...And for patent waivers for life-saving inoculation drugs...
UPDATE 8/12/21 U.S. Supreme Court upholds Indiana University COVID vaccine mandate...
By Ernest A. Canning on 8/2/2021, 10:58am PT  

In the short term, the U.S. government can and should compel all citizens, other than those for whom the COVID vaccines may be medically contraindicated, to be vaccinated at the government's expense. It should also insist that the major U.S. pharmaceutical companies contractually waive their right to enforce their COVID vaccine intellectual property rights before a World Trade Organization (WTO) tribunal.

Long term, if we place a greater value on human life than we now do with respect to obscene levels of wealth accumulation by a privileged few, both the U.S. and other governments should renegotiate the TRIPS agreement so as to eliminate intellectual property rights of pharmaceutical companies over life-saving vaccines developed with the aid of public monies.

Alternatively, the U.S. and other governments should take a hard look at whether their respective pharmaceutical industries should be nationalized...

Medical necessity

Despite Dr. Anthony Fauci's dire warning last February that near universal vaccinations provide the only means to defeat COVID-19 and to prevent future viral mutations --- and despite widespread vaccine availability within the U.S. --- as of July 26, only 49.1% of the U.S. adult population had been fully vaccinated, according to the Centers for Disease Control and Prevention.

Because the lag in vaccinations has been linked, in no small part, to right-wing "disinformation and misinformation campaigns designed to suppress the science and sway people from getting immunized against the virus", it is not at all surprising to find a wide comparative difference in vaccination levels between "blue" and "red" states --- and even between "blue" and "red" counties within each state!

In Vermont, where 66.4% of the electorate voted for Biden in the 2020 Presidential Election, 67% of the population has been fully vaccinated. That's nearly double the meager 34% of fully vaccinated people in Alabama, where 62.2% of the electorate voted for Donald Trump.

There can be no question but that vaccine disinformation has had deadly consequences. The unvaccinated account for 99.5% of all recent COVID deaths.

Neither President Joe Biden's use of the bully pulpit to intellectually persuade the reluctant and misinformed, nor the more recent effort by Alabama's Republican Governor Kay Ivey to shame them into getting vaccinated, have been particularly successful. (Like Alabama, only 34% of the residents in the Magnolia State have been fully vaccinated. Though there is some sign that recent campaigns are having a positive effect.)

It is helpful that, as The Washington Post recently reported, "President Biden announced...that all federal employees and on-site contractors will have to be vaccinated against the coronavirus or be required to wear masks and undergo repeated testing." However, federal employees account for less than 6% of the U.S. workforce.

The U.S. Department of Justice's Office of Legal Counsel (OLC) issued a legal opinion that the federal Food, Drug & Cosmetic Act doesn't prevent either public or private employers from mandating that their employees get vaccinated.

But the mere existence of an employer "right" to mandate vaccinations is a far cry from achieving the vaccinated percentage needed to acquire herd immunity to COVID within the U.S.

Legal justification

One of the principal arguments presented by those opposing mandatory masking and vaccinations, Johns Hopkins researchers observed, lies in the belief that "following mandatory public health rulings violates one's civil rights".

Our nation's founding was built, in no small part, on a rejection of this form of extreme and self-centered individualism when it poses an undue risk to public health and safety, and the court's have repeatedly done so as well.

In 1777, during the Revolutionary War, General George Washington ordered the mandatory inoculation of the entire Continental Army. Two years earlier, in 1775, Washington ordered inoculation of the Continental Navy fleet.

While Washington's orders were confined to the military and predated the Constitutional Convention, the issue of the constitutionality of compulsory vaccinations appears to be a matter of settled law. In Jacobson v Massachusetts (1905), the U.S. Supreme Court rejected a legal challenge to a Cambridge ordinance which mandated that, with limited exceptions, all residents must be vaccinated against small pox.

"The liberty secured by the Constitution of the United States," the Court observed in Jacobson, "does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State." Thus, the Court held, "It is within the police power of a State to enact a compulsory vaccination law." [Emphasis added].

In 1987, a Texas appellate court, citing multiple federal and state cases, rejected an effort to contest the Lone Star State's mandatory seatbelt law because, they held, the law bore "a rational relationship to reducing injuries and/or fatalities in traffic accidents."

Morally, as well as legally, the case for mandating both COVID vaccinations and mask wearing is far more compelling than seatbelt laws. If you fail to wear to a seatbelt, the person most likely to be hurt is you. If you refuse to receive a COVID vaccine or to wear a mask, your self-centered decision places others at risk of contracting a deadly disease. Widespread refusals help perpetuate COVID and increase the likelihood of breakthrough mutations --- variants that could potentially defeat the protections offered by the original vaccines.

While a vaccination is certainly more intrusive than either a seatbelt or a mask, it is less intrusive than being drafted and sent off to fight a war. Yet, the U.S. Supreme Court, in 1918, rejected a claim that the draft violated the 13th Amendment ban on involuntary servitude. "Without the power to compel citizens to bear arms in defense of the nation," the Court reasoned, "society could not be maintained."

It could easily be asserted that the U.S. government must wage a war against the SARS-CoV-2 virus. That virus and its variants present a more deadly threat to Americans than the enemies this country faced during World War II. Indeed, as of August 1, the number of American COVID fatalities (612,919) exceeded the total number of Americans killed during WWI, WWII and Vietnam, even when one adds the in-service but not-in-theater Vietnam deaths, as did The Washington Post fact-checkers last February.

The one problem area is that these legal cases dealt with the ability of Congress and State legislatures to pass laws to protect public health and safety. It is unclear whether a Court would uphold an Executive Order --- either by a Governor or a President --- to that affect. Absent a willingness on the part of all 50 U.S. Senate Democrats to create a carve-out to the filibuster for public health and safety legislation, it is doubtful that Congress would mandate COVID vaccinations on the federal level.

Patent enforcement waivers

A recent, in-depth Oxfam report, entitled The Great Vaccine Robbery [PDF] reveals that, despite the massive public funds used to develop COVID-19 vaccines, privately-owned U.S. pharmaceutical companies have been allowed to privatize and monopolize vaccine production "at the direct expense of protecting more lives and more countries."

Because the worldwide menace of COVID has, in fact, become a pandemic, the threat of further viral variations and mutations cannot be eliminated absent what the World Health Organization (WHO) refers to as "vaccine equity". Where the WHO estimates a need to vaccinate at least 70% of the world's population by the first half of 2022, the WHO, in late May, identified "nearly a dozen countries" that have had no access to any vaccines whatsoever.

The abundant supply in wealthier countries, per the aforementioned Oxfam report, has already provided private pharmaceutical companies with obscene profits. "Pfizer/BioNTech and Moderna," the report noted, "are charging governments as much as $41 billion above the estimated cost of production". Indeed, they added, "governments worldwide are paying between 4 and 24 times more than they could be for COVID-19 vaccines."

Yet, poorer countries have gone without access to COVID vaccines because privately held pharmaceutical companies retain intellectual property protections under the World Trade Organization's (WTO's) TRIPS agreement.

Last October, the governments of India and South Africa, joined by 62 WTO member nations, reasonably requested a temporary TRIPS waiver. Over the next 9 months, during which that waiver was not secured, 3 million people died from the preventable disease.

Despite his support of a TRIPS waiver, some progressives have criticized President Biden because he failed to secure German Chancellor Angela Merkel's support for such a waiver. That criticism overlooks the fact that a waiver wouldn't have been secured even if Germany and the U.S. agreed. Under the terms of this international trade pact, any "TRIPS waiver would require the consensus of all 164 WTO member countries."

This absurdity underscores the degree to which national sovereignty, in terms of the ability of nation-states to protect the health and lives of their respective citizens, has been compromised by so-called "free trade" agreements. Long term, this --- along with predatory pricing --- points to a need to renegotiate our trade agreements and perhaps even consider a nationalization of the pharmaceutical industry. In the short term, there appears to be no reason why the U.S. government, in conjunction with its purchase of COVID vaccines, cannot include a demand that U.S.-based pharmaceutical companies contractually waive their right to enforce COVID vaccine patent rights before WTO international tribunals.

UPDATE 8/12/21: Last May, Indiana University mandated that, with the exception of those who qualify for medical or religious reasons, all students, faculty and staff had to receive COVID vaccinations. Eight students filed a legal action, Klaassen v. Trustees of Indiana University, seeking to enjoin enforcement of the University's vaccine mandate. They asserted that the vaccine mandate was unconstitutional.

The U.S. Supreme Court, today, by way of an order signed by Justice Amy Coney Barrett, summarily rejected the students' request to block the mandate.

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CORRECTION 8/4/2021: This articles has been updated to reflect that Kay Ivey is the Republican Governor of Alabama, not Mississippi as we had originally reported. Our apologies for the error.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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