The argument that natural immunity to COVID-19 is an alternative to vaccination appears to be a potential legal challenge to federally mandated vaccination policies.
Vaccination is already compulsory for some workers and some students. The federal government, despite greater legal barriers to imposing vaccination, has also invoked the United States Department of Labor to mandate vaccination on healthcare workers and should roll out a broader policy effectively requiring vaccination for a majority of people. American workers.
The stated goal of mandatory vaccination policies is to protect against the spread of disease, which means that the heart of any policy is immunity. The idea that a previous infection with COVID-19 provides natural immunity that may be at least as good as vaccination in some people is something a judge should probably take into account in a dispute. a binding policy, in particular against a government actor.
“I think a judge might reject a rule that was issued by an organization, like the US Department of Labor or by a state, that has not been given sufficient thought in regards to science,” Erik Eisenmann, a labor specialist and employment lawyer with Husch Blackwell, told Yahoo Finance.
Some recent research, which examines hundreds of thousands of cases in Israel and has not yet been peer reviewed, indicates that natural immunity may be at least as effective as vaccination in some people. . Other peer-reviewed research cited by the Centers for Disease Control and Prevention (CDC), which examines dozens of cases in the United States, indicated that some people who suffered from COVID-19 infection did not create antibody (i.e. natural immunity) at all.
In August, the CDC released a study of 246 Kentucky residents, concluding that vaccination offers higher protection than a previous COVID infection. The CDC said the study went through a “rigorous multi-level clearance process” before it was submitted, although the analysis was conducted before the Delta variant became widespread in the United States.
CDC says data from Kentucky indicates vaccines offer better protection than natural immunity alone, and medical professionals widely recommend vaccination for all eligible people, including those who have previously had a COVID infection. -19.
“We’re concerned about immunity, not how you get there”
The legal challenge to COVID-19 vaccination warrants involves both science and the law.
The scientific arguments are based on some studies from the past year, including the Israeli study and studies from the Cleveland Clinic and the University of Washington.
A June study that followed 52,238 Cleveland Clinic employees found that of the 1,359 previously infected and unvaccinated people, none had acquired a subsequent infection with COVID-19 during the five-month study. The results led the authors to conclude that a previous infection makes a person “unlikely to benefit from COVID-19 vaccination.” Nonetheless, the Cleveland Clinic later said it continued to recommend vaccination for those previously infected, noting that the research was conducted in late 2020 and early 2021 before the emergence of the Delta variant.
The Israeli study of 673,676 people found that people who recovered from a previous SARS-CoV-2 infection and who had not been vaccinated were 27 times less likely to experience symptomatic reinfection of the variant. Delta compared to those who had not been infected and received two doses of the Pfizer-BioNTech Vaccine. The study also found that previously infected people who received a single dose of the vaccine received additional protection against the Delta variant.
In a smaller study conducted by the Washington University School of Medicine and published in Nature, senior author Ali Ellebedy, PhD, associate professor of medicine and molecular microbiology, found antibody-producing cells in the bone marrow of 15 of the 19 study subjects 11 months after their first symptoms of COVID-19. “These cells will live and produce antibodies for the rest of people’s lives. This is strong evidence of long-lasting immunity,” Ellebedy said.
In terms of legal arguments, George Mason University Foundation law professor and Cato Institute principal investigator Todd Zywicki legally challenged the university’s vaccine mandate and then came to an agreement that led to the prosecution being dropped.
Zywicki told Yahoo Finance that while government entities have the right to take reasonable precautions against the spread of communicable diseases, that power has its limits. These limits, according to Zywicki, are based on the 1905 Supreme Court decision Jacobson v. Massachusetts which confirmed a mandate for the state’s smallpox vaccine, although the precedent may be disputed given legal and scientific developments.
“It was a different medical age,” Zywicki said. “There was no way to confirm if you had a previous infection and healing, which you obviously do now.”
A Michigan State University employee recently cited natural immunity as part of an attempt to obtain a temporary restraining order against the school’s vaccination mandate. The federal judge in charge of the case rejected the request, ruling that the employee “has not demonstrated a high probability of success on the merits of her request”. Following a September 22 hearing, the judge is now determining whether to issue a preliminary injunction to allow an exception to the school’s vaccination mandate.
Zywicki said that a modern legal analysis should also take into account the 1927 Supreme Court decision in Buck v. Bell, who solidified individual rights to bodily autonomy.
In Buck, the court struck down a Virginia law allowing the state to impose sterilization on men and women found to be mentally retarded. Subsequent cases, Zywicki said, have followed this jurisprudence, believing that even prisoners cannot be subjected to state-mandated drug injection against their will, especially if the warrant is for the convenience of the State.
“Of course, we are repelled by this kind of attitude: that the government can do anything to you just because it thinks it is a practical way to solve a social problem,” he said.
Zywicki further argued that some state laws that govern the vaccination of students and others that must be protected against measles, mumps, rubella, do not provide states with the power to require vaccination. Instead, he said, they require proof of immunity. No option of proof of immunity is available in some states for diseases such as tetanus and polio.
“We’re concerned about immunity, not how you get there,” Zywicki said.
“Science will have to move fast enough”
There is little room to challenge the independent immunization mandate of a private sector employer because private employers, with few exceptions for medical and religious reasons, have the right to adopt their own policies outside of everything. government mandate.
Therefore, challenges to vaccination warrants are much more likely to be viewed as contrary to the vaccination rules of the Department of Labor or other government-run entities (as in the case of Michigan State University).
At the same time, some private companies are incorporating natural immunity into the rules of company vaccination.
On September 9, Spectrum Health, a Michigan-based healthcare provider, became one of the first large employers in the country to offer its workers proof of natural immunity as a temporary alternative to vaccination. According to Detroit News, the company will accept a positive antibody test within the past three months coupled with a positive PCR test or antigen test for COVID-19 as proof of immunity.
In the case of federal warrants, the scientific and legal arguments in favor of natural immunity could face an uphill battle.
David Baffa, an employment litigation lawyer and head of Seyfarth Shaw’s workplace advisory and solutions group, said he does not anticipate federal mandates will include a path to authorize l natural immunity instead of vaccination, unless there is a dramatic change in the science cited by the government.
“I think the science is going to have to move pretty fast, and by that I mean the Centers for Disease Control and Prevention and the recognition of [natural immunity] as a viable alternative, ”Baffa told Yahoo Finance.
Zywicki, for his part, expects courts facing decisions over COVID-19 vaccination warrants to eventually reconcile previous competitors.
“Clearly, here there is no compelling interest,” he argued regarding a government’s interest in treating vaccinated individuals different from those who prove acquired immunity by a. previous infection. “And we have all kinds of ways to verify [immunity]. What the government should do is find creative ways to recognize this. “
Eisenmann, the labor and employment lawyer, said some plaintiffs might be able to make a legitimate legal argument if natural immunity is proven to be at least as good as vaccination.
“Right now I think it’s been easy for employers and the medical community to say the vaccine is always better,” he said. “But science is evolving and there are new strains.”
Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.
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