In reading (until my eyes crossed) the legal arguments pro and con in the various State suits against the Biden vaccine mandate, I did not see any material discussion about how the mandate was medically unwise, improper, or fattening. A pantheon of legal minds quite effectively showed how calling it an “Emergency” rule was a legal travesty. They came within speaking distance of medical issues when addressing the difference between office workers in close proximity and truckers working alone for many hours. But at no time did they say anything about the medical (in)advisability of getting the Fauci Ouchy in general.
OSHA is mandated by law to promote “Safety” and “Health.” Hard hats on construction sites fill that bill rather well, as do a host of other obvious precautions that unscrupulous employers might try to skirt. But the mandate does nothing of the sort. It asserts a “grave danger of COVID-19 in the workplace,” and that vaccination is a “National Consensus Standard.” It presents no data to support these claims, treating them as unquestioned facts.
The Fifth Circuit Court of Appeals granted Texas’ petition for an injunction based on the “virtual certainty” that Texas will prevail at trial because the Mandate is:
“a one-size fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.”
It is not a “new hazard.”
An “airborne virus [is] beyond the purview of an OSHA ETS in the first place.”
“the Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power.”
This last item includes a reference to the 1905 Jacobsen decision. That story is important. Henning Jacobsen refused to be vaccinated for smallpox because he and his son had had extremely bad reactions to smallpox vaccinations in Sweden. The State of Massachusetts said that he must be vaccinated anyway. The Supreme Court agreed.
Jacobsen resisted based on a claim of personal freedom. He apparently did not try to point out that he had already been vaccinated elsewhere. SCOTUS denied his argument on the basis that the State of Massachusetts was empowered to protect its other citizens from Jacobsen should he become ill. Hence, he should submit to vaccination. A State-level order was lawful as long as it did not “go so far beyond what was reasonably required for the safety of the public.” Thus, it had to meet two standards. It was within the Tenth Amendment power of Massachusetts, not the Federal Government. And… it must serve the public safety.
Going to the issue of a “National Consensus,” it’s difficult to avoid a “WTF?!?” response if you are at all well informed. The very fact that Facebook and Twitter expend great effort to censor discussion of the evidence shows that there is no consensus. All we need is to bring John Iaonnidis, Scott Atlas, and myriads of other qualified experts into the conversation. Their data-driven opinions on vaccination, lockdowns and other COVID efforts are in stark contrast to the Fauci party line, putting the lie to the presence of any “consensus.” We might also note that the mere existence of the Texas and Florida lawsuits contesting the mandate imply the absence of consensus.
The second necessary component is that vaccination must be “required for the safety of the public.” In the Jacobsen case, it was clear that a person with smallpox could pass the disease on, but a well person could not. Thus, there was a clear public health benefit to having Jacobsen vaccinated. COVID-19 is a vastly different disease.
Smallpox is spread by contact. COVID-19 is airborne. This difference explains why fully vaccinated people are just as likely to become infected and spread the disease as the unvaccinated. Vaccine-mediated immunity, if it exists in COVID-19, is on the bloodstream side of the alveolar basement membrane. But the first level of infection is on the airside of that membrane, and never “sees” the antibodies or T-cells that prevent illness. That means that the virus can enter cells, replicate, and shed into the exhaled air to infect the next victim. Your immune status, whether vaccinated, unvaccinated, recovered COVID, or something else, is simply irrelevant.
This means two things. First, since Jacobsen addresses a state power, it cannot be applied to benefit the Federal government’s case. And, since Jacobsen addresses a public health benefit not provided by the COVID-19 vaccine, it is no precedent at all. Vaccination provides zero public health benefits.
Going further, the mandate states that if a person refuses the shot, he should mask and be tested regularly. Unfortunately for the government’s case, we now have good data showing that there is no support for the proposition that public masking has any effect on the transmission of COVID-19. And the CDC decertified the RT-PCR test in July since it has a very high error rate. Both of the supposed alternatives are therefore fatally flawed.
The Fifth Circuit was quite adamant that the odds against the mandate surviving its present legal challenges are monumental. But that doesn’t mean that the Biden Administration won’t try again. They can write and rewrite again and again in an attempt to correct legal defects and pass legal muster. It is incumbent on our side to close as many of those doors as possible as quickly as we can. Just because we have enough legal precedent on our side to win this moment’s battle isn’t enough. We have to cut them off at the impasse before they can break out in a different direction.
The medical and scientific questions presented here are germane to the legal arguments. Others, such as the high efficacy of treatments such as HCQ and Ivermectin could be added. And there’s no reason not to pile on with the incredibly low mortality rate for young or treated patients. Those arguments would annihilate any medical “emergency” claim.
We can’t do “just enough” to win. We have to obliterate any opposition. We must amend pleadings with medical information. Now is the time. We must strike while the iron is hot.
Ted Noel MD is a retired Anesthesiologist/Intensivist who posts on social media as DoctorTed and @vidzette.