Will Children be required to be vaccinated to attend school?
As the United States seemingly gets Covid-19 under control because of mass vaccinations, children under sixteen years of age remain the missing piece of so-called “herd immunity”. While the FDA has not approved vaccinations to be administered to children, the three main Covid-19 manufacturers in the United States, Pfizer, Moderna, and Johnson & Johnson, are in differing phases of clinical trials to determine the efficacy, dosing amount, side effects, and frequency for children of all ages. Pfizer already reported that its vaccine is safe for children between the ages of 12 and 15.
The proverbial “elephant in the room” is whether public schools, assuming the drug companies can get emergency use authorization, will require children to be vaccinated in order to attend schools in the Fall. While public schools are permitted to mandate vaccinations for public health purposes, subject to individual state laws and with certain exemptions for medical, philosophical, and religious reasons, ting Covid-19 vaccinations would create a debate and likely result in legal challenges given the extraordinary circumstances involving the fast-tracked emergency use authorizations that exist today for Covid-19 vaccines.
State’s authority to require vaccinations is based on Supreme Court precedent of more than 115 years. In Jacobson v. Massachusetts, 197 U.S. 11(1905), the Supreme Court upheld the right of states to enforce mandatory vaccinations. However, the Court recognized for some individuals a vaccine could be harmful, thereby, creating a medical exemption if it would be unduly harmful for an individual. Supreme Court upheld the right of states to enforce mandatory vaccinations.
The Supreme Court has addressed subsequent challenges including on grounds of the Equal Protection Clause of the 14th Amendment and First Amendment religious claims, and in each case the court has upheld the right of states to pass laws mandating vaccinations. With that said, the implementation of a mandatory novel vaccine that has undergone limited testing for a short period of time, may be fertile ground to challenge a mandatory requirement where the risk of children may be at hand.
Just a few of the questions that will arise concerning developing children are whether Covid-19 vaccinations impact brain development, growth, fertility, or potentially cause other health problems. And, whether the risk to children in having dangerous side effects from Covid-19, which the United States government including the CDC has said is minimal, outweighs the risk of side effects from a vaccine that has undergone limited testing, by ordinary circumstances, especially when considering a developing child.
Accordingly, it will be interesting to see if the public school system will delay mandating for an additional school year to require Covid-19 vaccinations for children to allow for additional research and testing of the vaccines or will there be immediate challenges to state mandates.
FLORIDA LEGISLATIVE UPDATE
On April 19, 2021, Florida’s Governor, Ron DeSantis, signed into law Florida’s Combating Public Disorder law, which is also known as the “anti-riot” bill. The law amends various Florida statutes including civil and criminal statutes by defining a riot, changing law enforcement budgeting policies, adding penalties for crimes committed during riots, waives sovereign immunity in tort actions and recovery limits during a riot, and allows local governments to be sued if a local municipality does not protect persons and property during a riot or unlawful assembly.
This new law is not without controversy and support, and it will be challenged in court on various constitutional grounds including due process violations and 1st Amendment rights. On the one hand supporters argue the new law is necessary to protect individuals, businesses, and law enforcement from harm during riots and unlawful assemblies, which have seen an increase in recent years.
Whereas those opposing the law believe it will stifle free speech and the right to peaceably assemble, which every individual has the right to exercise in the United States. Balancing these opposing, but important views will fall to the courts in the coming years, and it will probably be a litmus test for other states who seek to implement similar laws.