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Vaccine Mandates FAQs

You don’t have to do anything to “join” the class action, because the whole point of a class action is for a few plaintiffs that we do know the identities of to represent the interests of a larger number of plaintiffs whose identities we don’t yet know. NCLA has filed a class action lawsuit representing a small number of these named federal employees, but if the court certifies the class (that is, allows the class action to proceed), then our clients will represent *all* federal employees who are in the same position. The court still has to agree to this, but once that happens the class becomes certified and the results of the lawsuit will apply to anyone who is in the class.

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NCLA is suing on behalf of “all federal employees outside the uniformed services who have naturally acquired immunity to COVID and who do not wish to take the vaccine.” If you are not a federal employee, you cannot be a member of the class. If you are in the military (uniformed services), then you cannot be a member of the class. If you have not gotten an antibody test, then you cannot be a member of the class because you cannot demonstrate that you have naturally acquired immunity. So, if you are a federal employee and not a member of the military (uniformed services) and you have recovered from COVID in the past, all you need to do in order to be eligible to be a member of the class is to get an antibody (antigen) test that shows you have natural immunity. That’s it.

Not at this time. The law with regard to military personnel is different from the law for civilian federal employees and our current efforts are focused on the laws governing those civilian employees.

No. While NCLA strongly supports organizations that are fighting against the mandates on the grounds that they should offer religious exemptions, we have chosen to focus on the exemptions for those with demonstrated natural immunity. If you are interested in learning more about how vaccine mandates might violate your individual right to religious liberty, please check out the resources provided by our allies at Becket and First Liberty.

NCLA is very interested in challenging laws that require businesses to check the vaccine status of their customers. New York City put such a law in place, but it can be difficult to challenge a law like that because any business that does so paints a target on its back for retaliation by the government. We are willing to represent businesses who want to stand up to tyranny, but we will never judge any business owner who simply cannot afford to attract the ire of powerful regulators. If you or someone you know owns a business subject to such a mandate and you want to stand up for your rights and the rights of your fellow business owners, please contact NCLA using the form to the right.

No, not at all. Vaccines are a vital part of modern medicine and the development of COVID-19 vaccines in such an incredibly abbreviated time frame thanks to Operation Warp Speed was nothing short of miraculous and a testament to American ingenuity and innovation. Many of us at NCLA are vaccinated. Many of us have also had COVID-19 and retain natural immunity as a result. Some of us fall into both categories. We are bullish on the benefits of immunity (however acquired) and encourage everyone to consider the benefits and risks of these experimental vaccines and to make the decision that is right for them.

No, we do not oppose all vaccine mandates. Just the ones that are unconstitutional or otherwise illegal.

We oppose blanket mandates that do not contain constitutionally required exemptions, such as those for people who have demonstrated natural immunity.

We oppose illegal mandates for vaccines that are still experimental or have otherwise not received full FDA approval.

We oppose mandates issued by an executive or agency, neither of whom possesses the constitutional power to legislate.

We oppose mandates issued via press release, where mere suggestion that the federal government is going to issue a mandate creates the practical effect of a mandate, but without a specific act that can be challenged in a court of law.

We oppose mandates where private employers are coerced into doing the government’s dirty work, either by means of questionable OSHA guidance or by using the federal government’s role as a customer to turn a sizable percentage of the US economy into the role of “government contractors” whose policies can be controlled by executive order.

We oppose mandates issued by federal executive decree that contradict mandate bans adopted by individual states.

That’s right. NCLA team members, including Executive Director & General Counsel Mark Chenoweth and Litigation Counsel Jenin Younes, have both explained our position in a variety of interviews.

It’s the protection you get from having had the virus previously. If you have already contracted and fully recovered from COVID-19, then you likely have what is called “natural immunity” to the virus. As the Centers for Disease Control (CDC) explains more fully here, natural immunity results when exposure to a disease organism triggers your immune system to produce antibodies to that disease. Contracting the disease and then recovering from it enables your body to fight it more effectively in the future.

For example, we have filed multiple suits on behalf government employees with naturally-acquired immunity to COVID-19, arguing they should not be forced to undergo an injection they do not want just so they can obtain whatever additional protection vaccinated immunity might provide. For a person in that situation, natural immunity renders vaccine immunity medically unnecessary.

Vaccine-induced immunity is science’s way of trying to copy the results of naturally acquired immunity. In fact, the level of antibodies in the blood of those who have natural immunity was initially the benchmark used in clinical trials to determine how well the vaccines worked. Vaccination happens by injecting subjects with a killed or weakened form of the disease organism. Basically, the vaccine tries to simulate the experience of having contracted the disease, but without all the symptoms.

No matter how immunity was acquired, either from being vaccinated or having had the disease, the immune system of a person who has this kind of “active” immunity will recognize the disease if it comes into contact with it in the future, and will immediately produce the antibodies needed to fight it. Active immunity is long-lasting, and sometimes life-long.

Yes. Substantial research establishes that natural immunity to COVID-19 is at least as robust and durable as that attained through the most effective vaccines, and possibly more so. For example, a recent epidemiological study from Israel demonstrated that naturally immune persons are 27 times more protected from subsequent infection by COVID-19 than people who had taken the Pfizer–BioNTech vaccine. And the results are even more significant when compared to less effective vaccines like the Sinovac, Sinopharm, and Janssen vaccines, some of which have efficacy rates as low as 50%.

A different study conducted at a clinic in Cleveland, OH observed 52,238 employees over five months, about half of whom remained unvaccinated throughout the duration of the study. Although some (.07%) vaccinated employees caught breakthrough COVID infections, not a single previously-infected individual got reinfected.

Studies further indicate that naturally-acquired immunity is significantly longer-lasting than that acquired through the best vaccines.

No matter how immunity was acquired, either from being vaccinated or having had the disease, the immune system of a person who has this kind of “active” immunity will recognize the disease if it comes into contact with it in the future, and will immediately produce the antibodies needed to fight it. Active immunity is long-lasting, and sometimes life-long.

Get tested, and see a doctor, if possible. A SARS-CoV-2 antibody test can confirm that your body still has robust natural immunity conferred by those antibodies. NCLA represents several clients whose doctors determined that the existence of naturally-acquired antibodies rendered a vaccine medically unnecessary for them. Your doctor might reach the same conclusion.

Put simply, neither the CDC nor the Biden Administration were following the science.

Studies suggest that more than half of the US population (>115 million people) have been infected by COVID at least once, and many of them more than once. Most of the available studies confirm that natural immunity is stronger and longer lasting than vaccine-induced immunity. Before admitting it had been wrong, the CDC cited a study for the proposition that vaccine immunity was much stronger than natural immunity. But that study did not measure actual say that. Instead, the study looked only at people who got hospitalized for respiratory problems and found that 5% of those people who had been vaccinated tested positive for COVID, compared to 9% of people with natural immunity and no vaccination.

Thus, the CDC study might seem to suggest that of the people who get sick enough to go to the hospital with respiratory symptoms, a higher percentage of them will come from those who are naturally immune. But the paper did not report how many vaccinated and naturally immune people there are in the population who were at risk for hospitalization with respiratory symptoms. Without that number, there is no way to tell what the study says about the comparative efficacy of vaccines vs. natural immunity.

As Martin Kulldorff of the Brownstone Institute explained, “There is both a relationship between being vaccinated/recovered and Covid hospitalization and a relationship between being vaccinated/recovered and non-Covid hospitalization. Rather than evaluate the first one, which is of intense interest for health policy, the CDC study evaluates the contrast between the two, which is not particularly interesting.” Moreover, Kulldorff points out that frail people are more likely to be vaccinated, while active people are more likely to have been Covid-recovered, and neither of those is properly adjusted for in the study. There are several other issues with the CDC study. Check out the Kulldorff’s thorough analysis of that study here.

In the most well-known study from Israel, the vaccinated were 27 times more likely to get symptomatic COVID than the unvaccinated who had recovered from a prior infection. But the Israel study is just one brick in a veritable wall of evidence supporting the power of natural immunity.

No! At NCLA, we always answer that question the same way! Vaccine mandates are no different. The United States Constitution limits the government’s ability to force citizens to take a vaccine. Broadly speaking, your rights to bodily autonomy and to decline medical treatment are guaranteed under the Ninth and Fourteenth Amendments.

Jacobson is over 100 years old and was decided at a time when constitutional protections for fundamental rights were poorly understood and rarely enforced by the Supreme Court. But even on its own merits, the case cuts against the current vaccine mandates.

Back in 1905, the Supreme Court upheld a state’s legislatively-enacted mandate that fined individuals $5 (about $100 today) if they refused to take the smallpox vaccine. Mr. Jacobson and his son didn’t want to take the smallpox vaccine because they had experienced terrible reactions to previous vaccines. The Court held that a state could enforce its vaccine mandate, because people’s “liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

Some have used Jacobson to justify the imposition of the current COVID-19 vaccine mandates. But there are several important differences between the situation in Jacobson and the one we face today.

Smallpox was different. The vaccine in Jacobson was for smallpox, a disease that could kill up to 30% of those who contracted it, and leave even those who survived with debilitating scars on their faces, arms, and legs. COVID kills almost no one under 50 and only about .005% of people in their 50s and 60s. In short, smallpox was 6,000 times more deadly than COVID. Source: https://www.nature.com/articles/d41586-020-02483-2

It was a $5 fine. Even with a 30% mortality rate, the Court stopped short of allowing the state to force any person to get vaccinated, holding that the state could issue a fine, but it “is not in their power to vaccinate him by force.” In other words, charging people a fine amounting to $150 dollars by today’s standards was as far as the Constitution would allow in terms of “reasonable regulations” to fight one of the deadliest diseases the world had ever seen.

But the current mandates are costing its victims much more than $150. In many case, people are losing their jobs, their livelihoods. Others, like those in New York City, are being virtually excluded from public life by means of an invidious vaccine passport program that denies them access to the places where live our public lives.

There was no antibody test in 1905. The Court determined that a broadly applicable vaccine mandate was reasonable, but keep in mind that in 1905 there was no antibody test or any other method for demonstrating natural immunity. Diagnostic antibody testing would not be invented until the 1970’s, so there simply wasn’t any way to limit the vaccine mandate to only those people who lacked immunity. Now, of course, there is, which makes the failure to allow exemptions for the naturally immune inexcusable.

The 1905 mandate was legislated. Unlike the law in Jacobson, the current blanket mandates are the product of an executive edict. Congress has yet to pass any law on vaccine mandates, despite having had nearly a year to do so. There wasn’t even a notice period giving citizens the opportunity to comment on a proposed regulation, as is required when an executive agency issues a regulation without the involvement of the legislature.

Massachusetts had broad power that the federal government lacked. Jacobson involved a state regulation that the Supreme Court ruled was a reasonable use of its police power. But the federal government has no commensurate police power. When lawyers use the term “police power”, they mean the fundamental ability of government to enact laws to coerce people for the public good. So, a noise ordinance that takes effect in your neighborhood after 9pm is an example of the state’s use of its police power.

The Tenth Amendment to the US Constitution is very clear about who gets what powers: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” That means the federal government can act only where the Constitution specifically says so. This is why murder and robbery and assault are not federal crimes, unless they happen on federal property or to a federal official or in some other way that specifically implicates the federal government. This is a central tenant to the system of federalism, which the U.S. Constitution embodies.

If you’re wondering why President Biden decided to use an executive edict on federal contractors in order to implement the vaccine mandate, now you know. The federal government has no general police power, so it is trying to accomplish the same thing by promulgating a rule that will apply to millions and millions of Americans simply because their employers happen to do business with the federal government.

Constitutional law has changed since 1905. Jacobson was decided almost 30 years before the the New Deal drastically expanded the scope of the federal government and, along with it, the power of the federal government to infringe our fundamental civil liberties. But even before the New Deal, beginning as early as 1923 and certainly continuing through its recent decisions, the Supreme Court has broadly read the “liberty” guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, and termination of medical treatment.

Yes, it does. The Supreme Court has repeatedly recognized that the Ninth and Fourteenth Amendments to the U.S. Constitution protect an individual’s right to privacy and that right extends to unwanted medical procedures. The Court has held, for example, that a “forcible injection … into a nonconsenting person’s body represents a substantial interference with that person’s liberty[.]”

This right is not limited to injections. The Supreme Court has also held that the right to “refus[e] unwanted medical care” is “so rooted in our history, tradition, and practice as to require special protection under the Fourteenth Amendment.” As the Supreme Court explains it, this is all part of the “well-established, traditional rights to bodily integrity and freedom from unwanted touching.”

Obviously, our freedom is not absolute. Under certain circumstances, the government can take our life, our liberty, and our property, despite the protections afforded by the Constitution and the Bill of Rights. That can include forced vaccination in some cases. But the government cannot do this any time it wants or for any reason it pleases and using whatever method it feels like. No, the Constitution sets a very high bar for this kind of coercive government infringement of our rights. As the Supreme Court has held, attempts by the government to take away our most fundamental civil liberties “will be upheld only when they are narrowly tailored to a compelling governmental interest.”

Setting aside the legalese for a moment, this means that the government cannot violate your right NOT to be forcibly vaccinated unless it can show it has a very good reason and is using a method that doesn’t violate our rights any more than necessary to achieve its purpose.

Exactly. The government cannot simply claim “people should get vaccinated because vaccination is good.” That is circular logic. Why do people get vaccinated? To acquire immunity! What is the compelling public health interest, if not to make sure people have the antibodies necessary to fight off COVID-19, if and when they come into contact with the virus?

But the naturally immune already have those antibodies, and in stronger amounts and for longer periods than those provided by many, if not most, of the currently available vaccines. Put simply, there is no compelling interest in providing vaccine immunity to those who already have a stronger, more robust level of immunity from prior exposure to the virus.

No. Any blanket mandate that does not provide an exemption for those with natural immunity is, by definition, over-inclusive – the very opposite of narrowly tailored. A government mandate could easily provide people with an exemption for those who can demonstrate natural immunity (something that wasn’t possible in 1905), and any mandate that fails to do so violates the Constitution.

Not only can the government offer such an exemption, but it has already done so in other contexts. For example, the United States requires everyone, including its citizens, to provide proof of a negative COVID-19 test before returning to the country from abroad. Documentation of recovery suffices as a substitute for such a test, but proof of vaccination does not.

The European Union is not protected by a constitution as rigorous as ours, but it recognizes a record of previous infection as a substitute for any vaccine passport requirements. Even France’s controversial new restrictive mandate on the ability to participate in daily life focuses on a person’s immunity rather than their vaccine status—treating natural immunity and vaccine immunity equally.

Yes, but unlike the blanket vaccine mandates issued for COVID-19, the mandates applied to school children mostly include exemptions for demonstrated natural immunity. These vaccines have been around for decades and the medical risks are well-documented. But as safe and well-understood as they are, they still provide exemptions for school children who can demonstrate existing immunity. In some cases that exemption is part of a catch-all medical exemption that requires a doctor’s note, and in other cases the exemption is explicitly stated. Michigan, for example, allows an exemption for measles to anyone who can show “a laboratory finding of measles immunity,” and offers similar exemptions for a broad range of other vaccine requirements, including mumps, rubella, and hepatitis B.

Those vaccination programs go even further in most cases, with 47 states permitting vaccine exemptions on religious grounds (more on that below) and 18 states allowing exemptions for personal or philosophical reasons. So, those mandates are much more narrowly drawn than the federal government’s basket COVID-19 mandate, seeking to infringe only as much as is absolutely necessary on our most basic constitutional rights.

Emergency Use Authorization (EUA) is a mechanism that lets the FDA approve the use of medical innovations, including vaccines, during public health emergencies, like COVID. The idea behind this mechanism is simple: for some people the risk posed by a new drug is less than the risk of the disease it is meant to treat and in a public health emergency, the government should get out of the way and let those willing to take the risk do so.

But there are strict rules for any treatment approved under an EUA. First, public and private entities that wish to deploy such vaccines must get informed informed consent. That is, individuals must be informed of the fact that FDA “has authorized the emergency use of the product“ and must be told of “the significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are unknown.” Perhaps most importantly, the EUA provisions in the FDA Act require that vaccine recipients be informed of “the option to accept or refuse” the product.

Unlike other federal employees, federal law authorizes the Commander-in-Chief to force-vaccinate members of the military with an EUA vaccine.

No. The term “public company” in that context refers to those companies whose stock is traded on a public exchange, unlike “private companies” whose stock cannot be purchased by just anyone. But when we use use the term “public” to refer to employers, like public universities, who are partially funded by the government, we call them “public” employers. By contrast, a “private” employer is one who is not funded or controlled by the government.

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