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Fauci reconsideration of natural immunity used against Michigan State COVID vaccine mandate

The "CDC appears to have embarked on the beginning of a journey toward recognizing the scientific fact of naturally acquired immunity," argues a brief in legal challenge to the university's policy.

Published: September 17, 2021 4:08pm

Updated: September 19, 2021 1:28am

In her ongoing legal challenge to Michigan State University's COVID-19 vaccine mandate on the basis of natural immunity, employee Jeanna Norris is counting on Anthony Fauci to make her case.

President Biden's chief medical advisor, the longtime director of the National Institute of Allergy and Infectious Diseases, makes an appearance in her Sept. 15 filing for Fauci's difficulty explaining why recovered individuals such as Norris need vaccines.

Appearing on CNN Sept. 9, Fauci admitted he had no "firm answer" to chief medical correspondent Sanjay Gupta's question about how he'd convince naturally immune people to get vaccinated. 

Gupta cited a recent Israeli study, not yet peer-reviewed, that found natural immunity provided longer and better protection against the Delta variant of COVID compared to the two-dose BioNTech vaccine used in Israel. Fauci claimed the paper didn't answer "what's the durability [of recovery] compared to the durability of a vaccine?"

Fauci's statements also provided fodder for the Republican National Committee. It released an ad Thursday contrasting his earlier opposition to federal vaccine mandates — in one statement, calling them "unenforceable and not appropriate" — with the Biden administration's new mandates on federal workers and large businesses.

Along with former FDA Commissioner Scott Gottlieb, Fauci has "conceded that naturally acquired immunity should be part of any vaccine-mandate policy," Norris says in the reply brief, which is seeking a preliminary injunction against MSU's policy at a Sept. 22 hearing.

Gottlieb has said for at least two months that natural immunity has a role to play, but like Fauci questions how long it lasts and supports across-the-board vaccination regardless of risk level for COVID.

"Just yesterday the CDC appears to have embarked on the beginning of a journey toward recognizing the scientific fact of naturally acquired immunity," the brief says. It cited a CDC tweet that told people who had COVID in the past three months not to get tested if they were exposed again, unless they have "new symptoms."

Tweet URL

'Blind reliance'

Norris has an uphill climb in the litigation, which is seeking class-action status, having failed to convince a court to issue a temporary restraining order against the policy last month. 

U.S. District Judge Paul Maloney ruled she was unlikely to prevail, citing Supreme Court Justice Amy Coney Barrett's refusal to block an Indiana University vaccine mandate and the 1905 Jacobson precedent that upheld mandatory vaccination as a "valid exercise of ... police power."

Her lawyers at the New Civil Liberties Alliance (NCLA) are asking his permission to file a reply to MSU's response nearly twice as long as the court allows.

The nearly 8,100 words are needed to give Judge Maloney "the most comprehensive analysis of the legal and medical issues involved," according to their "motion to exceed word limit" accompanying the brief.

The court is in "largely uncharted territory here, addressing unique questions of first impression" such as MSU's authority to "assume police powers not granted by statute ... as well as complicated scientific issues." 

The Jacobson precedent is inapplicable to MSU's mandate, the brief argues, because in that case the Supreme Court considered a Massachusetts law — the product of "legislative action" — with a one-time fine and "no ability to demonstrate natural immunity." 

While the university insists vaccine mandates are subject to the Supreme Court standard of review known as "rational basis," NCLA argues for "strict scrutiny." Jacobson was decided before the high court adopted its "tiers of scrutiny" and has been followed by "115 years of Supreme Court precedent recognizing and expanding constitutional rights to bodily integrity." 

The brief accuses the university of "blind reliance on federal guidance documents" issued by the CDC and Department of Education, whose lack of notice-and-comment rulemaking makes them nonbinding and thus unreviewable by courts. 

The CDC in particular has demonstrated "ineptitude throughout the pandemic," it says, pointing to a Wall Street Journal op-ed by Johns Hopkins University medical professor Marty Makary, also editor in chief of MedPage Today.

"Policy makers and public health leaders, and the media voices that parrot them, are inexplicably sticking to their original hypothesis that natural immunity is fleeting, even as at least 15 studies show it lasts," Makary wrote, calling the Israeli study "the most powerful and scientifically rigorous study on the subject to date."

The CDC's reliance on one study from Kentucky to show the superiority of vaccine-induced immunity is also suspicious, given that the study only reviewed data from a brief two-month window and the CDC had data from all 50 states, according to Makary. "Was Kentucky the only state that produced the desired result?" he challenged.

MSU resorts to arguing that its vaccine mandate is justified by "practical considerations" in avoiding the alternative: close monitoring of all COVID infections and "periodic antibody testing" to determine when declining levels justify immunization.

Yet it would have to do this anyway under the emerging science of waning immunity from vaccination, the brief contends, arguing that the university, simply assumes "immunity achieved through WHO-approved vaccines is long-lasting while assuming — based on no science whatsoever — that natural immunity evaporates rapidly."

MSU is also out of step with its peers and other institutions in considering "immunological consequences of natural immunity," the brief says, but doesn't name any.

NCLA spokesperson Will Gale told Just the News they were referring to Kettering Health in Ohio and Spectrum Health in Michigan, which accept "a history of COVID-recovery and acquired antibody immunity" in lieu of vaccines. 

So does the University of Chicago, but it's limited: Students can get a 90-day exemption after positive tests, and in "limited circumstances" may request "modification" to the 90-day exemption on a case by case basis. 

The University of California system and Louisiana State have the same 90-day windows.

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