrum, along with anti-vaccination groups, have shared the article in droves and group followers have commented, sometimes by the hundreds. The comments have often have been laced with concern or vitriol. Many commentators have stated that they would protest a mandatory vaccination. Other have said that no government will ever be able to make them take a coronavirus vaccine that they say isn't necessary, could be dangerous, and springs out of a supposed pandemic.

Some of the same concern and vitriol has flowed online to the state bar association and to the reporter who wrote the Law Journal article. One reader even asked if the article was real, or if it was a "fake news" site he was seeing.

This week, the Law Journal spoke with some lawyers and professors who take diverging views from the bar association on the legality of making a potential COVID-19 vaccine mandatory. While the vaccine law field, according to Finn, is very small because it is hard to recover money for people made sick or injured by taking a vaccine, several lawyers and law professors readily responded to Law Journal inquiries.

At the same time, the bar association's Health Law Section itself responded late Wednesday to the opposition from those lawyers and law professors, saying in part that its "report rests on a body of well-established law."

The section's task force on COVID-19 chairwoman also underscored—multiple times—that her group's report only "suggests the need for mandatory vaccination, when a safe and effective vaccine becomes available."

In its report last week, the task force discussed, among other case law, the U.S. Supreme Court's Jacobson decision, saying, for one, that it made clear 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."

Then, in pointing to other constitutional law-focused cases, including the Supreme Court's 1990 decision in Cruzan v. Director, Missouri Dept. of Health, the group wrote that "constitutional challenges under the [U.S. Constitution's] religious freedom clause … and under the substantive due process clause … have failed, when the individual interests are not strong enough to outweigh the public benefit."

While countering some of those same task-force points in an email Tuesday, University of California Hastings College of the Law professor Dorit Reiss said "it is not clear a universal mandate would be constitutional today," as opposed to in 1905, at least when it comes to American adults.

"Substantial academic literature suggests that a mandate for adults would have to meet a higher bar today than in Jacobson v. Massachusetts, in 1905," wrote Reiss, whose research in part examines vaccine exemption laws and tort liability related to nonvaccination.

She added that the "only known example of a state imposing such a mandate in the past century" was during a 2019 measles outbreak that largely happened in several Brooklyn-based Orthodox Jewish communities. And in that case, she said, Brooklyn Supreme Court Justice Lawrence Knipel upheld a New York City mandate, supported by a $1,000 fine, for vaccinations of residents in three neighborhoods.

"Not only was the ruling … made by a trial court," as opposed to a higher court, said Reiss, "the fine was limited to three neighborhoods in which the outbreak was at high rates, not universal, and it was a moderate fine."

"Although there is no clear jurisprudence on this, a universal mandate—as opposed to a mandate on specific populations with special considerations, like school children or healthcare workers—may not pass muster" if litigated today in a COVID-19 vaccine or other vaccine-focused case, she said. "Especially," she noted, if the mandatory vaccine-taking is "backed by more than a low-to-moderate fine."

She also said "police powers," as referred to by the Supreme Court in Jacobson, "belong to the states" and not to the federal government.

"The federal government likely does not have authority to mandate a vaccine for everyone," the professor wrote, adding that "the [federal] Vaccinate All Children Act is specific to children — and instead of directly requiring a mandate, simply conditions certain funds" to be given to states based on a requirement that children take certain vaccines.

Finn, in her email on Wednesday, countered the bar association group's mandatory-vaccine argument by saying it was her "understanding … that Supreme Court in Jacobson held no substantive due process right to refuse a mandatory vaccination in an emergency, but further held there must be medical and religious exemptions."

"A compulsory [COVID-19] vaccination would be a legal challenge I would be happy to take on," she said, before adding that her argument would largely center "on the safety and efficacy of the vaccinations, and lack of a perceived public health threat from [COVID-19] or any other vaccine[-]targeted illness."

"Even police power has its limitations," said Finn, and "it is worth noting, to date there … have been no challenges to a 'mandatory vaccination' based on safety and efficacy."

Moving to a policy argument, Reiss said that "requiring a general mandate is likely premature and can backfire," and that "depending on patterns of disease, covering the people who want the vaccine may be enough to generate herd immunity."

Still, Mary Beth Quaranta Morrissey, the bar association Health Law Section task force chairwoman, a lawyer who also holds a gerontological social work research doctorate, said in an extensive statement Wednesday that mandatory vaccinations have been "upheld by the courts as a valid exercise of the state's police powers in protecting the common good," and that a future decision to require a COVID-19 vaccine would "rest" in part on "fact-specific findings of public health need as the result of a continued grave threat to the public's health."

"New York, in fact, is now in a declared public health emergency, with over 24,000 deaths due to COVID-19," she said, and "nationally, deaths from COVID-19 exceed 108,000."