OLYMPIA, Wash., September 7, 2021 — Immediately following Gov. Inslee’s press conference on August 18, wherein he issued a vaccine mandate for state employees, the Lynnwood Times reached out to his office, inquiring whether a governor has the authority to mandate a vaccine that isn’t FDA approved. The Executive Director of Communications for the Governor’s Office responded by assuring the Lynnwood Times that “the source of the Governor’s authority to mandate vaccines is found in his emergency powers, and specifically, his broad prohibitory powers during declared states of emergency.”

Additionally, the Executive Director stated that “for our updated orders, the authority will be the same,” and specifically referred to the governor’s powers during a state of emergency as detailed in wa.gov. Gov. Inslee specifically cites these emergency powers in his proclamation on page four in the “NOW, THEREFORE” section. 

The Legalities of the Vaccine Mandate

Gov. Inslee’s legal authority to mandate a COVID-19 vaccine was questioned shortly after the press release, as none of the vaccines had received FDA approval at the time. The move seemed to contradict an April 2021 memo released by Liberty Counsel, a national nonprofit litigation public policy organization, which stated that current COVID vaccines cannot be mandated nor required as a condition of employment because of its Emergency Use Authorization (EUA) categorization by the Food and Drug Administration (FDA).

However, on August 23, just a few days after Gov. Inslee’s press conference, the FDA approved the Pfizer COVID-19 vaccine. In the official release, the Acting FDA Commissioner, Janet Woodcock, M.D., said, “The FDA’s approval of [the Pfizer-BioNTech COVID-19] vaccine is a milestone as we continue to battle the COVID-19 pandemic. While this and other vaccines have met the FDA’s rigorous, scientific standards for emergency use authorization, as the first FDA-approved COVID-19 vaccine, the public can be very confident that this vaccine meets the high standards for safety, effectiveness, and manufacturing quality the FDA requires of an approved product.”

FDA Press Officer Abby Capobianco made it clear to the Lynnwood Times that “the FDA does not mandate vaccinations. Whether a state, local government or employer, for example, may require or mandate COVID-19 vaccination is a matter of state or other applicable law.” Capobianco also reiterated how, while Pfizer’s emergency authorization is in effect for children between the ages of 12 and 15, the FDA approval only applies to citizens who are 16 years of age or older.

The Nuremberg Code

Before the FDA approval of the Pfizer vaccine, a popular debate surrounding vaccine mandates was whether or not they were a violation of the Nuremberg Code. Resulting from the aftermath of World War II, the Nuremberg Code is essentially a code of ethics regarding medical experimentation. But, as one vaccine has FDA approval, the “medical experimentation” argument holds less water. 

The first clause of the code states that “The voluntary consent of the human subject is absolutely essential” in medical experiments. The clause continues by saying that any person involved must have a legal capacity to give consent “without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion.” Some argue that Gov. Inslee’s making vaccination a condition of employment qualifies as a form of force, constraint, or coercion and thereby violates the Nuremberg Code.

Similar sentiments regarding vaccine mandates have circulated enough to make national news. Just last month, USA Today published an article titled, “Fact check: COVID-19 vaccine mandates don’t violate Nuremberg Code.” After citing headlines shared on social media suggesting that vaccine mandates violate the code and are “punishable by death,” the article labels the claims as “not accurate.”

According to USA Today, the primary reason COVID-19 vaccine mandates are not in violation of the code is that the vaccines are not experimental. As the article was published on August 10, 2021, thirteen days before the FDA approval of the Pfizer vaccine, it acknowledges that the vaccines were only authorized for emergency use. However, to receive the Emergency Use Authorization from the FDA, the vaccines still had to undergo testing and approval.

FDA Press Officer Abby Capobianco corroborated this claim. “Although an authorization is not an FDA approval, the FDA conducted a thorough scientific evaluation of each of the authorized vaccines and can assure the public and medical community that the vaccines meet FDA’s rigorous standards for safety, effectiveness, and manufacturing quality,” she says.  

Independent fact-checkers at fullfact.org, who also reported on the matter, were able to speak with Dr. Alexis Paton, a lecturer in social epidemiology and the sociology of health at Aston University, Birmingham. According to Dr. Paton, the Nuremberg Code is “very specifically about experimentation.”

“The Nuremberg Code is about the active experimentation on humans, for the most part during some sort of clinical trial of some description,” she told Full Fact. “So when we talk about Pfizer or AstraZeneca [vaccines], we’re out of the auspices of the Nuremberg Code because this is a product that has been trialled [sic], with appropriate ethics in place, and has been approved and is now in production and being used globally.”