The Supreme Court of the U.S. (SCOTUS) is deliberating the constitutionality of President Biden’s vaccine mandates. Many legal scholars believe the Biden Administration is on shaky ground and anticipate SCOTUS will strike down these mandates on legal grounds.
But there may be an even better reason to end these vaccine mandates. Dr. Luc Montagnier and Jed Rubenfeld, writing in The Wall Street Journal, say the nature of the Omicron variant has made these mandates moot. Dr. Montagnier won the Nobel prize in 2008 for his discovery of the human immunodeficiency virus (HIV). They say, “It would be irrational, legally indefensible and contrary to the public interest for government to mandate vaccines absent any evidence that the vaccines are effective in stopping the spread of the pathogen they target.”
The mandates were issued on November 5, 2021, when the Omicron variant had yet to be discovered in South Africa. At that time, the Delta variant represented almost all U.S. Covid-19 cases, and both the Occupational Safety and Health Administration and the Department of Health and Human Services appropriately considered Delta their concern and that vaccines were effective against it. But all of that has changed since then.
These authors say since January 1, 2022, Omicron represented more than 95% of U.S. Covid cases, according to estimates from the Centers for Disease Control and Prevention (CDC). Because some of Omicron’s 50 mutations are known to evade antibody protection, because more than 30 of those mutations are to the spike protein used as an immunogen by the existing vaccines, and because there have been mass Omicron outbreaks in heavily vaccinated populations, scientists are highly uncertain the existing vaccines can stop it from spreading.
The legal argument is that SCOTUS held in Jacobson v. Massachusetts (1905) that the right to refuse medical treatment could be overcome when society needs to curb the spread of a contagious epidemic. This is the crux of the case as argued before SCOTUS last week. But mandating a vaccine to stop the spread of a disease requires evidence that the vaccines will prevent infection or transmission. While it is true that the vaccines are effective in reducing hospitalizations and death, they are less effective in preventing infection or transmission.
To be sure, the mandates are defining “vaccinated” as having received at least two shots of the Pfizer and Moderna vaccines and one shot of the Johnson & Johnson vaccine. The protection from getting Omicron is poor with this definition, but improves with booster shots, though it’s uncertain how long this added protection will last.
The good news is that the overwhelming majority of symptomatic U.S. Omicron cases have been mild, according to the CDC. These authors suggest “The best policy might be to let Omicron run its course while protecting the most vulnerable, naturally immunizing the vast majority against Covid through infection by a relatively benign strain. As Sir Andrew Pollard, head of the U.K.’s Committee on Vaccination and Immunization, said in a recent interview, “We can’t vaccinate the planet every four or six months. It’s not sustainable or affordable.”
The main point of these authors is that mandating a vaccine for all workers will not prevent the spread of the Omicron variant and therefore is bad public health policy. In their words, “In other words, there is no scientific basis for believing these mandates will curb the spread of the disease.”
Unfortunately, it seems some of the SCOTUS justices are getting their scientific facts from unreliable sources. Justice Steven Breyer suggested that if mandatory vaccination went forward, that would prevent all new Covid infections – 750,000 new cases every day. Justice Sonia Sotomayor asserted that “we have over 100,000 children. . . in serious condition, many on ventilators.” Both Justices have their facts completely wrong. According to Health and Human Services Department data, there are currently fewer than 3,500 confirmed pediatric Covid hospitalizations, and that includes patients who tested positive but were hospitalized for other reasons.
Hopefully, SCOTUS will decide this case based on the U.S. Constitution, not on misinformation regarding the effectiveness of the vaccines or the number of hospitalizations in children.