COVID-19 Vaccines, Abortion, and Henrietta Lacks: An Interview with Harvard Law School Professor and Health Law Expert I. Glenn Cohen

I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and is one of the world’s most prodigious health law and bioethics experts. Professor Cohen also serves as Deputy Dean of the Law School and Faculty Director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics. His scholarship centers around various disciplines within health law, including health information, mobile health, reproduction/reproductive technology, research ethics, organ transplantation, and COVID-19. Professor Cohen has authored over 200 articles and chapters and has authored, co-authored, edited or co-edited over 18 books. Internationally renowned, his work has appeared in multiple publications and media outlets, including PBS, ABC and CNN.

The interview below was conducted in the Fall of 2021. It has been edited for brevity and clarity.

Harvard Undergraduate Law Review (HULR): Health law is obviously a unique and interesting discipline within legal scholarship. Could you tell me how you developed your passion and expertise in this field, perhaps as opposed to others?

I. Glenn Cohen (IGC): I grew up in Canada — I often start there because Canadians have always been obsessed with health care in a way that only recently has reached the public consciousness of the United States. As a young person, I was torn between pursuing a medical degree, a philosophy PhD, and a law degree. I ruled out medicine relatively early after I realized how difficult organic chemistry would be, and the fact that I thought the number of years ago residency just seemed like a really difficult road to hoe — maybe I was a bit lazy. 

I entered law school thinking about doing a PhD in Philosophy concurrently, but at the time, there was not the same opportunity to double count classes, so I just decided I would do law first and then see what I thought afterwards. My undergraduate degree at the University of Toronto was in bioethics; they had a bioethics subspecialty in the philosophy department, so I was really lucky to be able to engage with these topics, even as an undergraduate. 

When you ask me, “How does my mind work?” It’s some combination of having been educated in philosophy when I was young but also spending a significant amount of time in the debate club at the University of Toronto and high school debate. I think that I often write in a way that I play chess against myself, and I imagine people really going back and forth on hard questions.

HULR: That’s very interesting. I want to quickly turn to one of the salient issues right now in health law, which is the question of vaccine requirements or, colloquially, “vaccine mandates.” New York City has instituted a requirement for its public employees that has engendered a lot of controversy and legal challenges. Can you walk our readers through the legal calculus a city employs to set vaccination requirements?

IGC: While COVID-19 vaccinations are the most recent requirement, in fact, across the history of this country we’ve had lots of vaccination requirements — all the way down to the founding era. If you look at the smallpox period, there were ‘Show a scar’ campaigns because that was how you proved inoculation as a condition of employment or working in particular places. Most familiar to most people will be the number of schools that have required various kinds of vaccinations over time, so the idea of mandating vaccination as a condition of participation in important public good is not an unusual one. And indeed, one might say, given the scope and the threat of COVID-19, it’s in some ways, the easier case, not the harder case. 

Now, so why are people organized against it? In the earlier phase of COVID-19 vaccination mandate litigation, the key question was about emergency-use authorization (EUA), because the Pfizer, Moderna, and J&J vaccines had all been only authorized as a matter of emergency use under the PREP Act, rather than having gone through a full FDA-approval process, which results in a biological license application called BLA. So the first wave of litigation challenged the ability to mandate vaccination as part of a EUA process rather than a full approval. 

My own view was that this argument was incorrect. There were many things that we did that have been authorized under EUAs. My favorite example was COVID-19 tests that universities and employers were using; those, too, were required and were authorized only under an EUA. So there is nothing in the Constitution, the statute or the like that I read to say something that is under an EUA cannot be mandated. The courts that have to consider the question agreed with me; the Office of Legal Counsel at the Justice Department issued a determination to that effect in relation to the Military and Veterans Affairs Department. 

All of that, though, was a live question that has now been completely mooted by the approval of these vaccines. So now there's no difference in terms of the legal status between the COVID-19 vaccines and mumps, rubella, all the other MMR, and all the other stuff we have. So challengers are forced into one of two postures. The first posture is to try to suggest that all vaccine mandates in general violate the Constitution, because again, the state of New York is perfectly free to introduce its own laws to require vaccination just so long as it doesn't violate federal law — in this case, the Constitution. We do have a long standing precedent Jacobson v. Massachusetts (1905), involving the City of Cambridge and smallpox. There have been some attempts to get the Supreme Court to revisit that; they've thus far proved unsuccessful, I would say, and I don't see that changing. 

Where there have been some more successful pushes have been relating to religious exemptions. Now, most employers, most states, that have introduced vaccination requirements have built in a religious exemption, but up until now, the view has been the Constitution does not particularly require them. This is, unlike Title VII, for example, if you're talking about statutory law where you might be required to have a religious exemption; if you're not within Title VII, if it's a different kind of mandate or another relevant statute, the view has been the Constitution does require a religious exemption, but if you have one, you have to administer it in a way that's even handed. Just last week, the U.S. Supreme Court considered an emergency procedure to consider relief in a case brought in Maine, a state which has a health worker vaccination mandate without a religious exemption. And in a six to three opinion, the U.S. Supreme Court rejected giving preliminary injunctive relief, basically requiring that Maine not enforce its mandate. Three of the Justices dissented; they would have heard the case, and they indicated that perhaps they would have given some relief on the theory that this violates freedom of religion in the United States. Two of the Justices, Justice Kavanaugh and Justice Coney Barrett, kind of wrote a slightly more, I would say, squirrely opinion, where they said this doesn't meet our standards for giving emergency relief, but they haven't ruled out the idea that they might consider the question, and the rest of the Justices were silent. They just denied the request to order relief, preventing operation of Maine’s vaccination mandate. And presumably, they don't think there's much smoke or fire there. So this was a bit of a setback for challengers to states that lack religious exemptions, but most of the states and most employers have built in the religious exemptions, so I don't know that we'll see too much more litigation, but who knows?

HULR: That's very interesting. I understand that different levels of government, and even private businesses have different types of vaccine requirements. Are there different standards that the state or the federal government has to meet when setting a vaccine requirement? Are they constrained in any way with what they can legally implement? Or are the differing policies on different levels of government more of a political phenomenon that we're seeing?

IGC: I don't want to say they're completely unconstrained, but I would say that what we have seen is that, typically, they have mandated the FDA-approved vaccines or EUA-authorized vaccines. Most of the mandates I've seen do not, for example, accept the Russian or the Chinese vaccine as a substitute. That might be difficult, actually, when I think about it, because those vaccines have not gotten emergency authorization or approval in the United States, so I don't know that you could mandate a vaccine that had neither any EUA nor an approval, biological licenses application, in the United States. But nobody has tried to do that, as far as I know. But say we also accept somebody who's vaccinated with one of the non-approved vaccines. I haven't seen too much of that, but I don't know that there's a legal obstacle to accepting a wider variety of vaccines than what has been approved.

HULR: That’s fascinating. I think there's also a moral side to this debate over vaccine requirements, with some indicating that it's ‘my body, my choice,’ trying to invoke the language of abortion — in this case to highlight the hypocrisy that they perceive in such mandates. As a bioethics expert, what is your response to individuals who say that a vaccine requirement is an infringement on their liberty?

IGC: I go back to the great libertarian thinkers like John Stuart Mill, all of whom believe that the ability to swing my fist should end at your face, which is just to say I have no right to expose costs upon you and to put your life in danger. And this has long been our view. So there are two arguments for vaccination. One is externalities oriented — that you're being unvaccinated imposes costs and risks and others. The other is paternalistic — the idea that it protects you. We do have many laws like motorcycle helmet laws, like seatbelt laws, that are primarily paternalistic in nature, in terms of a justification for restricting autonomy, but we don't even have to go there with vaccination. It is to say that if you want the privilege of entering into a space with other people, some of whom may be immunocompromised for all you know, or have serious health conditions, and we said to you there's something that you could do that will reduce the risk for these other people, it does not seem to be an affront to your liberty to say that is a requirement for civil society and for these opportunities. Just as again, if you had something that was not a biological but another kind of danger — for example, you wore shoes with very sharp spikes out of them — to say to you, in this building, we'd like you to take off those shoes doesn't seem to be an infringement. 

Now, there could be a case where what we were asking of you is such a heroic sacrifice of your liberty, even in the name of helping avoiding putting others into danger, it's not proper to ask you to do that. If we were talking about a vaccination or a vaccine that had significant risks to individuals, that would be an argument worth having — a good political theory question about exactly how much we can ask people to give of themselves in order not to put other people in danger. But here with what we know about these vaccines, while there are risks as there are with all vaccines, it doesn't strike me as being completely not proportional to what we asked people to do in the past. 

We ask all sorts of things of our citizens, from paying taxes to driving safely to serving in the military during periods of conscription — all for the sake of protecting one another and keeping one another safe. What we're asking people is much more de minimis than many of these others. And yes, it's true that it involves an injection into ‘my body’, but so does taxing labor; taxing labor is basically requiring me to pay something, requiring me to do something with my body. So I'm not particularly drawn to the idea that this is a bodily integrity violation, and thus, it's different. The last thing I'll say on this is, if it turns out this is your attitude towards the COVID-19 vaccination, this should have been your attitude all the way throughout, through all of the ways in which we've had people vaccinated over the last 150 years, as well as all sorts of other things we ask people to do in order to keep other people safe. It’s completely consistent with a libertarian ethos to say you have no right to impose serious externalities on other people.

HULR:  I want to turn to another very salient health law issue, which is abortion. I know that the Supreme Court will be hearing argument and multiple abortion cases in this term. What is your sense of how this new court will deal with the precedent set in Roe v. Wade (1973) and then Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)?

IGC: I'm not optimistic is the short answer. The day before this interview, we had the oral argument on the Texas strict six week ban on abortion, which essentially, is a being a ban on almost all abortions, because most people do not know that they are pregnant within six weeks. We’ll see what happens; it seems to me there is a highly procedurally complex question relating to what's called Ex Parte Young, about whether Texas has designed a mousetrap in such a way to prevent the federal courts from even reviewing this question, and declaring it unconstitutional. To me, I sense from the court's questions that we will get a majority of the Justices that will allow the case to proceed in Texas and to have a determination of its unconstitutionality under the existing precedent. I don’t think this case will really make an inroad to abortion law. 

Instead, I do think it will be the Dobbs case that will be argued in December, probably decided in May or June, that portends a significant departure from existing precedent, and in particular, I think the case will turn on the question about viability. So under Casey, the Supreme Court moved a little bit from the Roe framework to declare that, while states may do a lot of abortion restrictions post-viability, pre-viability they may not act to impose an undue burden on pregnant person's and their rights. And this is the part of the holding that I think the Supreme Court will likely chip away with in the Dobbs v. Jackson Women’s Health Organization case, though it’s a little unclear what it is they will replace it with. 

There have been lots of interesting discussions about whether, if you get rid of Casey, what do you have left? Is it really states may always restrict abortion? I don't quite know what they're going to do, but my sense is that they're going to probably do something that will make abortions harder to get post-Dobbs than before Dobbs. Now, to be clear, Roe and its progeny prevent states that want to restrict abortion to a certain extent; there's nothing though that requires [emphasis added by IGC] states to restrict abortion. We currently have a significant checkerboard when it comes to abortion access, but there's a floor set by Casey; that floor will be removed, and I think we'll see even more divergence in abortion access post-Dobbs. There'll be states like Massachusetts, where abortion will be easy to get many stages, and there'll be other states like Texas and Louisiana, where it will be extremely difficult to get, and we will see a lot more interstate travel for abortion.

 For some individuals, this will merely be an inconvenience, but for some women, this will be the difference between accessing abortion or not. If you are in an abusive relationship, and you need an abortion, and you don't want your partner to know, you need to drive 500 miles to get an abortion at best, maybe longer. That may put you in danger. There's a whole set of women whose practical abilities to get abortions will not be solved by saying that there will be interstate abortion accessibility. The other thing that will put pressure on is the access to what sometimes called medical abortion or early abortion. And here again, we've had some interesting back and forth depending on who's been in power, so that would be the other thing that I would pay attention to in the post-Dobbs moment, as to how much of this access can be made up with, with medical abortion. My sense is some but certainly not all. So if you are a woman, or a person who is concerned about pregnant person's abilities to access abortion, you should be very worried about the Dobbs case in my view.

HULR: That’s very interesting. I understand that these cases, or at least the Dobbs case, hinge on the idea of stare decisis — whether the court should maintain its precedent or not. What do you think is an argument for the value of maintaining stare decisis in these cases? And then what's the argument on the other side to overturn the precedents?

IGC: For overturning it, there are some Justices that just don't believe in stare decisis; Justice Thomas has probably been the most vocal, which is to say that he believes that, if we made an incorrect decision 100 years ago as to the meaning of the Constitution, we are to correct it at the moment when we've come to the conclusion that it's wrong. There has not been our tradition in this country; our tradition in this country has been — for the sake of settled expectations, for the state of stability, for the sake of removing some things from political contestation —  we tend to leave opinions in place. 

Now, that said, there are plenty of decisions that progressives like that have departed from stare decisis; Lawrence v. Texas (2003) regarding the criminalization of same-sex sex — sodomy is what they put in the statute — overturned a decision called Bowers v. Hardwick (1986) that basically said those restrictions were constitutionally permissible. So we have lots of times where we've departed from stare decisis; Brown v. Board of Education (1954) is another great example of departure from Plessy v. Ferguson (1896) and the like. The real question is how easy or hard it ought to be and what are the appropriate circumstances under which to do it. 

And indeed, this has come up in the last several confirmation processes. Perhaps tellingly, when pressed on the matter, then Judge Coney Barrett was asked whether she regarded Roe super precedent — that it has a certain amount of gravitational force, that it should not be overturned. And she gave an answer that should not give us a lot of confidence that she wouldn't be ready to overturn it. I think there are lots of interesting scholars and discussions about whether stare decisis is a good example, but perhaps my favorite line about this comes from a podcast I love called ‘Strict Scrutiny,’ run by some really terrific law professors, and they have a great saying, which is “Stare decisis is for suckers” — this idea that it would be wrong if half the court doesn't believe it, and half the court does. It's a bit of a strange world to be in. Why should you tie your hands on one side, if the other side doesn't believe it? So I don't know where we're heading on that, and I'm not a scholar of stare decisis. Casey itself was a departure from Roe, although the opinion has a long discussion about why they are nonetheless respecting Roe, but they are altering it. 

So the process of law development is always an openly textured one. One thing that's been interesting about the Roberts Court — the court since Chief Justice Roberts became the Chief Justice — is the idea that, rather than overruling its own precedents, there's been a strong preference for narrowing those precedents incrementally over a period of time. So that is interesting, as opposed to actually taking the political hit and say we're actually overruling something. So maybe we would be better off if the courts are de facto overruling some decisions; maybe it would be better to force them to actually say the words, rather than allow them to basically look as though they are merely adding, changing, slightly when the effect of their opinions is to essentially overrule prior decisions.

HULR: That makes sense. One final issue I wanted to discuss very briefly is the legal dispute surrounding Henrietta Lacks cells, which has been widely used in biomedical research but, obviously, without Lacks’s consent. Can you give our readers a sense of what this means for our autonomy over our cells?

IGC: First we should note that Henrietta Lacks was treated very poorly by the healthcare system at the time she sought care, but in a way that almost all Black women in similar circumstances were treated poorly. What differentiates her case was that the cells that were taken from her prove to be extraordinary. And at the time, the use of cells from individuals without their consent, taken from tissue that was extracted, was not considered to be a violation of medical ethics. So that's important to understand: that nobody's taking the position that, even at the time, this was a violation of medical ethics. 

People will be shocked to learn that most of us have currently signed away the rights to anything that is valuable from material taken from a blood draw. Most of us have given blood for a test, for example, or even for a removed tumor; there's standardized language in many of the things we sign even to this day. And the common rule, which is the research ethics rules in the United States, basically treats secondary research on de-identified tissues as not falling within the scope of its review. What this means is that much of our tissue is being used or could be used to develop products that we will have no say on whether they're developed and certainly no financial benefit to us. Whether that's a good or a bad thing, I think, is actually quite complicated and depends in part on your prior beliefs about our control of our tissue and whether our tissue is us. Unlike, for example, your labor when it comes to our genetic material, it's merely things about us that we are shedding all the time. So if there is a valuable use by someone else of that, why is it problematic? 

The best arguments, I think, connect the idea that there's a reflection of our personhood, but in what way is our personhood reflected in things that are developed from our bodies, when they are largely de-identified this way? And one way to think about this is, while it is true that Henrietta Lacks cells are very useful in this way, in order to do biological testing and the like, many people's cells are used as normal controls. The normal controls are also causally related to the final product we have created, but do we have the same intuition about the idea that the normal control cells are being reflected here? That's all on the moral bioethics questions. I've got a great interview in this online course I did on reproductive technology genetics on HarvardX Rebecca Skloot, who wrote the great book The Immortal Life of Henrietta Lacks, where we talk about exactly these issues. 

On the legal question to the most recent lawsuit against ThermoFisher by Lacks’s family, there are a couple of additional hurdles. First is the fact this is so much later in time, so there are some statute of limitations questions. There's also the question about whether her family has standing or has a claim here, as opposed to her. So my family may not like that I became a sperm donor; they typically don't have the right to overrule that decision. Or if I donated my body to science, they also don't have the right to overrule that decision. So why does your family have a say in terms of profiting? And then finally, the theory they've put forward of unjust enrichment is a way to try to avoid restrictions that have been introduced on a theory of conversion, civil theft. But I’m familiar with Greenberg v. Miami Children's Hospital Research Institute (2003) relating to people who participated and donated tissue related to Canavan’s X disease. In that case, while the court did say to go forward with the unjust enrichment, they go out of their way to make the point that this wasn't just the giving of tissue with genetic samples, but in fact, a long standing collaboration with a rare disease group and the researchers to almost co-invent, co-produce. That's very different from the Henrietta Lacks case, and a reason why I think courts may have a hard time giving relief. 

That said, the strategy of litigants in this case may not be to win the case, but merely by bringing the case, the bad publicity associated with it, and bringing this into public consciousness, may actually cause some of the other entities that are using cell to engage in settlement or other prosocial behaviors. So lawsuits have a lot of big roles to play, even when they don't wait at the end of the day. And maybe I'm wrong; maybe they will win.

HULR: That is fascinating. Thank you so much, Professor Cohen, for your insights. Are there any final comments you’d like to make on any of the issues we’ve discussed today?

IGC: Just to say this is a terrific area of law inquiry to go into. I love every day of my life working on these topics, so if you're thinking about it, I highly recommend it for you.