On April 7, 2021, the University of Notre Dame announced it will require all students to be vaccinated against COVID-19 to enroll for the 2021-2022 school year, and on May 20, the university announced a similar requirement for faculty and staff, making the school part of a growing list of colleges across the country mandating the COVID-19 vaccine.
The school will “accommodate documented medical and religious exemptions.” Vaccinated students will be permitted to go without masks in residence halls this summer, although masking policies for the fall have yet to be announced.
The law firm Siri and Glimstad sent a letter to University President Rev. John Jenkins arguing that Notre Dame’s mandate is not lawful because the vaccines are not U.S. Food and Drug Administration-approved. They’re only available via Emergency Use Authorization (EUA), which allows the Health and Human Services secretary to authorize in emergencies products that have yet to meet legally established thresholds for approval. Never before has a vaccine been authorized for the entire population under a EUA.
One important condition for EUA products is the basis of legal arguments against university mandates such as those at Notre Dame. The relevant statute requires the HHS secretary to “ensure that individuals to whom the product is administered are informed of the option to accept or refuse administration of the product.” This option to refuse is mentioned again in the FDA fact sheet for Pfizer vaccine providers.
It very likely is lawful for a university to mandate coronavirus vaccination for students and employees. The statute places requirements on the conduct of government officials, not private entities. For this reason, professors from Harvard University and the University of California at Hastings law schools conclude, “There are few to no legal barriers to employers or schools requiring vaccines being distributed under EUAs.”
While mandating that students take an emergency authorized vaccine may be lawful for private colleges and universities, the fact that it is, for the time being, available only under EUA provides good reason not to do so. After all, the language in the statute requiring HHS to make the vaccine optional exists for good reason. While it is appropriate during a public health crisis to take greater risks in pursuing prevention and treatment, risks should not be forced on individuals, especially when the long-term effects of that risk are unknown.
Although Notre Dame is not the government, it should abide by the same principles that guide the legal requirements of public health agencies. After all, the university has stated that its COVID-19 policies are “consistent with national guidelines promulgated by the Centers for Disease Control and Prevention.”
If Notre Dame seeks to follow the recommendations of federal agencies, should it not abide by the decades-long statutory obligations under which those agencies operate? We risk establishing a dangerous precedent if we allow private entities that wield significant power to mandate medical treatments that federal officials must make optional.
Currently, most employers are not mandating workers be vaccinated. California’s university systems will not enforce their mandate until at least one shot has been fully licensed. Pfizer applied for full approval and will likely be licensed in the coming months. If Notre Dame wants to assure students that it is proceeding in an unprecedented situation with appropriate caution, a holistic view of students’ well-being, and respect for their medical privacy, it wouldn’t even consider a COVID-19 vaccine mandate until the product has been approved.
Young Adults Are Not at Risk
The near-universal vaccination of college-aged individuals contemplated by universities is also not necessary for keeping the pandemic under control. COVID-19 is a very age-stratified problem. Older individuals are substantially more likely to suffer serious illness or death. Fortunately, as of June, 86 percent of individuals older than 65 years of age had received at least one shot, a development that will ensure those most at risk are afforded protection.
Moreover, a substantial portion of the population has already developed robust and long-lasting immunity to the coronavirus. By March 2021, 114 million Americans had been infected with COVID-19, so close to 40 percent of the country is naturally immune by now.
Evidence demonstrates that natural immunity works. An English study followed 25,000 hospital workers and found that natural immunity reduced the chance of reinfection by 84 percent and of symptomatic reinfection by 93 percent over the seven-month analysis. As with each of the three vaccines, it is uncertain how long natural immunity will last, but it is likely years.
At Notre Dame, 90 percent of students have been vaccinated, and from May 8 to May 22 the school did not report a single positive COVID-19 test. Population immunity has been more than achieved on campus, and it is absurd to contend that allowing the vaccine to be optional for those who have not yet received it would create an unacceptable level of risk on campus.
Even if fewer students had been vaccinated, the goal of achieving herd immunity would not have been imperiled. A combined 2,600 of the 8,700 undergraduate students were infected in the fall and spring semesters. Safely estimating that another 1,000 were infected over the summer or the two-month winter break, at least 40 percent of the undergraduate student population is naturally immune, substantially supplementing vaccine immunity.
Notre Dame will accept any COVID-19 vaccine authorized by the Centers for Disease Control. The Janssen shot has been demonstrated to be 66 percent effective against moderate to severe COVID-19 at least 28 days after infection, while natural immunity provides more than 90 percent protection against symptomatic illness at least seven months after infection. Curiously, however, only the former would allow a student to return to campus.
What About Conscientious Objections?
The use of abortion-derived cell lines in the testing and development of the COVID vaccines has become an important point of discussion among pro-life individuals, especially Catholics. According to the Congregation for the Doctrine of Faith, “When ethically irreproachable Covid-19 vaccines are not available … it is morally acceptable to receive Covid-19 vaccines that have used cell lines from aborted fetuses in their research and production process.”
Moreover, it is generally morally acceptable to abstain from vaccination, although it is important to consider not only one’s personal health but also one’s role as a potential vesicle for transmission. Finally, Catholics are obliged to speak out against unethical vaccine development and testing practices. It would be highly beneficial for Notre Dame to explain why it believes its current vaccination policy is the most appropriate application of the church’s teaching to the conditions on campus and use its role as an influential institution to champion vaccinations that do not have any connection to abortion.
The coronavirus vaccine cannot be viewed in isolation. It is part of a broader pandemic response that has included the promotion of irrational and harmful policies that have rightly weakened trust in political figures and public health authorities. Consider how the CDC has constantly contradicted its own guidelines on masks, social distancing, and vaccinations. Or how Big Tech is serving as the media arm of Big Pharma, censoring discussion on mitigation and prevention measures while aggressively championing others.
This should greatly concern us and shake our confidence in the information we hear about vaccination, and leave us wondering what we’re not hearing, and why we can not make medical decisions for ourselves. The fight over the vaccine mandate is another example of how not only the state, but private institutions with significant power, such as corporations and universities, can be threats to individual liberty.
