Omicron is exploding in the United States, likely destined to reach case levels we have yet to see during this two-year pandemic. This may seem to strengthen governments’ hands in imposing vaccine mandates. Counterintuitively, however, given the idiosyncrasies of this now-dominant variant, governments’ interest in mandating vaccinations become less compelling rather than more. That’s because vaccinations appear to do little to nothing to stop Omicron’s spread, as the chief epidemiologist of Denmark’s State Serum Institute lamented, despite President’s Biden’s claim to the contrary. Below, I propose a two-dimensional framework for assessing how compelling a government’s interest is in mandating vaccines based on the characteristics of a virus and apply it to Omicron.
This matters because whichever wave we are in the pandemic (fifth?), we are in the second wave of Covid-19-related religious-liberty litigation. The first wave was institutional, focusing on worship restrictions. This wave is individual, focusing on vaccine mandates. Three such cases have recently come before the U.S. Supreme Court with the Court refusing to hear them. Now, a fourth case is before the Court for an emergency injunction, which case involves a vaccine mandate for public-high-school students in San Diego that does not recognize religious exemptions.
Just as this new wave of religious-liberty lawsuits brings different types of plaintiffs challenging different types of government actions, so too this new wave brings an added interest espoused by governments. For the first-wave government restrictions on worship, the government interest espoused in litigation was preventing viral transmission. And as the Court recognized in Roman Cath. Diocese of Brooklyn, “Stemming the spread of COVID-19 is unquestionably a compelling interest.” That same interest is still being used by governments, now to justify vaccine mandates. However, a second interest is now being pushed by governments in support of vaccine mandates: reducing the harm the virus causes when someone get it.
These two different interests, besides not being identical, are also not equal, especially when a court gets to the compelling government interest that strict scrutiny triggers. A hypothetical illustrates this. Imagine that a virus required two vaccines. The first prevented infected individuals from spreading the virus to others. The second reduced the harm suffered by an infected individual. The government’s interest in preventing harm to others by limiting the interpersonal spread of the virus, especially if that virus is particularly harmful, is likely to be compelling (though one still must do the rest of the analysis, such as applying the interest to the particular plaintiff and looking at how other exemptions may undermine the interest).
But what about limiting the harm to an individual already affected? The government’s paternalistic attempt to protect people from themselves seems less compelling. And if that virus is not overly harmful, the government interest becomes even less compelling. In short, if people want to take on the risk of not getting vaccinated, as long as it did not pose harm to others, it’s much harder to see how the government’s interest rises to the lofty level of being classified as constitutionally compelling. If that alone was sufficient, then governments would have a compelling interest in forcing people to exercise, eat more vegetables, and drink less soda to avoid heart disease or obesity.
This just leaves, then, the concern about spread. And even that must be qualified by the degree of harm of the virus. Take the common cold: It’s hard to see the government mustering a compelling interest in mandating vaccinations to prevent its spread given how mild it is. On the other hand, Ebola, with its drastically high mortality rate seems like an easy case for a vaccine mandate that satisfies compelling government interest if the vaccine helps prevent spread.
This leaves us with two dimensions to consider in assessing just how compelling is a government’s interest in mandating vaccines: the vaccine’s effectiveness in preventing spread of the virus and the virus’s level of harm. Conceptualizing these dimensions creates four scenarios of government interests:
Where does Omicron fit into this framework? It is still early given the variant only emerged last month, but we do have some initial data — as much data as governments are relying on to take actions such as shutting down schools or imposing travel bans as governments claim to “follow the science.”
How does Omicron measure on the vaccine-effectiveness dimension? Terrible, at best. In short, a recent study showed that the four common two-dose or one-dose vaccinations have little to no effect on reducing transmission, with one study estimating “vaccine effectiveness against symptomatic infection” at “between 0% and 20% after two doses” of Pfizer and AstraZeneca (the former being the only vaccine that minors are approved to take). Another study found that the J&J vaccine “produced virtually no antibody protection against the omicron coronavirus variant.” As a third new study determined, this one out of Columbia University, Omicron is “markedly resistant” to the vaccines. And CNN’s Chris Cillizza just admitted, “The reality is — and has always been even if I didn’t realize it — that the vaccines don’t, really, prevent you from getting the virus.” That appears particularly true with Omicron. (Even with the Delta variant, the Pfizer vaccine, for example, only lowered the chances of transmission by a mere 15 percent for about three months compared to the unvaccinated, after which there was no difference). Furthermore, though somewhat irrelevant to current vaccine mandates, according to these studies boosters also don’t seem to do much, though perhaps some, to stop the spread of Omicron. Also, besides transmissibility, vaccinations aren’t very effective in preventing re-infection, with Omicron over five times more likely to lead to reinfection compared to Delta. In sum, it appears just about everyone is going to get Omicron sooner or later, regardless of their vaccination status.
The good news is that Omicron appears to be milder based on initial infections in South Africa, Denmark, and New York City, though the usual caveats that it’s early still apply. Two initial studies, one out of South Africa and the other out of Scotland indicate Omicron is milder than the Delta variant, with an up to 80 percent reduction in the need for hospitalization, making Omicron more like a case of the common cold than a consistent killer, at least compared to earlier variants of Covid-19. And vaccinations may play a role here, tempering the harm of the virus once infected.
How does pre-Omicron Covid-19 compare to other infectious diseases? About 40 percent of infected persons experience no symptoms. Johns Hopkins University calculates the Covid-19 fatality rate in the United States at 1.6 percent. While this is higher than the mortality rate of the flu, it pales in comparison to the mortality of diseases such as polio (15-30 percent in adolescents and adults, 2-5 percent in children), smallpox (30 percent), and Ebola (25-90 percent fatality rate). (That is not to say people without religious-liberty objections should seriously consider getting vaccinated against Covid-19 — I did and would encourage others to do so as well.)
Putting it all together, Omicron now is the nation’s dominant Covid-19 variant, with Omicron being on the milder side and mostly resistant to current vaccines as far as preventing spread goes. This places Omicron in the lower-left quadrant on the conceptual framework above. It’s hard to believe that governments have an interest in forcing unwilling individuals to violate their constitutionally enumerated rights via unwanted vaccinations when those vaccinations do little to nothing to prevent spread, much less a compelling interest.
Should a new variant emerge that becomes dominant and that differs as to harm and transmissibility in the face of current vaccines, or better vaccines are produced, then the analysis would change. Governments are more likely to have a compelling interest as to vaccine mandates when they have a magic bullet, but not when they are shooting blanks.