By Evie Blad — May 12, 2021 7 min read
As younger children qualify for COVID-19 vaccines, public health officials are unsure of how many families will opt to have their children inoculated if the shots aren’t required for school attendance.
While some colleges and universities have made COVID-19 vaccines mandatory for their students, experts say it’s unlikely states will issue similar requirements for K-12 students any time soon. That’s true even as federal agencies expanded eligibility for the Pfizer vaccine to children as young as 12 years old this week and states rushed to give them shots.
There’s a host of legal, political, and ethical questions involved in setting a new requirement, especially as COVID-19 vaccines are administered under an emergency-use authorization, which has allowed health providers to administer shots more quickly as the Food and Drug Administration considers more permanent approval.
And some health officials, leery after past debates with anti-vaccine activists, believe providing incentives for voluntary shots may be a more effective way of encouraging broad acceptance.
“The reality is there are a number of push and pull factors here,” said Dorit Rubinstein Reiss, a professor at the University of California Hastings College of Law and a member of the Vaccine Working Group on Ethics and Policy, a group of doctors and researchers from around the country that discusses questions related to COVID-19 vaccines.
“Mandates should never be the only thing you are doing,” she said. “If you are just mandating, you are doing it wrong.”
Why do states mandate vaccines?
State-issued school vaccine mandates have been a key strategy that has helped build collective immunity, and agencies like the Centers for Disease Control and Prevention have credited them with practically eradicating several illnesses, like measles and polio.
School attendance is one of the broadest, most effective conditions officials can tie to vaccines, they say, so such mandates serve to set norms for the broader population, in addition to protecting children from diseases that may spread in school buildings.
Twenty-nine percent of parents responding to a May 6 poll by the Kaiser Family Foundation said they would get their child vaccinated for COVID-19 as soon as it is available to them. Thirty-two percent said they would wait to see how the vaccine is working first, and 15 percent said they would only get their child vaccinated if their school requires it.
But, even as the nation conducts a massive campaign to vaccinate as many people as possible, state officials around the country have expressed little interest in adding COVID-19 to school vaccine mandates, at least not yet.
“You cannot mandate any of these vaccines yet, because they are all emergency-use authorization,” New York Gov. Andrew Cuomo, a Democrat, said Tuesday. “A state cannot mandate a vaccine that is authorized by emergency use. It has to receive a full federal approval first.”
The emergency-use authorization from the FDA requires broad, rigorous studies of the safety and effectiveness of vaccine candidates. In Pfizer’s case, data was pulled from 2,260 12- to 15-year-olds who participated in a clinical trial. The company expects to request emergency authorization for children as young as 2 in September. Pfizer has started the process to receive full approval for use of its vaccine in patients 16 and older, and it expects to follow later with younger age groups.
Where does the law stand on mandates?
While courts have generally upheld states’ authority to require vaccines for school attendance, some policymakers said it would not be possible to require COVID-19 vaccines without full authorization from the FDA.
However, in an opinion piece for STAT, a medical news site, Reiss and other members of the vaccine advisory committee argue that the authorization status may not be a concern. Emergency authorizations generally apply to medicines that target narrow swaths of people, they argue, but COVID-19 vaccines have been approved for the broader population. Like the vaccines, coronavirus tests are also approved on an emergency basis, the writers say, but that hasn’t stopped schools and employers from requiring them.
Still others argue that law permitting emergency-use authorization contains language that assures patients it is their choice to receive qualifying medications.
Courts are considering cases about whether employers can require COVID-19 shots, Reiss said. But states may be reluctant to test the legal waters through school mandates until the issue is more settled.
If colleges require COVID-19 vaccines, why don’t K-12 schools?
Despite those legal questions, hundreds of colleges and universities, including the University of California and California State University systems, have already said students must be vaccinated to learn on their campuses during the 2021-22 academic year. Some have made that requirement conditional on full FDA approval, and some have not.
The issue is particularly pressing for higher education: Older teens and young adults are more likely to grow severely ill from the virus than young children, and efforts to prevent outbreaks through quarantines and testing have been costly and disruptive.
But, unlike K-12 education, college attendance isn’t compulsory, which may make health requirements less politically tricky. And vaccine mandates in higher education are typically set by the institutions themselves. In K-12, such mandates are typically set by state legislatures or health officials acting under legislative authority, Reiss said.
States typically follow recommended childhood vaccine schedules from the CDC in setting their mandates, allowing some exemptions. In recent years, state lawmakers around the country have faced confrontational protesters when they’ve attempted to narrow or eliminate broad, philosophical vaccine exemptions that have led to large numbers of opt outs.
State officials may be reluctant to have similar debates now over the COVID-19 vaccine, Reiss said, and they may want to wait until a vaccine is permanently approved for all age groups so they don’t have to stir up the same public response multiple times.
“In the background is the fact that the anti-vaccine movement has been mobilized in past years for every attempt to tighten mandates,” she said. “If there is a proposed mandate, we are going to see them mobilize nationally again.”
Is any school district mandating the vaccine?
There has been some limited discussion of individual school districts setting vaccine requirements for students, but none have done so.
In January, Los Angeles Unified School District Superintendent Austin Beutner said that, once the vaccine is available to children, students would be required to be vaccinated for in-person learning, saying it was “no different than students being vaccinated for measles and mumps or tested for tuberculosis before they come on campus.”
“That’s the best way we know to keep all on the campus safe,” he said.
The district later changed its position after it was sued by a group of teachers who oppose the vaccine, saying it expects the state to eventually add coronavirus to its required vaccine schedule.
Are mandates the best way to ensure children get vaccinated?
Whether or not they are legally permissible, some medical ethicists question if mandates would be the most effect way to encourage parents to vaccinate their children.
For one thing, children are less likely to contract severe illness from COVID-19 than adults. And some parents who are reluctant to be first in line for shots may not be so resistant if health officials handle their concerns thoughtfully and respectfully.
There’s also the logistical concern of getting millions of children through a two-dose vaccine regimen during the summer months at a time when school officials are already concerned about “losing” students who became disengaged during remote learning. Public health officials are also concerned that students have fallen behind on other routine shots during the pandemic, which could be a barrier to attendance in the fall if not quickly addressed.
Recognizing the need to build trust, President Joe Biden has said his administration will work with school-based health clinics and make vaccines available at pediatricians’ offices, rather than just at impersonal mass clinics. And some school districts have begun offering vaccine clinics for students.
“About 3 million COVID-19 cases have been reported in kids under 17 years of age,” Biden said Wednesday. “And teenagers can spread it to their friends, to their siblings, to their parents, and to their grandparents. Now that vaccine is authorized for ages 12 and up, and I encourage their parents to make sure they get the shot.”
Some states have offered incentives to increase vaccinations among young people. West Virginia Gov. Jim Justice, for example, has offered a $100 savings bond to people 16-35 if they get a COVID-19 shot. In Ohio, Gov. Mike DeWine announced plans Wednesday to award full college scholarships to five randomly selected teens who’ve been vaccinated.
States may eventually add COVID-19 vaccines to their school requirements in future years, but encouragement may be a stronger public health tool this year, Reiss said.
“An attempt to mandate may push [some parents] into the arms of the anti-vaccine movement,” she said.
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