Vaccinating America

ethical questions. Here to walk us through some of them is Michelle Mellow. Professor Mellow teaches at the Stanford Law School and holds a joint appointment at Stanford's School of Medicine. She's an expert on medical liability, public health law, pharmaceuticals and vaccines, and importantly ethics and governance associated with all of those things. Michelle, thank you so much for joining us.

I knew the minute that we hit this stage of the vaccine process where we have vaccines that appear to work and now we have to struggle with the practical and ethical questions and the legal questions around distribution, that I wanted to hear your input. So let's just dive in and I want to start with the priorities that different actors have been setting for who gets vaccines when, and ask you, what do you think that those priorities

should be. So, I actually think that the ethical framework that the National Academy of Sciences and Engineering Medicine Committee

came up with is spot on. They start with a series of both substantive and procedural ethical principles, and the substantive principles are the ones that are most salient for figuring out who's in what priority group, and they are equity or addressing health inequities, assuring maximum benefit, what they call equal concern, which is the idea that every person is of equal moral worth and should be protected from discrimination.

And then there are also a series of these procedural ethical principles that they articulate, which include fairness and transparency and hewing closely to the evidence. So unpacking those a little bit more, you know, what is it. I've talked a little bit about what equal concern means. It doesn't, however, mean that it's not right to make decisions based on a person's societal role, like the instrumental value that they bring to fighting COVID, for example. But beyond that, we

want to protect people from nvidious discrimination. The maximum benefit principle I think they did a very good job of describing as pertaining both to the reduction of serious comorbidity and mortality, so finding people who are especially like they get really bad COVID and also eliminating transmission to the maximum extent possible. Those are both important elements of maximal benefit.

They also refer to the fact that people who are in roles that are essential for societal functioning should be vaccinated because performing their role brings about additional benefits to society. In terms of the mitigating inequities, the committee is interested in the communities that have been especially hard hit by the disease, and then interesting also as their focus on respecting tribal sovereignty as a form of respecting vulnerable groups.

Can I ask a skeptical question, every single principle that you just articulated, drawn from this National Academy of Sciences approach, Every single principle is a good principle, but it's not at all obvious to me how they work together. In fact, some of those principles seem like in practice they would be in contradiction with other principles. I mean, generally, aiming for maximal benefit does mean treating people not as individuals on their own, but seeing them in terms of the

role that their physical bodies will play in transmission. I mean, if someone is especially likely to transmit, we should stop that person from transmitting by vaccinating that person. The idea of moral weight doesn't really come into that. We're thinking of the society as a collective and the greatest good

for the greatest number. But the other principles are to a certain degree very much based in a tradition that says each human being has equal value and equal weight and shouldn't be treated differently from any other person on the basis of some quality that's not directly connected to their moral worth. So do these principles talk at all about how to reconcile the potential conflicts or is this one of those cases where you just list a lot of good moral principles and then the devil is in

the details. Well, it's a really important question, and they don't go into great death. But I think the clear intent is that when they say it's appropriate to let's use the word discriminate, but here it's not in a negative way. It's picking out people for priority. It's appropriate to do it on that basis when the role concerns

the virus. So we're not talking about valuing some lives more than others because they're not criminals, or they're just better citizens, or they pay more taxes where they are engaged in industries like I don't know, tech that we think bring really innovative products to us. That's not what's

going on here. They're talking about people who, by dint of their social roles, are either big transmitters or serving functions, serving professional functions that help us contain the epidemic, or that otherwise help us maintain some symblance of normal civil life by providing food, transportation, essential infrastructure. So I think they've tried to tow the line there by drawing this boundary around what they are willing to consider when evaluating

a person's role. Do teachers come up here, because they seem like a fascinating case to me, because on the one hand, teachers are fulfilling a fundamental social role. Without them, we can't open the schools, at least not in person.

But then again, they're not frontline health responders. So teachers have been one of the most interesting points of discussion in the broader debates about vaccine allocation, because you know, to a large degree, we're talking about relatively young people who are relatively robust and able to withstand this virus, and you know, the emerging evidence suggests that at least

smaller children are not particularly big vectors. So the teachers perceive themselves to be at high risk, but actually might not be as quite a high risk as they worried that they would be early on. Having said that, there's no denying the fact that they are the backbone of the most critical infrastructure outside of maybe the provision of

food and housing. You know, the economy does not run when kids are not as school and so as a result, the Nation Committee and I think most states will put teachers in Phase two, behind healthcare workers and nursing home residents and perhaps a few others, but toward the front of the line, because again they're playing a role in making an essential sector work. You just raised an issue that's also of great interest to me, and that is you mentioned that it's the states that are going to

be making the actual decision. So first we talked about this framework produced by a kind of blue ribbon panel of the quasi governmental but not really governmental, National Academy of Sciences, so it's not technically part of the government. The governments that will be making the decisions about allocation of vaccines are state governments. Why isn't this something that

should have been decided by the federal government. Well, I think really the only way one could answer that is just by saying, it's always been the states that have run immunization programs. It's just kind of always been that way.

That there are are federal bodies, most prominently the Advisory Committee on Immunization and Practices that you might have heard referred to as ASIP, that make recommendations, highly informed, expert credible recommendations about who to vaccinate, how to vaccinate them, when to vaccinate them. And then states pick up the ball and they do it, and they can tweak those

recommendations if they want to, but it's their game. If you were to start over here and design yeah, but let's make you the czar and design it not for this time, but for the next time. You know. I think that there are critical logistical differences among the states that cause it to make sense to have them in charge of implementation. But I don't appreciate a significant reason

for the prioritization to be different across states. If it's evidence based and it reflects very careful deliberation about important values that are shared, it's not clear to me why it should be tweaked at the state level. That leads

me to a very practical question. I mean, what I've been sort of picturing is, if you're a hospital worker or a frontline worker, you'll get the vaccine through your hospital, or if you're a policeman or a fireman or a firefighter, or you'll get it, you know, at your firehouse or

you know, in the police department and so forth. But I've been picturing for the vast majority of the population that doesn't fit into one of those categories lining up in big numbers outside of some large facility, sort of the way that testing is sort of happening in some

places now. Is that wrong? The allocation frameworks mostly are putting healthcare workers, nursing home residents, and a few others at the front of the line phase one A or one B, and then we get down to people with significant comorbidities, and then we get down to a phase two, where we're dealing with other important people for infrastructure and

people who have milder comorbidities. And if that's how we get to a phase three where there's wide availability the vaccine that it starts to penetrate the general population and eventually reach younger adults and children. And at that stage, yeah, I think we're talking about mass vaccination clinics. But in the early stages, when we're trying to identify people who are eligible for vaccination under these allocation frameworks, it has

to work through organizations that already have that information. We're not going to have a corner Kiosk vaccinating people asking them to show proof of diabetes. And it's not because we just don't have enough vaccine yet to reach the larger numbers of people. I mean, presumably the moment there are enough doses to start lining people up. We want

to do that. We want to do that, but you have to understand the logistical hurdles involved in getting this vaccine out and administering it, particularly for the fiser vaccine that has to be stored, as you know, at this extremely cold temperature, and if your facility doesn't have one of those freezers, you're out now. With MADERNA coming online, it'll be a little easier. But that's just one example of the kind of logistical challenges in scaling this program up.

So it is going to take some time. Even if all of these doses were warehouse right now, not all states would be ready to give them to all people. Do you have I realized that nobody knows a definitive answer to this, and I don't mean to put you on the spot, but do you have an instinctive answer as to how long this is going to take in

the different phases? I have heard people say with some confidence that at least they speak with confidence that by next end of next August beginning of next September, when the twenty one twenty two school year begins, people should overwhelmingly have been vaccinated. But do you think that is actually unrealistically optimistic? I mean, that's consistent with what I'm hearing. I don't have any inside information about this. I think

that's realistic, probably for adults. Kids are the big question mark at this point, because, as I'm sure you know, you have to have a separate set of clinical trials to demonstrate the safety and effectiveness of the vaccine for children Right now, I think no trial has gone below age sixteen, so those trials are just getting underway. And as you probably remember, there is a debate about whether to end the adult trials early. There will be similar debates for these trials as to how long to run

them before you get the initial approval for children. So there's just a lot more uncertainty about when approval will come through. You know, once it does come through, I would expect things to happen relatively quickly because we will have experience at that point with supply chain and with setting things up in clinics, and we will have providers enrolled in the program and so forth. But it could

take some time. And then, of course there's going to be the inevitable resistance when we talk about vaccinating children. That brings us to the resistance question, which I really want to explore with you. So let's start by just asking whether you think there are justifiable reasons that individuals could use to say I don't want to be vaccinated

or I don't want my kids to be vaccinated. What distinguishes this vaccine from other vaccines that we choir for kids is that it's new and not only is it new, but it is for some of the makers based on a new kind of approach to making vaccines, this mRNA approach. So I think it's not unreasonable that people are voicing concerns or having questions about safety. It's very unusual, for example, for US to require children to accept a vaccine that

is novel on the market. Obviously take a very extraordinary set of circumstances. The other thing, of course, that makes these fears not unreasonable is the process through which the vaccines have been approved. You know, I think two months ago I would have said it's very reasonable for people

to have concerns about that. Since then, I've personally been reassured by the process that has emerged from FDA, the director asserting his independence, the transparency around the basis for approval that have certainly not heard anyone who has independently reviewed those data packages voicing concerns about well, were they careful enough or was this the right standard? Their decision was also made a lot easier by the fact that

these were not close cases in terms of efficacy. You know, they had set this initial bar it has to be fifty percent or more effective, and these things just absolutely vaulted over that bar. So I think there's a lot to feel good about now relative to where we were a couple of months ago, and my own personal apprehensions about this I think have been relieved by what I've

seen over those months. Having said that, anybody who's hesitant about regular vaccines is definitely gonna be hesitant about this one because it's new. What I think we have going for us again is that by the time we get to kids, there will be millions and millions and millions of doses having been delivered to adults, and we will know a lot. So even though it will be new in terms of months or years, in terms of doses delivered, it might look a lot more like the knowledge base

that we have about older vaccines. We'll be right back, Michelle. You're a highly rational, logical thinking person, and your description of what count as reasons to be concerned we're all derived from logic and reason there but I presume that you share my view. Maybe I shouldn't that some of the reasons that people are skeptical of vaccines generally may be grounded in formal logical reason, but others are grounded

in other features. You know, whether that's religious faith, which sometimes by its own self description, is grounded in something other than logic or reason, not for everybody but for some, or in paranoia or structural distrust of science or of the government. So what about people who say, you know, I don't like vaccines in general, forget about for my kids, but for me, and I don't want to be vaccinated.

Here how tolerant in your view? Should the government be of the kind of a response, And then from government will move on to private businesses and so forth. Yeah, I mean, look, I'm very familiar with the range of different concerns. I get lots of mail from folks in the anti vACC community expressing their hopes and dreams for my family and my own health and safety, and so I'm aware all of them very positive, a certain very sweet.

As a recipient of occasional hate mail myself, I'm sure that the loving spirit that pervades all hate mail is present in yours too. So I know that people who are hesitant or resistant of vaccines really run the gamut in terms of how well informed their beliefs are, what their beliefs are, why they have these concerns. So the question is, what do we do about it. I guess my own feeling is that one thing we have going for us here is that we don't need ninety percent vaccination.

We don't need ninety five percent. The best estimates are somewhere in the sixty to eighty percent range, probably seventy to eighty percent coverage in order to really kill this thing because the vaccine is so effective. I mean, we're actually getting lucky there. If theaccine we're less effective, we

would need more people to take it. But even more critical than that is what we call the ar not, the reproductive number for this virus, which you know, as you probably know, is around one somewhere right now in most parts of the country. In California here, I think it's at one point two right now, which is the worst it's been in a while. Compare that to measles, where we've got an ar not of twelve to fifteen. That means for every person with measles, they're going to

infect on average, twelve to fifteen additional people. And because of that, we have to have close to ninety five percent vaccine coverage in order to kill measles in the population. So what this all means is we can let a few go, we can let more than a few go, And in fact, I think we're going to have to because there's going to be enough vaccine to get to that place of ninety plus percent coverage for quite a

long time. So what's been interesting to me and having conversations about this topic is how much we pivot back and forth from talking about who get to get it, who gets to be in the line to get it too, who has to get it? We're having like these both of these conversations at the same time, and the reality is that's not going to take place at the same time.

There's going to be a long time where the question is only who gets to get it, and way down the line where everybody who would like to get it has gotten it, then we can talk about whether there's a need to do anything about the remaining whatever it is ten twenty percent, thirty percent, forty percent, we'll see.

But at that point we'll know a lot more about the effect of population vaccination on the spread of this virus, and my expectation is we won't have to do a lot of chasing people that we will get to where we need to be with voluntary vaccination as long as we do a decent job on two things. One is bringing the vaccine to people where they are at zero cost, with zero logistical barriers, and the second is learning how to talk to people about this vaccine in a way

that resonates with them. Do you think there might actually be an interesting cultural effect of this sequencing that you're describing, where if a lot of people really really want the vaccine and are trying to get it, that might actually create a norm that the vaccine is desirable and reduce

some of the objections. Because the way many people say experience vaccines is you know, they're saying their kids to school, or their kids have just been born, or at the relevant check up age, and then the government or or the doctors speaking on behalf the government says it's time for the vaccine. So people see it as a coercive structure. And what's more, because those vaccine programs are on the whole relatively successful, people don't really see the diseases that

they would be getting, you know, if they weren't vaccinated. Here, we've all seen the effects of COVID. We've seen most of us in the United States now, no people who've gotten sick and in many cases we know people who have unfortunately died, So there's a kind of you know, maybe if everyone wants one, it will reduce the likelihood that people will be skeptical of taking it. I mean, they're probably a certain people in the population who think

in those terms. I think what will be more influential is just the experience of seeing with your own eyes friends and family getting vaccinated, being fine, shedding tears of relief, and being able to resume their lives in ways that you, as an unvaccinated person can't or shouldn't. So what is scary about this vaccine, as I mentioned to a lot of people, is that it is new, it's unknown, and quite understandably, they don't want to be in line first

for something that they have concerns about. But one hundred million doses later, I think people will start to feel differently. It's going to take special outreach to certain populations to be sure, including racial and minority communities who need to

hear this from particular kinds of messengers. And then also this time around people on the right who you know, quite curiously, given the President's investment in vaccine development, share the vaccine skepticism of many in the vaccine resistance community, which have traditionally been more left leaning women. So there's this bizarre concentration or constellation of people who have concerns about the vaccine that we're going to have to figure out how to reach. But you know, there will be

people that it will be pretty tough for. My stepmom is a retired corrections officer. She lives in rural Iowa, and she's you know, elderly and at some risk for serious cummorbidities. And when I talk to her about the vaccine, she says, hell, no, I'm not getting no vaccine full stop. There's not a lot to work with there in terms of you know, we talked about with rational reasons. There's

there's just not a lot there other than distrust. And you know, we're going to have to figure out how to turn some of the messaging around to reach out to people who see vaccination as part of a broader set of intrusive measures perpetrated on the public by left leaning public health officials and governors. Can you imagine a scenario where we actually aren't able to vaccinate enough people to reach her community because of widespread skepticism. I mean

that would be massive crisis. I mean, here we are, people like us are sitting around in universities, and the moment that the vaccines were reported as working, we all breathed an enormous sigh of relief. Right, I mean science worked. You know what a relief. Life will return to normal. What a relief. And I don't think I've heard serious discussion in the last few weeks, let's say, since the good numbers came in, of oh, what if we just cannot convince a sufficient number of people to take it,

to get the R not down below one. I mean, I look that. I think those discussions are happening. There's still so much interest. I'm hearing and talking about mandates and you can employers required and can schools require it? This is not, to be clear, something that state officials are talking about, or even many employers. There's very little appetite for that among the employers that I know of,

but reporters want to talk about it. People are curious about that, And my answer is always, I just don't think we need to go there right now. I think we have massive challenge over the next six months in getting this to the people who want to get it, and at that point, when we've done that, I think it will be less of a crisis atmosphere. We will know a lot more about the safety profile of the vaccine. People will know more people who've gotten the vaccine and

feel a little bit more personally comfortable with it. And so while it's possible that at that time we might have to revisit this conversation about can we make people get it, I don't think it does the effort any good to go there now. We don't need to do it, and it's just going to foment the concerns that are causing a problem. I hear the pragmatics behind what you're saying.

If you and I are you with other journalists have conversations about the ethics of coercion by the government or by private employers, as you say, that will just rile up the opponents. So I get it. What I wonder, though, is whether it might not be a mistake not to

start talking about it now for the following reason. I take it that one of the big differences between eighty or ninety percent of the population getting a vaccine and fifty or sixty percent getting a vaccine, even a very effective vaccine is whether COVID nineteen is eliminated altogether, or whether it becomes a recurring but relatively low likelihood disease that's out there. It's still circulating and flares up every so often and kills of you know, a handful of

people here there or in the other place. And that that does seem to be a huge difference. And I wonder if maybe we would do ourselves a disservice by not laying out the case now for actually eliminating the disease the way that smallpox was, at least in principle eliminated. You know, it's not that it's not worth thinking about,

and I think people have thought about it. I've written about it, you know, I've written a list of trigger criteria that I think would have to be satisfied in order for us to be able to justify a mandate for adults. And only you know certain adults. What kinds of criteria are in your trigger list, Christia? Number one is you tried the voluntary thing and it didn't work right.

And not only did you try it, you set up a vaccination program that has a high likelihood of success, meaning that you have the vaccine is free, and it is brought to people where they can access it physically and logistically, and there is a compensation program in place for healthcare workers who are injured by the vaccine, and you know, and others who are as a practical matter

required to have it who are injured. And then beyond that, you know, there's an assessment that that program, having run for a limited period of time, has not produced the necessary levels of population immunity. And there are certain other criterion places as well, like transparent communication with the public, sufficient supply of vaccine, and so forth. I think it'll be really interesting to see where Donald Trump himself comes

down on this. So far, because the vaccine was developed while he was president, he seems eager to take credit for it. Just recently. There was a big public to do when the vice president was vaccinated, and so if the president, when he's no longer president, continues that narrative, that might be a plus from the standpoint of convincing

people who follow him to be vaccinated. There is of course, always some danger with Donald Trump that he'll flip and say, you know, the vaccine was great when I was president, but now that I'm not president. There's reasons to be skeptical about how it's being implemented, and therefore my followers shouldn't take it. I mean, I pray that he doesn't do that, but you know, you can never say never with Donald Trump. Do you have some sense of how

the politics that are going to play out? I mean, you mentioned that there is now a meaningful component of right wing anti vaxxers to go alongside with left wing anti vaxers. Yeah, I do think it would be helpful. They have more key opinion leaders in the Republican Party, including the President, talking not only about the vaccine, but about vaccination. And to me, the President's actually being curiously

muted on this point. Given the magnitude of the achievement of his Operation Warp Speed, you'd think he'd want to take credit for getting the vaccine into people, not just to get it through the FDA. Well, that's what I'm

worried about. I mean, I'm worried that, as is always the case the Trump he's keeping his options open, and that if he thinks that his base is going to be anti vax then he doesn't want to be too connected to the vaccine, and that's why he sent out Mike Pence and didn't have the picture of himself being vaccinated apart from the fact that he's already been infected.

So I think what's more, much more helpful is, for example, what Mitch McConnell said recently about vaccination, which is, you know, first of all going to do it, Secondly you should do it too, and third you know, we all kind of owe this to one another. And it's not a difficult message for those on the right to say to people, Look, you don't like the economy being shut down, you don't like being told to stay home. There's a fix, now,

do it. I want to close with that question of communal responsibility and what we owe to one another with respect to a vaccine, because we have a tendency to think about issues of government coercion solely in terms of the individual's right to resist a government mandate, and to forget that when it comes to vaccines, the mandate isn't just that the government wants you to be healthy, but that the government doesn't want you to infect others, and

that the presence of disease in a population has generally harmful effects. Because even a vaccine that's ninety five percent efficacious. That means that you know, one in twenty people who have the vaccine could still potentially be infected under the right set of circumstances. So when you think about the ethics of vaccination, do you start with the collective or do you start with the individual? I do start with

the collective, because that is the purpose of vaccinations. That it is to produce true heard immunity, not the kind where we let everybody get infected and hope for the best, but the kind where your body is trained to become immune to the virus. That's what the purpose of vaccines is. And and no vaccination or you know, outside extraordinarily high risk context, is ever an individually rational decision. You know,

all vaccines have risks of some side effects. For most diseases, we've more or less wiped them out as long as everybody stays vaccinated. So for any one of us, it makes more sense not to get vaccinated than to get vaccinated from a risk benefit standpoint. But we do it because we know, like any collective action problem, if everybody acted that way, we'd all be worse off because the disease would search And we know that it happens over

and over again. When we have dips in coverage for diseases like measles, mumps, and pertusses, we see outbreaks every year. So that's the way we have to think about it, is that every individual is doing their part to maintain this collective good. That we all benefit enormously from the collective good, albeit in ways that, as you said, are usually invisible. Now, where does individual liberty come into this.

The courts, as you know, have been very clear that the reasons that people can opt out of mandated vaccinations are pretty narrow. There's no question that a valid medical condraindication is a valid reason to opt out. Religious bases for opting out are tougher. The Supreme Court has never held that states a acquired to offer that many states choose to do it, but increasingly they're choosing to restrict those.

And then there are these other sort of philosophical reasons why people object to vaccines, which is maybe the most trenchant avenue to focus on in this context, because although we've heard a lot about certain religious communities, and during COVID nineteen, it's actually pretty hard to find a religious

faith then rejects vaccines outright. They tend to when you sort of scratch below the surface, most of those religious beliefs are more a set of philosophical beliefs about the body and about the spirit and the body healing itself. It doesn't tend to be connected to what the courts

think about as religions. So the liberties that are being implicated here are mostly of this last variety here, of this idea that simply I just don't believe in vaccines or I just don't want it, and for a disease like COVID or any of the other even more serious diseases for which we require vaccinations, it's just really hard to square that as a weighty interest against what's at stake here. On the whole, I think the story you're telling is a relatively optimistic one, and I'm grateful for that.

This might be the first genuinely optimistic COVID related episode of a deep background that we've had in the last nine or ten months. But at the same time, you gave us a very realistic account of what the ongoing challenges are. So thank you very much for that, and thank you for your time, and thank you for the

amazing work you're doing. Thanks very much for having me listening to Professor Mellow made me realize that things are both simpler and more complicated when it comes to the distribution and implementation of the COVID vaccines than I had previously thought. In a sense, they're simpler because the frameworks expressed by the National Academy of Medicine are mostly being followed by most of the states, and they're does not seem to be at least thus far, any major public

outcry objecting to them. They're more complicated because the values and principles laid out in those standards are actually pretty under specific with respect to what to do in situations of conflict. The values expressed are all wonderful values, but if you really drill down, there probably would be tensions

between them. But it may well be that no one fundamentally objects to the process by which vaccines are being distributed, and that enough vaccine may soon be available that people who want to get the vaccine can get their hands on it. If we don't have a moment of shortage, then there need not be any intense public debate over the question of who gets the vaccine first. That, of course leads to the question of what will happen when lots of people have gotten the vaccine and some begin

to say that they don't want to take it. And here Professor Mellow's view is, let's not worry about that problem yet. Let's focus in the short term on getting the vaccine to as many people as possible and encouraging people to take it. And then if we get into circumstances where the government or schools or private actors want to obligate people to have vaccines, we will deal with

that problem when we come to it. That's a highly sensible attitude, and I promise that if and when the question of coercing people to get vaccines does arise, we will revisit the issue. Here on Deep Background. We at Deep Background are going to take a short holiday break now, and we hope you'll be able to also until I speak to you next time. Get some rest, Be careful, be safe, and be well. Deep Background is brought to

you by Pushkin Industries. Our producer is Lydia Gencott, our engineer is Martin Gonzalez, and our showrunner is Sophie Crane mckibbeck. Theme music by Luis Kara at Pushkin. Thanks to Mia Lobell Julia Barton, Heather Fain, Carlie mcgliori, Mackie Taylor, Eric and Jacob Weisberg. You can find me on Twitter at Noah Rfeld. I also write a column for Bloomberg Opinion,

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