Six Oregon workers with ‘natural immunity’ to COVID-19 sue to block shot mandate

Oregon Gov. Kate Brown sits in a chair as a doctor administers the COVID vaccine.

Gov. Kate Brown, shown here receiving the Johnson & Johnson COVID-19 vaccine at a rural health clinic in March, adopted mandates for other state workers, school employees and health sector workers to get vaccinated.Image courtesy of the Office of Governor Brown

Six Oregon workers subject to the state’s COVID-19 vaccine mandates are asking a federal judge to require Oregon to carve out an exception for people like them who have acquired some degree of natural immunity after they got sick with the virus.

They contend in a lawsuit filed Thursday in U.S. District Court in Eugene that the state must more narrowly tailor its school employee, healthcare worker and state government employee vaccination mandates to exempt workers who already have some immunity against the virus because they contracted and recovered from it.

The workers say in their lawsuit that the state vaccination rules, which Gov. Kate Brown adopted last month, force workers like them “who have robust natural immunity, to choose between their health, their personal autonomy, and their careers.”

To the employees, getting vaccinated “would involve more risks than benefits” and they are “exceedingly unlikely” to pass the virus to others, they wrote.

In fact, unvaccinated people who have recovered from a COVID-19 infection are more than twice as likely to catch the virus a second time as fully vaccinated people who were previously infected, the CDC reported last month, based on a study of nearly 750 COVID patients in Kentucky.

In the lawsuit challenging the vaccine requirement, a corrections officer from Malheur County who works in a state prison said that his doctor “has advised him that it is medically unnecessary to obtain the COVID-19 vaccination, and that his decision not to get the vaccine is medically advisable.” The lawsuit did not name the doctor and a Freedom Foundation lawyer was not immediately able to provide that information.

The five other plaintiffs are an EMT from Aurora, an office manager at an orthodontics practice in Klamath Falls, a bus driver for the Beaverton School District, a corrections officer at a state prison who lives across the border in Idaho and a special agent in charge of an Oregon Department of Justice investigatory unit who is from Clackamas County.

Oregon’s vaccination mandates require school districts and health sector employers to verify all employees who don’t qualify for a religious or medical exemption are vaccinated by Oct. 18 or face daily fines. State workers have until that date to provide proof they are vaccinated. The state specifically stated that proof of history of COVID infection does not qualify employees for exemptions, according to the lawsuit.

The employees are represented in the case by the Freedom Foundation, a nonprofit tied to conservative and libertarian billionaires that espouses libertarian causes and focuses its work in Oregon on discouraging public employee union membership. Separately, those same unions are also pushing the governor to approve broader exemptions to state employees’ vaccination mandate. After predicting in early August the conditions for those broader exemptions could be resolved in a week, SEIU 503 communications director Ben Morris wrote in an email Friday that the union is now merely “confident we will reach an agreement well before the October 18 deadline.”

Through a spokesperson, the governor declined to comment on the lawsuit.

The lawsuit offers scant scientific evidence to back up the workers’ concerns about getting vaccinated.

Studies in recent months have shown that “hybrid immunity,” when people who were infected with COVID-19 later get a shot, can lead people to produce a very powerful immune response, NPR reported this week. Some recent articles have referred to this phenomenon as “superhuman immunity.”

At the same time, there is no evidence that people who had COVID are at higher risk for side effects from vaccines, according to FactCheck.org. The fact checking site noted that people’s immune systems usually require “repeated exposure to get protection over time.”

Still, there have been unsubstantiated claims circulating that people who recovered from COVID would be at risk of serious health effects if they get the shot. And the six Oregonians suing to block parts of the state’s vaccinate mandates cite some of that information in their lawsuit. For example, they refer three times to warnings by Dr. Hooman Noorchashm, a former assistant professor of surgery at the University of Pennsylvania School of Medicine. Noorchashm has admitted his warnings are based on “prognostication,” not actual scientific studies.

The plaintiffs also cited a recent review of existing research on whether people could experience serious side effects if they get vaccinated after contracting COVID. But far from establishing a connection between vaccines and adverse health effects, the article’s authors only concluded that “we cannot exclude the possibility …”

Another research article the state workers cited, published in the New England Journal of Medicine in August, did report a very small increase in heart inflammation cases among people who got vaccinated: 1 to 5 per 100,000 people. However, the researchers noted a larger increase in heart inflammation or myocarditis among patients who contracted COVID: 11 per 100,000, as Reuters reported.

As for the legality of the state mandates, the six plaintiffs argue that they violate their constitutional rights to privacy and liberty in the Ninth and 14th Amendments to the U.S. Constitution.

The lawsuit does not mention the 1905 U.S. Supreme Court public health law case Jacobson v. Massachusetts, in which the court ruled in favor of the city of Cambridge on a smallpox vaccination mandate it adopted during an epidemic. Plaintiff Henning Jacobson refused to be vaccinated because he said he and his son had bad reactions to earlier doses.

Jason Dudash, Oregon director of the Freedom Foundation, said the government allowed Jacobson an alternative to getting vaccinated in the case more than a century ago: pay a $5 fine. “They gave him an alternative,” Dudash said. “That’s really what we’re trying to accomplish with this lawsuit … Right now it’s one size fits all.”

Dudash pointed out a California professor filed a lawsuit Sept. 2 based on the argument he had natural immunity from a previous COVID infection and should not be subjected to his college’s vaccine mandate. Dudash said the Freedom Foundation’s Oregon case is modeled on a lawsuit filed in August against George Mason University by a professor at the university’s Antonin Scalia Law School who had COVID and objected to the vaccine mandate. The case never made it to trial, since the university granted the professor an exemption.

Correction: This article has been updated to reflect that all of the people in the CDC’s Kentucky study previously contracted COVID-19.

— Hillary Borrud; hborrud@oregonian.com; @hborrud

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