Even If Requiring People Who Have Recovered From COVID-19 To Be Vaccinated Is Legal, That Doesn’t Mean It Makes Sense
A federal judge on Friday rejected a Michigan State University (MSU) employee’s motion for a preliminary injunction against the school’s requirement that staff members be vaccinated against COVID-19. Jeanna Norris, an administrator at the school, argued that her “naturally acquired immunity” made the mandate “unlawful” as applied to her and other staffers who have recovered from the disease. U.S. District Judge Paul Maloney concluded that, notwithstanding the scientific evidence that Norris cited to support her position, the public university’s policy easily satisfied the “rational basis” test.
That standard of review is highly deferential, so it is not surprising that Norris, who is represented by the New Civil Liberties Coalition, did not get the injunction she wanted. Maloney notes that the Supreme Court applied what was essentially a rational basis test (although that term had not been invented yet) in the 1905 case Jacobson v. Massachusetts, which involved a state-authorized requirement that Cambridge residents be inoculated against smallpox or pay a $5 fine (equivalent to about $155 today).
Maloney rejected Norris’ argument that the vaccination requirement violates her fundamental rights to privacy and bodily integrity, which would have triggered strict scrutiny under the 14th Amendment, a much more demanding standard of review. “Plaintiff is absolutely correct that she possesses those rights, but there is no fundamental right to decline a vaccination,” he writes. “She also does not have a constitutionally protected interest in her job at MSU, which Plaintiff’s counsel conceded. The MSU vaccine policy does not force Plaintiff to forgo her rights to privacy and bodily autonomy, but if she chooses not to be vaccinated, she does not have the right to work at MSU at the same time.”
That analysis suggests why similar legal challenges by people with naturally acquired COVID-19 immunity are unlikely to succeed in court. But it does not settle the question of whether mandates like MSU’s, even if “rational” in the legal sense, are fair or reasonable in light of the scientific evidence.
Norris “has already contracted and fully recovered from COVID-19,” her complaint says. “As a result, she has naturally acquired immunity, confirmed unequivocally by two recent SARS-CoV-2 antibody tests. Her immunologist, Dr. Hooman Noorchashm, has advised her that it is medically unnecessary to undergo a vaccination procedure at this point.”
Maloney heard from dueling scientific experts on the question of how much protection prior infection confers. “There is ongoing scientific debate about the effectiveness of naturally acquired immunity versus vaccine immunity,” he writes. But he adds that “even if there is vigorous ongoing discussion about the effectiveness of natural immunity, it is rational for MSU to rely on present federal and state guidance in creating its vaccine mandate.”
That legal conclusion is distinct from the policy question of whether it makes sense as a workplace safety measure to impose a vaccine mandate with no exception for people like Norris—an issue that could be important in evaluating the legality of the Biden administration’s pending regulation demanding that companies with 100 or more employees require them to be inoculated or undergo regular coronavirus testing. That rule, which the White House announced a month ago, still has not been published. But it is not expected to include an exception for employees who have recovered from COVID-19.
The administration is relying on the authority that Congress gave the Occupational Safety and Health Administration (OSHA) to issue an “emergency temporary standard” when it is “necessary” to protect employees from “grave danger.” The issue of whether unvaccinated people with natural immunity pose such a danger is therefore legally relevant. It is also relevant for employers who are deciding the details of their own policies.
A widely cited Israeli preprint study pos
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