The possibility of natural immunity to COVID acquired by prior infection shouldn’t allow a group of Naperville firefighters to escape COVID vaccine and testing mandates, lawyers for Gov. JB Pritzker has argued in new court filings.
Further, the governor asserted state and local COVID vaccine and testing orders don’t violate the firefighters’ constitutional rights, as they claim.
“Even if all of the Plaintiffs (Naperville firefighters) did previously contract COVID-19, … the level of immunity can vary based on viral load and the severity of the infection,” lawyers for Pritzker wrote. “If Plaintiffs’ infections were early in the pandemic, then their immunity may have waned and vaccination is necessary to boost their immune response. If their cases were mild, then they may not have any immunity at all.
“Considering the nature of Plaintiffs’ jobs, they not only are at a higher risk of either infection or reinfection, but there is a higher risk that they will spread the disease as well.”
The firefighter paramedics filed suit in late September. They are represented by attorney Jonathan Lubin, of Skokie.
The complaint challenges mandates imposed in August by Pritzker and the city of Naperville. The city specifically required all employees in the Naperville Fire Department to receive a full does of a COVID vaccine, or submit to regular weekly testing. Those who do not abide by either of the mandates would not be allowed to work, and could be placed on administrative leave without pay, according to the complaint.
However, the paramedics asserted the mandates violate their “fundamental rights” to both bodily autonomy and due process, denying them the opportunity to even object to the mandates in any significant way.
The complaint further noted at no point in the pandemic, until now, has the city or state required firefighters or paramedics to submit to regular testing, even when COVID infections and deaths were far worse.
The testing mandate was simply included as a stick with which to punish “those who assert their fundamental rights” to bodily autonomy, the complaint said.
And, they further argued, the vaccine mandate falls short legally because it makes no allowance for documented natural immunity.
“Given that many paramedics have already caught and recovered from COVID-19, singling out those who are not vaccinated against COVID-19 is neither narrowly tailored to nor (rationally) related to forwarding the interest of preserving the life and health of Illinois’ citizens,” the paramedics complaint says.
In response, however, the Pritzker administration argues the firefighters shouldn’t be allowed to cite natural immunity, because the state lawyers argue public health scientists believe immunity from vaccination is more durable than that acquired from prior infection.
They claim public health officials are skeptical of the results of studies relied upon by the plaintiffs showing natural immunity is at least equal to the immunity acquired from the three COVID vaccines in use in the U.S.
The state’s filing particularly assails the observations from a widely publicized study from Israel, cited by the firefighters.
That study is “flawed” because it “failed to take into account how the timing of immunity affects re-infection” and “did not control for when individuals were tested and cases could have gone undetected if the participant did not seek testing or treatment.”
Further, the study allegedly should be ignored because it doesn’t measure naturally acquired immunity beyond eight months following recovery from COVID.
The state argued other studies conducted by the Centers for Disease Control and Prevention and other U.S. researchers question immunity that may be acquired by people who may have had “mild cases” of COVID.
And, the state said, the paramedics who filed suit have yet to demonstrate they have acquired the natural immunity they claim protects them as well as a vaccine.
The state’s filing also took aim at the firefighters’ claims to a right to “bodily autonomy.”
While the U.S. Supreme Court’s historic decision in Roe v Wade appeared to establish such a right, the Pritzker administration argued such a right is not “absolute,” and can be violated by the state to promote public health goals.
Further, the state argued the state’s ability to force people to take vaccines or submit to testing is well-established under the Supreme Court’s oft-cited 1905 decision in Jacobson v Massachusetts, and affirmed by recent decisions from the U.S. Seventh Circuit Court of Appeals in Chicago.
They pointed particularly to the Seventh Circuit’s July 2021 decision in Klaassen v Trustees of Indiana University, in which the appeals judges declared students can’t avoid that university’s COVID mandate regime, finding testing mandates especially “not constitutionally problematic.”
Even if the courts were to declare Pritzker violated their rights to equal protection by singling out the unvaccinated for compulsory COVID testing, the Pritzker administration said the governor could simply sidestep such a ruling by requiring all paramedics throughout the state, regardless of vaccination status, to submit to such weekly testing.
All told, the state said, the so-called “balance of hardships” should favor the state’s ability to force the Naperville firefighter paramedics to get vaccinated, submit to weekly testing, or potentially lose their jobs.
“… The balance of the hardships clearly favors the State given its effort to stem the spread of a pandemic that has lasted nearly two years,” the state’s lawyers wrote. “This is especially true in light of Plaintiffs’ jobs as frontline healthcare workers who are at a higher risk of contracting the disease as well as spreading it.”
The state and city of Naperville both asked the court to reject the firefighters’ attempt to secure court orders blocking enforcement of the COVID vaccine and testing mandates.
In a brief order, U.S. District Judge John Robert Blakey acknowledged briefs filed by the state and local governments opposing the firefighters’ complaint.
However, the judge also noted the responses fall short, at this point, as they address only challenges addressing the firefighters’ rights to due process.
“The complaint, however, is not so limited,” the judge wrote, noting the plaintiffs also raised other constitutional claims, including under the First Amendment.
The judge ordered both sides to file further arguments addressing those other claims, from now until Oct. 27.