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CDC walk-back of COVID guidance vindicates legal challenges to mandates, lawyers say

Teenager studies find vaccine efficacy wanes in less than four weeks, second dose followed by "cardiovascular effects" in nearly a third.

Published: August 12, 2022 4:32pm

Updated: August 14, 2022 11:35pm

A range of recommended COVID-19 mitigations, some going back to the early pandemic, were stripped from CDC guidance Thursday, throwing K-12 and college COVID plans nationwide into disarray on the eve of a new academic year and potentially bolstering ongoing legal challenges to mandates. 

The abandoned CDC recommendations include: testing and quarantine for asymptomatic COVID-19 infectees and close contacts, the six-foot rule, and preferential treatment for vaccinated people, especially those who are "up to date" on shots.

One common mitigation is unlikely to come back regardless of the agency revision. While the CDC recommends COVID-positive people wear a "high-quality" mask for 10 days indoors, even at home and regardless of symptoms, few school districts still have mask mandates

The agency will no longer distinguish between vaccinated and unvaccinated groups in its  guidance, summarized in Morbidity and Mortality Weekly Report, because "breakthrough infections occur" and those with natural immunity "have some degree of protection against severe illness."

"We're in a stronger place today as a nation, with more tools — like vaccination, boosters, and treatments — to protect ourselves, and our communities, from severe illness from COVID-19," report author Greta Massetti said.

The CDC now acknowledges that "primary series" vaccination "provides minimal protection against infection and transmission" and boosters offer only "transient" increased protection. Earlier CDC research suggested unboosted vaccines become worse than nothing.

"This implies that mandates based on 2-dose vaccination are now useless" and the case for booster mandates is not much stronger, Yale University epidemiologist Harvey Risch wrote on his Telegram channel Friday. "This was the only potential compelling interest in vaccine mandates."

The New Civil Liberties Alliance expects that defendants in its active natural-immunity challenges to vaccine mandates will argue the lawsuits are moot because of the new CDC guidance.

"However, because we argued that their constitutional rights were already violated, and we are seeking recognition of that going forward, the courts should not dismiss the appeals (or cases still pending in lower courts) on mootness grounds," attorney Jenin Younes wrote in an email.

At least four NCLA cases are implicated, she said: against Michigan State University's employee mandate and Rhode Island's healthcare worker mandate, and class-actions for federal employees and federal contractors.

One of the clients in NCLA's dismissed Big Tech censorship lawsuit, which is seeking reinstatement, greeted the feds' belated about-face on natural immunity with scorn.

Millions of workers, students and others lost jobs, took unwanted jabs and faced exclusion "from everyday life activities and basic medical care" because of "a differentiation that the CDC now admits does not make sense," attorney Michael Senger wrote.

Attorney R. Davis Younts, who successfully represented a Navy lieutenant in a mandate challenge this spring, told Just the News the new guidance won't change military mandates "but absolutely should ... because the whole justification for denying religious accommodation [requests] is that there's no safe alternative to the vaccine." 

He said he has encouraged clients to resubmit their RARs with the argument that medical and scientific information has changed, but doesn't expect them to be approved.

"It seems like every day the FDA or the CDC or some report continues to confirm what we've been saying, that there's no reason for these shots" to be mandatory, Liberty Counsel Chairman Mat Staver told Just the News. 

He said the religious freedom legal organization was in court Wednesday for its military mandate challenge and "we'll update various different courts we're in" on the new guidance. Previous about-face statements by White House chief medical adviser Anthony Fauci and CDC Director Rochelle Walensky have helped its litigation, Staver said.

"I think this is another mile marker in the long march of incompetence from Washington bureaucrats that claims to follow 'science' yet this science has been out for well over a year and has been by the CDC and the corporations that are clearly state actors," U.S. Freedom Flyers cofounder Joshua Yoder, whose group challenged vaccine mandates for pilots, wrote in an email.

COVID mandates have caused "unimaginable unquantifiable damage," and revised guidance "will not exempt them from accountability," he said, referring to discussions with his legal team and "other brilliant citizens ... to right the ship."

The guidance finally "recognizes that the risks of COVID-19 are nothing like they were in 2020 and that most Americans have moved on with their lives," First Liberty Institute senior counsel David Hacker told Just the News.

The Department of Defense must "rescind its ill-conceived vaccine mandate or provide religious accommodation" for First Liberty's clients, which include Navy SEALs and Air Force members, in light of the CDC revision, he wrote in an email.

Ongoing research continues to question the feds' blanket COVID vaccine recommendations, especially given higher risks of side effects in demographics at low risk from COVID.

It took less than four weeks for Pfizer vaccine efficacy (VE) to start waning against symptomatic infection among Scottish and Brazilian 12-17 year-olds, according to a new study in The Lancet Infectious Diseases.

Brazilian and U.K. researchers reviewed hundreds of thousands of tests, finding protection was significantly lower during the Omicron variant wave than during the Delta wave. By day 98 after the second dose, protection dropped to 50.6% in Scotland and just 5.9% in Brazil.

"This is the medical treatment that DC schools are requiring every student to take," George Mason University law professor Todd Zywicki, an NCLA client, tweeted Thursday in sharing the study. (The City Council, not District of Columbia Public Schools, imposed the vaccine mandate.)

A new Thai study of 300 teenagers, not yet peer-reviewed, found "cardiovascular effects" in nearly a third after their second Pfizer dose, "ranging from tachycardia, palpitation, and myopericarditis," though they were "usually mild" with full recovery in two weeks.

"This is exactly the kind of study the FDA said it wanted Pfizer to do" when it approved that mRNA vaccine, Philadelphia cardiologist Anish Koka wrote in a granular review of the Thai study. 

Three children were hospitalized with myocarditis or pericarditis, and four had "markers of cardiac injury that were above normal even without overt symptoms" — amazing findings for a study this small, he wrote. 

"I can assure you ... there are no cardiologists who want to see their child have a cardiac troponin that is 2x normal or 40x normal after administration of some therapeutic," Koka said. "Sudden cardiac death in young athletes is obviously a fearsome complication that is very real and it is likely some proportion of sudden cardiac death is from subclinical myocarditis."

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