VACCINATING URBAN POPULATIONS IN RESPONSE TO COVID-19: LEGAL CHALLENGES AND OPTIONS.

• Author: Hodge, James G., Jr.

Introduction 2 I. Pervasive Impacts of COVID-19 Among Urban Populations 5 II. Unique Challenges of Vaccinating Urban Populations 9 III. Public and Private Sector Efforts to Maximize Urban Vaccination Rates 13 IV. Underlying and Emerging Law and Policy Issues 20 V. Legal Options Supporting Urban Vaccination Uptake 26 Conclusion 30 INTRODUCTION

Against the backdrop of the COVID-19 pandemic--the most impactful public health emergency in U.S. history'--arose the real-time development and authorization of multiple efficacious and safe COVID-19 vaccines. (2) Through Operation Warp Speed, (3) major U.S. pharmaceutical companies like Pfizer,[R] Moderna,[R] and Janssen,[R] a division of Johnson & Johnson,[R] continue to align with federal authorities on this stellar achievement. Suppressing the pandemic relies predominantly on the most systematic national vaccine campaign ever undertaken. Immunizing hundreds of millions of U.S. residents against the COVID-19 virus by late-summer 2021 is the goal. (4) Reaching it is not so easy. (5)

Extensive uptake of COVID-19 vaccines is key, especially among U.S. urbanites doubly hit by (1) the relative ease of COVID-19's spread in dense areas and (2) months of social distancing impacting their economic and social interests. (6) Vaccinating populations across U.S.-metropolitan areas raises manifold challenges. Early access to COVID-19 vaccines was specious. (7) Not everyone was suitable or eligible for COVID-19 vaccination, notably those who are immuno-compromised and children (ages 0-11) whose full, unmitigated return to daycares or schools depends on achieving herd immunity. (8) Millions of U.S.-city dwellers are reticent about vaccinations for fears of their potential harms due to copious, false information (9) or long-standing distrust of governmental medical and public health interventions. (10)

Governments and private sector entities responded to these and other challenges in divergent ways. The Biden Administration endorsed recommendations to assure equity in the allocation of vaccines, consistent with guidance from the National Academies of Sciences, Engineering, and Medicine." The President's National COVID-19 Strategic Plan expressly promoted widespread access, education, and distribution of vaccines in hard-hit locales. (12) State and local governments set or supported varying vaccine mandates, provided alternative incentives for vaccinations, or posited "vaccine passports." (13) Manifold employers and universities have required COVID-19 vaccinations in specific jurisdictions, leading to lawsuits and legislative objections. (14) Vaccine lotteries in some states heightened concerns among urbanites. (15) Even as extensive vaccine hesitancy compromises national vaccine objectives and threatens the health of entire metropolitan areas, (16) the U.S. Supreme Court seems poised to broadly require religious exemptions to vaccines overall. (17)

This Essay explores legal and policy perspectives underlying these profound issues, proffering guidance on national mass vaccination efforts to help urban populations return to levels of post-pandemic normalcy, coextensively saving tens of thousands of lives. Part I examines the disproportionate effects of COVID-19 on urban populations, exacerbated by accelerated disease spread in densely populated communities, health disparities among ethnic and racial minorities, and adverse economic effects of social distancing. Challenges accompanying efforts to vaccinate urbanites, including logistical obstacles and hesitancy, are explored in Part II. Part III assesses the extensive national push to promote vaccine awareness and health literacy, equitably allocate vaccine resources, and increase COVID-19 vaccination rates through traditional and novel routes. Based on these observations, Part IV highlights complications inherent in vaccinating urban populations arising from opposing legal and ethical perspectives on vaccine equity, incentives, mandates, and religious interests. To increase uptake of COVID-19 vaccines among U.S. urban populations, Part V lays out several legal and policy options to promote health equity, counter vaccine hesitancy, utilize incentives, and adapt to changing responses amid fluctuating emergency powers.

1. PERVASIVE IMPACTS OF COVID-19 AMONG URBAN POPULATIONS

   COVID-19 has been referred to as the "great equalizer*' (18) in terms of its impacts on all U.S. residents. However, the COVID-19 pandemic asymmetrically affects urban populations. Approximately 83% of the U.S. population lives in urban environments, (19) but, as of June 16, 2021, nearly 89% of U.S. COVID-19 deaths have occurred in such areas. (2)' (1) Coupled with concomitant morbidities impacting urbanites, these findings reveal existing health disparities among vulnerable populations. (21)

   That urban populations in the United States suffer heightened death rates from COVID-19 compared to rural populations is epidemiologically understandable. The high infectivity and reproductive qualities of COVID-19 facilitate its spread among individuals living, working, and socializing in close proximity. (22) Multi-generational and multi-family housing, (23) widespread use of public transportation, (24) and social lifestyles in U.S. cities contribute to disease spread. Unsurprisingly, COVID-19 case counts exploded at the inception of the pandemic in March 2020 in densely populated places like Seattle (25) and New York City. (26)

   Deleterious impacts of COVID-19 are accentuated especially among urban populations at heightened risk of infection, including minority groups and persons experiencing homelessness. (27) During the pandemic, COVID-19 death rates among Black, Latino, and Indigenous U.S. residents were more than double the death rate of white residents. (28) Reasons underlying these disparities include (1) limited access to health services; (29) (2) employment-related risks of exposures; (30) (3) increased rates of pre-existing health conditions; (31) and (4) economic inequalities. (32) Individuals experiencing homelessness must often shelter, eat, and congregate in cramped settings where proper social distancing is impossible. (33) Governmental stay-in-place orders designed to abate disease spread are hard to follow among individuals lacking access to safe housing (34) or in crowded city infrastructures. (35)

   Months of extensive social distancing to quell COVID-19 had collateral consequences in urban settings. Economic adversity arose due to increased unemployment rates despite unprecedented government stimulus efforts. (36) Between January 2020 and March 2021, more than 74.7 million U.S. residents lost their jobs. (37) Unemployment claims in the United States rose 99% at the end of May 2021 compared to January 2020. (38) Since most U.S. jobs are based in urban settings, unemployment rates unsurprisingly were highest in large U.S. cities. (39) These collective economic impacts were compounded by threats of home evictions, (40) mental health impacts of social isolation, (41) increased illicit drug and alcohol use, (42) and poverty, (43) all present in greater degrees among U.S. urban populations during the pandemic.

2. UNIQUE CHALLENGES OF VACCINATING URBAN POPULATIONS

   Following the authorization of the first COVID-19 vaccines in December 2020 by the Food and Drug Administration (FDA), (44) state and local health departments had to quickly develop and implement efficient distribution plans. Logistical challenges (45) were compounded by substantial post-holiday spikes in COVID-19 infections occurring nationally in early 2021, leading millions of U.S. residents to clamor for vaccines. Immediate and extensive administrations of COVID-19 vaccines were needed to obviate morbidity and mortality occurring in U.S. cities. As free vaccines initially rolled out to states via federal allocations, the national vaccination campaign commenced. Demand quickly outstripped available supplies, requiring state or local health departments to allocate vaccines rapidly, safely, and ethically.

   Seemingly overnight, large parking lots across urban locales were converted to massive vaccine points of distribution (PODs). (46) In Anaheim, California, Disneyland became a "super" POD with a goal of vaccinating 7,000 persons per day. (47) At the height of COVID-19 vaccine administration in March 2021, a 24/7 vaccination site at State Farm Stadium in Glendale, Arizona, administered one vaccine approximately every ten seconds--totaling 9,000 vaccines a day. (48) Speed on site was essential. Authorized vaccinations from Pfizer[R] and Moderna[R] each required two doses approximately three weeks apart, (49) as well as specific cold storage measures and vial distribution limitations. (50) Assuring recipients received COVID-19 vaccines safely while mitigating waste was a daily ordeal. (51)

   Other logistical problems arose. Registration systems in many states were difficult for persons to navigate after some websites were slowed or crashed due to high demand. (52) Inclement weather, such as snow and heat, forced some urban PODs to close temporarily. (53) Enormous PODs often needed hundreds of daily volunteers to operate. (54) When COVID-19 vaccine eligibility expanded, volunteer sign-ups tapered off, and meeting personnel needs became more difficult. (55) Accessing sites that delivered COVID-19 vaccines to persons in their vehicles proved troublesome for urban individuals who lacked time off work, (56) reliable internet access, (57) or transportation. (58) Using websites to make COVID-19 vaccine appointments was difficult, especially for elderly persons without computer skills (59) and low-income individuals lacking access to affordable internet. (60) Communication barriers stymied millions of U.S. urban residents from getting vaccinated as information on access was not always well-translated into various languages. (61)

   Despite substantial logistical challenges, tens of millions of U.S. residents...