On November 5, 2021, the Occupational Safety and Health Administration issued an emergency temporary standard (ETS) requiring businesses with 100 or more employees to enforce a vaccination‐or‐testing regime. The Supreme Court has already stayed the ETS pending further litigation, but OSHA is still treating it as a proposed permanent rule, so Cato filed a comment on that proposal.
The arguments for why the ETS goes beyond OSHA’s statutory authority, violates the major questions and nondelegation doctrines, and has other defects of administrative and constitutional law, have been spelled out in detail elsewhere, including by the Court itself, so our comment focuses on how arbitrary and capricious the ETS is in ignoring natural immunity and the effects of vaccination on Covid‐recovered individuals, as well as on the weakness of the communitarian argument for mandatory vaccination.
Universal vaccine mandates are irrational in ignoring naturally acquired immunity from infection and recovery, which has come to be referred to as “natural immunity” in public discussion. This single‐minded focus on vaccination as the exclusive means to acquiring immunity is largely novel. Contrary to conventional belief, states typically do not have “vaccine” requirements for children to attend school or any other purpose; they require evidence of immunity to certain viruses, whether through serological testing that evidences the presence of relevant protective antibodies or evidence of prior history “diagnosed or verified by a health care provider.” Virtually all countries in the Western world that impose some form of vaccine passport or mandate recognize natural immunity to Covid as qualifying for at least six months post‐recovery.
If OSHA had reviewed the medical and scientific literature regarding the relative protective efficacy of natural immunity compared to vaccination, it is unlikely that the agency would be successful in establishing a factual basis for forced vaccination of Covid‐recovered individuals. Given the trivial—if any—benefit to either the individual or the public from compelled vaccination of Covid‐recovered individuals, that evidence of elevated adverse effects requires an especially high standard of proof by regulators to overcome.
As the Supreme Court noted in Washington v. Harper (1990), in light of the Constitution’s elevated protection of bodily autonomy, any compelled medical treatment must not only be necessary to protect the public but “in the [individual’s] medical interest.” This admonition was echoed in Sell v. United States (2003), where in a case involving forced administration of antipsychotic drugs to enable a criminal defendant to stand trial, the Court held that a treatment may be compelled if it is “medically appropriate, is unlikely to have side effects that may undermine the fairness of the trial and, taking account of less intrusive alternatives, is necessary to further important governmental trial‐related interests.”
In light of the clear equivalence (or superiority) of natural immunity in protection against infection and transmission, the lack of any demonstrable benefit to Covid‐recovered individuals from a full course of vaccination, and the well‐established evidence of elevated adverse effects, any failure to recognize natural immunity as qualifying under any vaccine‐mandate regulation would render that rule arbitrary and unconstitutional.
