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June 15, 2023 Feature

Misinformation Overload and the New Legal Landscape Surrounding COVID-19 Vaccines

Jennifer L. Piatt and Erica N. White

Historical medical achievements leading to global eradication and control of certain infectious diseases. Successful pandemic containment mechanisms saving tens of millions of lives. “With the exception of safe water, no other modality, not even antibiotics, has had such a major effect on mortality reduction and population growth.” These are how public health experts describe vaccines. Yet, in the current U.S. political and legal climate, vaccines are neither universally utilized nor revered. In shining a spotlight on our nation’s ill-equipped and inequitable healthcare system, the COVID-19 pandemic provided a broad stage for the widespread circulation of anti-vaccine misinformation. A highly charged political climate fanning the flames has led to numerous state governors and legislators taking up arms against vaccine mandates and so-called vaccine passports. Evolving data surrounding COVID-19 vaccines in early 2023 has only stirred controversy regarding vaccine-related requirements.

The result? Numerous anti-vaccine laws have been enacted in several states and various legal challenges to vaccines have invoked a hodgepodge of legal arguments. The U.S. Supreme Court got involved in early 2022. While the national emergency declaration for COVID-19 ended April 10, 2023, and the public health emergency ended on May 11, new legal issues regarding vaccines are continuing to emerge in major news outlets, state legislative bills, and courthouses. It almost feels as though we have entered a new anti-science era in which policymakers are not only able, but encouraged, to take actions that can risk the public’s health under the guise of preserving “individual decision-making.”

Shedding light on the circumstances surrounding this new, potent wave of anti-vaccine rhetoric and resulting changes in the U.S. legal framework, we examine politicization and misinformation surrounding COVID-19 vaccines and describe several complex emerging legal issues surrounding them. While legal interventions may stem the tide of misinformation-based attacks, First Amendment–based barriers illustrate that addressing public health’s politicization is necessary to attempt to prevent co-opting of the legal system for anti-science purposes. Ultimately, shifting the legal landscape back towards protecting vaccinations—and the public’s health—will require confronting misinformation, prioritizing education, and rebuilding public trust in public health.

Politicization, Misinformation, and Shifting Attitudes

Infectious diseases are among the oldest and deadliest public health threats. From the bubonic plague to the “Spanish flu” and now to COVID-19, serious disease outbreaks have shaped the course of human history. So have vaccines. The invention and widespread use of highly effective vaccines providing community or “herd” immunity against infectious diseases transformed guaranteed death sentences into largely preventable and less severe occurrences globally. The first vaccine, developed in the late 1700s against smallpox, eventually led to the worldwide eradication of smallpox in 1979. In 1925, Balto and a team of sled dogs raced to deliver diphtheria serum to sickened children in remote Nome, Alaska, saving lives amid a raging epidemic. This event inspired books, movies, and statues honoring Balto and his team. Today, rapid creation of targeted messenger RNA (mRNA) vaccines following unprecedented research and development provided the key turning point in the COVID-19 pandemic, and perhaps the next pandemic, when it inevitably arrives.

Yet despite the good vaccines have done for centuries, they have long been controversial. One of the most famous U.S. Supreme Court cases concerning public health, Jacobson v. Massachusetts, involved a pastor who refused to be vaccinated against smallpox amid a community outbreak or accept a $5 fine. Reverend Jacobson was not unlike today’s “anti-vaxxers” or people opposed to vaccines. Over a hundred years later, continued mistrust of routine vaccinations has threatened group immunity, leading to outbreaks of preventable diseases including measles, whooping cough, and meningitis.

Vaccine mistrust surfaces for a variety of reasons. Following publication of an infamous Lancet study in 1998, some parents refuse MMR (measles, mumps, rubella) vaccines for their children due to fears of autism diagnoses, despite the Lancet formally retracting the study in 2010. Aggressive lobbying, direct-to-consumer advertising, high costs, and discomfort with sexual transmission resulted in a reduced number of states mandating HPV (human papillomavirus) vaccines for school-aged girls, from 24 states in 2007 to only Virginia and Washington, D.C., in 2010. Still, nothing compares to today’s political and informational firestorm surrounding COVID-19 vaccines.

Before COVID-19, anti-vaccine activism in the United States was more of a fringe subculture (although globally vaccine skepticism was more widespread). Anti-vaxxers advocated for alternative childhood vaccination schedules or completely abstained from inoculation, leading to measles outbreaks in select New York neighborhoods in 2019 and Disneyland in 2014–15. During the COVID-19 lockdowns, as more people were sequestered at home and social media platforms such as TikTok boomed, anti-vaccine messaging exploded online, particularly following emergence of the first COVID-19 vaccines in late 2020. “Mechanisms for virality” to amplify posts enabled quick retweets and rapidly multiplying views. In 2022, the World Health Organization called the rapid spread of misinformation online an “infodemic.”

Some of the emerging messaging surrounding COVID-19 vaccines was deliberately deceitful, including posts from those individuals who were profiting from “alternative” COVID-19 treatments. Other messaging was mean-spirited. In January 2023, Buffalo Bills football player Damar Hamlin collapsed on the field in an apparent cardiac arrest. Immediately, the internet was abuzz with allegations linking the fall to COVID-19 vaccines, despite there being no proof vaccines had contributed to the cardiac event. Still, anti-vaccine misinformation surrounding the event was repeated by ultraconservative pundits, including Fox News’ Tucker Carlson, who called medical experts “witch doctors” and doubled down on anti-vaccine rhetoric even after the true cause of Hamlin’s injury was known. Carlson’s language echoes that of some politicians; even pre-COVID, in 2019, Texas state representative Jonathan Stickland accused an infectious disease researcher of “sorcery” for defending vaccines.

Much of the misinformation surrounding COVID-19 vaccines involves efficacy and side-effect severity. Twenty-five percent of unvaccinated Americans worry about possible blood clots, flu-like symptoms, or other side effects. While flu-like symptoms may occur with some regularity, blood clots are incredibly rare, and other side effects are grossly misreported. In July 2021, National Public Radio surveys evaluating the common falsehood that the COVID-19 vaccine affected fertility identified a likely source in a nugget of truth: Many women reported heavier periods following inoculation, and these reports were amplified by social media personalities and conflated with related myths. National Institutes of Health data from late 2022 indicated that the COVID-19 vaccine did, in fact, lengthen menstrual cycles by less than one day, resolving soon after vaccination. Yet fertility myths persist.

Without doubt, falsities regarding legal procedures and requirements surrounding vaccination are also a key component in hesitancy. In October 2022, the U.S. Centers for Disease Control and Prevention (CDC) added the COVID-19 vaccine to its list of recommended preventive services, enabling Americans with health insurance to receive the vaccine at no cost under Affordable Care Act requirements. Once again, Tucker Carlson latched on and erroneously indicated that CDC was requiring the vaccine for school entry, despite CDC not directly setting school entry vaccine requirements. Its Advisory Committee on Immunization Practices recommends certain vaccines for specific age groups, which many states opt to incorporate into state-specific school vaccine requirements.

In truth, rapid development and distribution of free COVID-19 vaccinations and boosters led to businesses reopening and returns to “normalcy.” Yet even as infections decreased with rising vaccination rates, millions of Americans became locked into long-term disbeliefs regarding vaccines’ safety and effectiveness due to misinformation. Changing their attitudes will be difficult. The profile of the typical vaccine-averse individual has shifted in focus from one predominantly concerned with health impacts and safety to one pursuing freedom from government interference. Anti-vaccine laws in some states have shifted as well, as increasing numbers of politically motivated bills aim to eliminate vaccine requirements altogether.

Altered Approaches and Public Health Consequences

As COVID-19 misinformation continues to circulate, resulting state-level efforts to restrict public health authorities have been unparalleled. Legislators and governors in most states proposed legislation or executive orders aiming to limit vaccine mandates, including those instituted by nongovernment actors, like private businesses. These efforts to legally enshrine anti-vaccine sentiment converted the “infodemic” into an infection of the U.S. legal system in key states as individualistic ideologies and bad science took center stage.

Some of the most egregious bad “science” relating to COVID-19 vaccines stems from misunderstandings of mRNA technology. According to CDC, mRNA vaccines work by “teaching” cells how to make copies of the “spike protein” found on the surface of the COVID-19 virus. Persons infected after inoculation can then “recognize” the spike protein and fight it off. Vaccines using mRNA technology are not new; the first clinical trials using mRNA technologies began in 2001, and Moderna and BioNTech have since begun researching the use of mRNA technologies for cancer treatment.

Still, scientific technologies that seem novel due to lack of widespread use are always ripe for anti-science discourse. Only an estimated 28% of American adults are considered “civic scientifically literate,” demonstrating the importance of education and targeted messaging in science-related arenas. Many Americans initially falsely believed that mRNA technology altered their DNA or that it injected nano-technologies into the human body. A March 2023 Missouri bill seemingly built on this rhetoric, banning microchip requirements (“mechanical or electronic device[s]” placed under the skin) or “forced mutations” (“any treatment or procedures intended or designed to edit or alter human [DNA] or the human genome”). More recently, in February 2023, Idaho lawmakers introduced a bill criminalizing the administration of mRNA vaccines, expanding beyond COVID-19 to target the technology directly. These are just a few key examples of a larger movement targeting vaccination on the basis of misinformation and partisan politics.

Other anti-vaccine actions have been motivated by apparent ignorance of the general legal environment surrounding vaccines. Some states banned governments from requiring vaccines to access public services, though no jurisdiction ever imposed such a requirement. Some bills have been aimed towards banning non-existent COVID-19 school vaccination requirements. These actions have become prominent talking points among anti-vaxxers, and the spread of misinformation seems to be working. As of March 2023, the number of Americans vaccinated against COVID-19 has remained stable for many months, with only 69% “fully vaccinated” with recommended boosters, despite widespread availability. A November 2021 survey found that 64% of unvaccinated adults believe, or are unsure of, common false statements surrounding the COVID-19 pandemic and vaccines. Those who are vaccinated are also vulnerable to misinformation; negative attitudes regarding COVID-19 vaccines have resulted in an increase in the number and severity of vaccine side effects reported. Three years into the pandemic, and over two years after the first COVID-19 vaccine approval, mRNA vaccines are still misunderstood and face heavy opposition.

Emerging Legal Issues

All this swirling misinformation and politicization has placed vaccine supporters firmly on the defensive in an evolving legal battlefield. Anti-vaccine legal arguments have ranged from allegations vaccines authorized via emergency measures could not lawfully be mandated and anti-vaxxers were not sufficiently accommodated, to arguments that mandates violate constitutional due process, bodily autonomy, free religious exercise, and even free speech protections. Countless plaintiffs relentlessly filed lawsuits to test these and other theories in a variety of settings over the course of the pandemic.

Perhaps the most high-profile COVID-19 vaccine cases were those that landed at the Supreme Court in January 2022, challenging Centers for Medicare and Medicaid Services (CMS) and Occupational Safety and Health Administration (OSHA) vaccine policies. CMS’s case involved requirements for federally funded medical providers to get vaccinated, while the OSHA case involved an emergency rule requiring large businesses to institute employee “vaccine-or-test” requirements. While the Supreme Court left in place CMS’s mandate, it seriously questioned OSHA’s rule, blocking it while litigation continued. OSHA later withdrew the rule, understanding from the Court’s initial assessment that the rule would ultimately not withstand scrutiny.

Even during oral arguments before the Supreme Court, misinformation crept in. Participants, including some of the justices, framed OSHA’s rule as a vaccine mandate, ignoring the rule’s express testing alternative. Justice Neil Gorsuch expressed that OSHA “has not traditionally mandated . . . vaccines for other hazards” like the flu. Chief Justice John Roberts questioned whether the federal government had ever “mandated vaccine coverage” before. And Justice Samuel Alito argued that employees might want to weigh the risks of having to get the vaccine themselves rather than relying on OSHA’s calculus, wondering whether OSHA had ever imposed requirements placing “some extra risk, some different risk, on the employee.” Justice Sonia Sotomayor repeatedly attempted to correct this framing, clarifying the rule was not a vaccine mandate but a requirement that large businesses ensure vaccination or testing of employees. Her attempts fell on deaf ears.

Ultimately, the Court partially framed its decision against OSHA on (1) OSHA’s allegedly “unprecedented” action relating to vaccines and (2) limitations imposed on federal agencies by the major questions doctrine, which poses that Congress must clearly authorize agency actions of “vast economic and political significance.” Serious problems are posed by the Court’s conclusions, including restraining innovation and abilities to respond to new or changing circumstances (such as those emerging during the worst infectious disease threat the United States has ever experienced). As for the major questions doctrine, when exactly federal agencies setting national standards would not be acting in “vastly” economically or politically significant ways seems, at best, indeterminate. Under this reasoning the Court holds a virtual veto power over executive action it finds unjustifiable. But the doctrine also poses additional problems on the misinformation front. Permissive congressional statutes intentionally allow agency subject matter experts the latitude necessary to implement specific requirements. This practice rightly leaves key decisions in the hands of the experts. The Court’s decision therefore threatens public health not only by cabining and chilling agency action, but running the risk that misinformation in the hands of nonexpert legislators or judges may eviscerate scientifically sound policy decisions.

Despite this highly visible decision, most COVID-19 vaccine challenges were unsuccessful in lower courts from March 1, 2020, through July 1, 2022. The notable exception, according to Professor Wendy Parmet and Researcher Faith Khalik, was in religious liberty cases, where plaintiffs at least partially won “21 of 81 free exercise vaccination decisions” during this period. These legal challenges involved discrimination claims challenging vaccine mandates that (1) disallow religious exemptions but permit medical ones and (2) deny religious exemptions to specific plaintiffs. The relative success of these religious liberty claims is puzzling, considering a very low number of religions formally oppose vaccination. In some cases, religious exemptions may be a cover for other, nonreligious objections, but it can be difficult to legally separate sincere religious beliefs from personal ones. Religious liberty consequently presents a concerning pathway towards rescission of vaccine mandates, given potential for success in lower courts and considering the Supreme Court’s elevation of religious liberties over public health measures via a series of 2020 and 2021 pandemic cases. The Court has had a couple of opportunities to take on broader religious liberty–based challenges to vaccine mandates but has surprisingly sidestepped the issue, at least for now.

Another threat to vaccination law lies in objections to Jacobson v. Massachusetts. Throughout the pandemic, courts assessing challenges to public health measures relied on Jacobson to uphold states’ emergency response efforts, including vaccine mandates properly couched with medical exemptions. Yet, before the Third Circuit Court of Appeals on March 21, 2023, a challenger argued that Jacobson should not apply to COVID-19 vaccines because COVID-19 boosters are “‘new technologies’ with yet-unknown consequences.” Although the Third Circuit did not seem to take stock in the claim, and the Supreme Court may not either, cases like this one demonstrate a concerning and ongoing trend of challengers using litigation to forward anti-science views.

Anti-vaccine litigation has also expanded beyond mandate challenges and religious liberty concerns. Recently, anti-vaccine interests filed a lawsuit invoking antitrust interests under the Sherman Act, alleging that major media sources unlawfully boycotted anti-vaccine information competitors. If successful, this suit could risk exposing far greater quantities of misinformation to broader swaths of the public. While the suit may seem “implausible” today, Professor Dorit Reiss suggests that the challengers may have deliberately filed before an “openly partisan” judge, who may advance the case further than it would otherwise go.

Vaccine-protective interests have also brought their own challenges to counter anti-vaccine tactics. In 2021, Montana’s legislature passed a law banning all private employer vaccine mandates, with exceptions for specific healthcare employers. In December 2022, a federal judge determined that the law was not only preempted by the federal Americans with Disabilities Act and OSHA’s general duty clause, but that it also violated constitutional equal protection guarantees. The law has been permanently blocked, though an appeal in the Ninth Circuit is ongoing.

Finally, direct legal solutions towards limiting misinformation are complicated by the First Amendment. Noting that a surprising amount of misinformation can be attributed to certain medical professionals, whose credentials give them enhanced credibility, California Governor Gavin Newsom signed a bill in 2022 making thespread of misinformation by these licensees “unprofessional conduct.” The bill was halted in January 2023, pending litigation over free speech concerns.

Protecting Vaccination and Public Health

So, legally, where do these emerging issues leave vaccines? Waves of misinformation and politicization have already had significant and concerning impacts, and anti-vaccine activity is not going away anytime soon. As more anti-vaccine policies become law, the ability to reach requisite herd immunity levels lessens. A potential public health consequence is increasing morbidity and mortality in the U.S. population.

The reconstituted Supreme Court is likely to continue issuing decisions with negative public health consequences, binding lower courts to follow. The First Amendment freedom of speech makes misinformation difficult to shut down entirely. Additionally, the major questions doctrine utilized in the Court’s OSHA decision has already been leveraged by the Fifth Circuit to block the Biden administration’s federal contractor COVID-19 vaccine mandate. Other court decisions have utilized major questions reasoning to block additional vaccine requirements and federal regulations aiming to slowCOVID-19’s spread. Continued, aggressive use of this doctrine threatens federal administrative agencies’ abilities to regulate entirely. Its recent percolation into state court opinions may be even more impactful from a vaccine perspective, given core state police powers to set vaccination policy.

Still, there are some bright spots. For starters, the Supreme Court had every opportunity during the pandemic to expressly overturn Jacobson v. Massachusetts. Yet, while the Court certainly backed away from enthusiastic support for Jacobson after Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg, Jacobson is still standing. Despite major denials of federal public health powers, state-based vaccine mandates consequently remain generally constitutional, and most challenges to pandemic vaccine policies were unsuccessful.

Some state legislatures represent more concerning public health battlefields moving forward. Certain states are still waging a political war against vaccines, leaving public health in the lurch. Research demonstrates that risks of illness and subsequent death are higher in unvaccinated populations. Communicable diseases do not respect borders, meaning one state’s vaccination program will be less effective in controlling for outbreaks without other states’ cooperation. Individuals who cannot medically receive vaccinations will not be as well protected in states with anti-vaccine policy agendas. Despite it all, continuing misinformation may ensure that anti-vaccine agendas will remain politically popular.

Ultimately, misinformation has a strong foothold amid the continued politicization of public health. In such an environment, science is distrusted, laws are not simply introduced but enacted contrary to expert recommendations, and lawsuits strategically placed before partisan judges continue to get airtime. Education, communication, and understanding are sorely needed to help rebuild public trust in public health. Building back this trust and strengthening resolve in a community-based, rather than an individualized, approach may be the only way to ensure that vaccine-related legal interventions are respected in the future, and therefore given the chance to be fully effective.

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    Jennifer L. Piatt


    Jennifer L. Piatt, JD is a research scholar at Arizona State University Sandra Day O’Connor College of Law and deputy director of the Network for Public Health Law Western Region Office.

    Erica N. White


    Erica N. White, JD is a research scholar at Arizona State University Sandra Day O’Connor College of Law and a senior attorney at the Network for Public Health Law Western Region Office.