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Scott Karson: Striking A Balance

Vaccines are a modern medical breakthrough and have helped save countless lives across the world. While this is widely acknowledged, a vocal minority has crusaded against all vaccines – including the inoculations for COVID-19 that are now undergoing clinical trials.

Recently, we have heard promising results from this research -- effective rates that are above 90% for two of the vaccines under development. Still, as the coronavirus pandemic drags on, international debate has raged over how vaccines are approved, what determines whether they are safe and effective, and who should be the first to receive them.

We all yearn for an end to the suffering and loss caused by this pandemic and to be able to engage with one another face to face. But public health authorities say that will only be possible when the vast majority of Americans are inoculated against the virus.

The New York State Bar Association’s governing body, the House of Delegates, after much deliberation and debate, approved a resolution that calls for the state to consider mandating vaccination of its residents, based on guidelines established by public health experts. We only want the state to take this extraordinary step if a robust public education campaign fails to encourage high enough voluntary participation.  A vaccine mandate could apply to every New York resident or a specific group such as health care workers or students.

Among NYSBA’s core missions is to use the considerable expertise of its members to advise decision makers and elected officials about the legal ramifications and impacts of significant policy proposals. On the matter of vaccines, the  association weighed in based on the belief that the primary function of government is to protect its citizens and keep them safe, and, as such, must consider all possible avenues to achieve that goal.

The intention of the recommendations, which were made to the association’s governing body by its Health Law Section, have been misunderstood at best, and at worst, willfully misconstrued by anti-vaccination activists.

To be clear: NYSBA is not recommending an across-the-board mandate as the first step in vaccination distribution. But it does acknowledge that under the eyes of the law the state is within its right to enact such a mandate if experts and officials deem it necessary.

If one or more vaccines are determined to be both safe and effective by public health authorities, and if a vigorous public education campaign stressing the importance of voluntary vaccination is unsuccessful, it is then incumbent on state officials to take the necessary steps to protect as many New Yorkers as possible.

And it should do so in a manner that ensures access for underserved and vulnerable populations – particularly members of communities of color that have been disproportionately harmed by the pandemic.

This is not a novel concept. All 50 states have instituted vaccine mandates for elementary and college students for many years. In New York, all children enrolled in both lower and higher education must be vaccinated for a variety of illnesses, including polio, mumps, rubella, chickenpox and more. 

Similar to COVID-19, these diseases are both highly communicable and infectious and potentially deadly.

New York last year strengthened its commitment to vaccines as an important tool to protect public health when Governor Andrew Cuomo signed into law a bill ending vaccine exemptions based on religious beliefs. This was in response to the worst measles outbreak the nation had seen in decades, which was significant, but also pales in comparison to the COVID crisis.

NYSBA’s recommendations seek to strike a balance between government’s responsibility to protect the majority of New Yorkers while safeguarding personal freedoms clearly dictated in the Constitution.

As my colleague Mary Beth Morrisey, chair of the Health Law Section’s COVID-19 Task Force, noted: “In balancing the protection of the public’s health and civil liberties, the Public Health Law recognizes that a person’s health can and does affect others.” The exercise of freedom ends when a person’s conduct threatens to visit harm upon others.

It is our responsibility as legal experts to offer guidance to policy makers, which is one that we do not take lightly. That was our goal in drafting and releasing these recommendations. It is our responsibility as a society to collectively protect the least and most vulnerable among us. Our ability to do so defines us as a nation.

Scott M. Karson is president of the New York State Bar Association.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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