After the federal government rewrote its Covid-19 guidelines, a cadre of lawyers, who have spent much of the past two years challenging restrictions and mandates imposed by governments and others, say the time has come for judges to make it more difficult for governors, mayors and other public health officials to claim there still remains a “rational basis” for their continued mandates.
For much of the past two years, courts in Chicago and elsewhere in the country have presided over a steady stream of legal challenges to Covid-19-related restrictions and mandates imposed by government officials and private employers alike.
And in that time, courts have largely granted wide deference to those public health rules, as judges have proven reluctant to oppose any of the judgments rendered by public health officials in managing a historic pandemic – even if those mandates may trespass on constitutional rights otherwise afforded to Americans.
Chicago Mayor Lori Lightfoot speaking during a press conference in July. Democrat Gov. J.B. Pritzker is behind Lightfoot, to her right
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But with new guidelines from the Centers for Disease Control governing isolation and quarantine, critics of vaccine mandates and other Covid-related restrictions say that wide deference to stringent executive actions should end.
“We believe that science never really did line up with the mandates being pushed by the people who claimed they were ‘following the science,’” said Mark Chenoweth, president and general counsel for the New Civil Liberties Alliance.
For the past two years, the Washington, D.C.-based NCLA has challenged numerous Covid restrictions and mandates across the country, on behalf of people who claim their rights have been trampled by overreaching government edicts.
But the changing landscape surrounding Covid-related knowledge “makes it even more difficult for them to continue to claim they’re following the science now,” Chenoweth said.
Among other changes, the new guidelines loosened testing and isolation guidelines for those who have experienced mild Covid symptoms, or who may have been exposed to others infected by Covid.
But for Covid policy critics like Chenoweth, the most significant revision may have been the CDC’s shift, for the first time, to no longer require separate masking, testing and quarantine policies for those who have not received one of the approved Covid vaccines.
Chenoweth said that change meant, for the first time, the CDC could no longer deny what Chenoweth and others have said has been obvious for some time:
While Covid vaccines may help reduce hospitalizations and cases of severe illness from Covid, the approved vaccines do not provide any more protection against infection and transmission of the coronavirus that causes Covid-19 than does naturally acquired immunity as a result of prior Covid infection.
“The only reason it might make sense to force someone to get the vaccine, is if having the vaccine stops someone else from getting the disease,” said Chenoweth.
“This is the reasoning they used to put the mandates in place. It was the whole justification for the mandates, and it’s no longer the case. And we submit it never was true.”
'Rational basis'
Since 2021, Illinois Gov. JB Pritzker, Chicago Mayor Lori Lightfoot, President Joe Biden and others have attempted to impose Covid vaccine and testing mandates on a broad swath of the workforce.
The rules have forced nurses, teachers, firefighters, police officers and other workers to choose between taking the Covid jabs or keeping their jobs.
Other mandates have been imposed on college and high school students. In Chicago, for instance, the Chicago Public Schools have required students to receive a Covid vaccine, or submit to regular testing, as a condition of participating in athletics.
Those mandates have all been met with court challenges from people who claimed the mandates trampled rights to bodily autonomy, conscience, religious freedom and due process, among others.
Federal judges have to this point determined that federal vaccine mandates are questionable, at best, and may be illegal.
However, to this point, the legal challenges at the state and local level have largely failed, as judges have sided with officials who pointed both to their so-called “police powers” to protect the public health, and to their reliance on guidance from the CDC, among other sources.
Judges have largely found that people’s rights to keep a job, attend college, or participate in activities, like high school athletics, are not considered “fundamental rights.” Therefore, the judges said, the mandates forcing people to choose between getting a vaccine or losing a job or being barred from school or activities, pass constitutional tests, so long as the governments demonstrate a so-called “rational basis” to justify their mandates.
And in such cases, the courts have largely found the governments’ interest in preventing the continued spread of Covid has been sufficient to allow them to override the rights of conscience and due process that would otherwise be enjoyed by workers and students, alike.
Further burdening the challenges, Illinois courts have specifically ruled that Covid vaccine mandates and other restrictions can be imposed as a “workplace safety” rule, no different than others workers are required to follow.
A judge never ruled on that legal reasoning. Rather, a legal challenge to the CPS policy was dismissed as moot, because the student plaintiff graduated, so the student was considered no longer affected by the policy.
To this point, judges have also largely rejected challenges to vaccine mandates that rely on mounting scientific evidence that the vaccines are, at best, no better at preventing infection or transmission of the Covid coronavirus than is naturally acquired immunity from prior infection.
In that ruling, a federal appeals panel for the first time recognized the scientific evidence concerning the efficacy of natural immunity against the Covid virus.
However, the appeals panel still allowed the mandates to remain in place, because they said workers had no fundamental right to refuse the vaccines. They further noted the plaintiffs could not demonstrate “that the benefits of vaccination on top of natural immunity eliminate a ‘conceivable basis’ for the mandates under rational basis review.”
'Not out of the woods'
Attorney Jonathan Lubin, of Skokie, who represented many of the workers involved in those lawsuits, said the government’s continued refusal to recognize the strength of natural immunity should undermine the mandates.
“The question should be: Is there a rational correlation between what the government is doing, and what it is trying to accomplish?” said Lubin. “The answer to that question, scientifically, is no.
He said scientific evidence demonstrates vaccines and naturally acquired immunity provide “essentially equivalent” protections.
To continue with the mandates, at this point, only serves to create a “bizarre segregation system,” Lubin said.
“Most people in the community have either gotten (Covid), by this point, or they just won’t, for whatever reason,” said Lubin. Keeping vaccine mandates in place now, he said, “makes no sense.”
“It’s irrational,” Lubin said.
That is an essential part of the message Chenoweth said the NCLA and others will be presenting to courts, as they continue to fight the mandates.
The NCLA, for instance, cited the new CDC guidelines in a brief they recently filed in the U.S. Fifth Circuit Court of Appeals in New Orleans. The brief was filed in support of workers suing the Biden administration over its attempt to continue enforcing a Covid vaccine mandate for federal employees.
“These vaccines are demonstrably inferior to naturally acquired immunity in terms of preventing a coronavirus infection,” the NCLA wrote in its new brief. “Even CDC now recognizes natural immunity is better and more protective than vaccines.
“This recognition (however belated) leaves no basis, let alone a ‘rational basis,’ for naturally immune employees to be force-vaccinated.”
In response to legal challenges and changes to the scientific understanding of Covid, government officials, including Pritzker, have opted to ease some of the mandates.
Chenoweth said the NCLA are hearing more anecdotes of school districts and other local governments backing off such mandates for now and the future.
“They’re not so confident anymore,” said Chenoweth. “I think folks will be much more reticent about forcing mandates on people, and particularly on those who can prove naturally acquired immunity.”
In Illinois, Pritzker, for instance, recently released firefighters and other first responders from the state’s mandates.
But the governor’s lawyers from the Illinois Attorney General’s office have not backed off their legal claims to maintain the governor’s power to impose the mandates in the first place.
And that, said Lubin, is why he and others believe courts need to address the continued support for Covid vaccine mandates among government officials.
Lubin acknowledged that mandates and restrictions have been increasingly eased as time has passed on and life has generally returned to normal.
But he said courts’ refusal to address the underlying constitutional concerns over the actions by officials like Pritzker and Lightfoot, and firmly set boundaries on the use of government power in the name of public health, mean challenges could once again fly into court.
“We’re not out of the woods on this, legally speaking,” Lubin said. “One of the main lessons we should all take from this, is we should not just allow the government to do what it did.”
And Chenoweth and his NCLA colleague, Jenin Younes, said they also hoped the courts or some other authority will step in to address the perceived authoritarian overreach, which Chenoweth said has been “destructive to the lives of tens of thousands of people” across the country.
“Even if we get a court to say, ‘Move along,’ there will still have been no real answers,” said Younes. “No one will suffer any real accountability from all of this.”