It would be irrational, legally indefensible and contrary to the public interest for government to mandate vaccines absent any evidence that the vaccines are effective in stopping the spread of the pathogen they target. Yet that’s exactly what’s happening here.
The government's mandates came out when the concern was Delta, not Omicron, and therefore its "findings are now obsolete."
The Supreme Court held in Jacobson v. Massachusetts (1905) that the right to refuse medical treatment could be overcome when society needs to curb the spread of a contagious epidemic. At Friday’s oral argument, all the justices acknowledged that the federal mandates rest on this rationale.
But mandating a vaccine to stop the spread of a disease requires evidence that the vaccines will prevent infection or transmission (rather than efficacy against severe outcomes like hospitalization or death).... For Omicron, there is as yet no such evidence.
The little data we have suggest the opposite. One preprint study found that after 30 days the Moderna and Pfizer vaccines no longer had any statistically significant positive effect against Omicron infection, and after 90 days, their effect went negative—i.e., vaccinated people were more susceptible to Omicron infection....
According to the CDC, the overwhelming majority of symptomatic U.S. Omicron cases have been mild. The best policy might be to let Omicron run its course while protecting the most vulnerable, naturally immunizing the vast majority against Covid through infection by a relatively benign strain....
It is axiomatic in U.S. law that courts don’t uphold agency directives when the agency has entirely failed to consider facts crucial to the problem....
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