Adm.
Giroir, the COVID-19 testing czar,[1] has stated that “tens of millions”[2] of antibody tests would be
in the pipeline, soon; but they come with many uncertainties about what that
will mean. There is no clear evidence that having antibodies to COVID-19 will
protect you from getting the disease again, and to the extent we can believe
it, reports from China were that people were being reinfected after recovering
from the viral infection.[3] There are several strains
of COVID-19 that could complicate the antibody tests, and the level of
antibodies necessary to confer immunity is another measure we do not have.[4] We are relying on decades
of studies and the very scientific underpinning for vaccines that tell us that
antibodies from a COVID-19 infection should make us immune to COVID-19. Even
that basic medical principle is challenged by COVID-19.
The
concept of “herd immunity” is at least part of the recovery plan for Sweden,
where they believe more than 30% of the population has antibodies to COVID-19,[5] creating an antibody
environment that would slow transmission. But some experts believe it takes
closer to 60% of the population with immunity to achieve the herd immunity
effect.[6] We, in the U.S., are far
from this standard, today.
So
assuming we answer these scientific questions, and certificates of immunity, an
idea discussed in April by the U.S. public health leadership are considered?[7] What are the legal issues?
The
first reaction to certificates of immunity has been to reference the idea as a dystopian
plot for a novel. Labeling and stigmatization of individuals is the fear. The
second, and far more damaging reference, was to use the term “suspend
individual rights” in order to reopen America. We do not, let me repeat, we do
not, suspend individual rights, ever, under our Constitution. For those of you
who are planning on government collapse, you may be disappointed because we
have a well-practiced, continuity of government (COG) plan in place (and now
ready) should government be even slightly diminished in function.
We
also have a prohibition against military governance, the Posse Comitatus Act, passed after reconstruction following the U.S.
Civil War, because we saw it was a very bad idea to have a military-civilian
law enforcement relationship. So any “suspension” of individual rights is
clearly prohibited by law.
The
U.S. Constitution is still our guaranteed protection against tyranny. The Bill
of Rights ensures, without suspension, how those rights are balanced against
the interests of the American society and its protection against invasion from outside
the nation and crime, public health and property protection, from inside the
country.
So
how do we balance the need to reopen the economy and allow individuals to
pursue work and life? A certificate of immunity is one idea to safely govern
the return to work, school and play, but it must not burden individual rights
and protections more than it benefits and serves the needs of the American
people – in Constitutional law language, it is the compelling government
interest in reopening the economy and protecting public health that must
outweigh the burden on individual rights. The balance is making sure it is
worth the burden placed on individual protection and rights.
Now
let us examine the individual rights that would be “burdened” by a certificate
of immunity, again, assuming we find a reliable diagnostic test on which to base
such a certification.
First,
the U.S. Supreme Court has opined that the U.S. Constitution guarantees the
right of privacy. This is found not in the word “privacy” anywhere in the text
of the Constitution, but collectively found from the 3rd, 4th,
5th, 10th and 15th Amendments of the U.S.
Constitution. That is settled law. That means your health information is a
privacy interest of every individual, and Congress has ensured it is protected
through the HIPAA protection that is afforded patients of healthcare providers.
However, HIPAA does provide for the revealing of that information to public
health authorities in a public health emergency, which is considered a burden
that is not too great on individual privacy rights, in that narrow circumstance
of a public health emergency. As of this writing, there is a declared national
public health emergency and all fifty states have issued public health
emergency proclamations or the equivalent. Your privacy right would weigh less
in the balance of these set of facts and circumstances.
Second,
equal rights for every individual is guaranteed by the 14th
Amendment, and discrimination against an immutable characteristic is prohibited
– meaning something you cannot change, like gender, race, etc. Immunity is not
an immutable characteristic and can even be changed with a vaccination. That
said, individuals with immuno-compromised conditions and other risk factors
that would make attempts at gaining immunity from the disease or a vaccination
prohibitive, warrant special consideration. Part of a certificate of immunity
policy would have to plan for how this class of individuals might return to
work without discrimination based on these characteristics that they cannot
change.
Third,
workplace discrimination is prohibited by genetic information, and there is
some indication that genetic information could be correlated with immunity for
a more reliable immunity determination. Workplace discrimination based on
genetics is prohibited by federal law,[8] the Genetic Information and
Nondiscrimination Act (GINA) of 2008.[9] Congress would have to
adopt an amendment to GINA to allow the use of genetic information as part of a
certificate of immunity. However, workplace discrimination has been held to be
likely enough for a federal district court to issue an injunction against a
hospital where a group of nurses refused a smallpox vaccination as a condition
of continuing in their jobs in the hospital in Washington State.[10] This was a federal
district court order, but it is an indication of how the law might be applied, if
tested, in other courts, with certificates of immunity as a condition to return
to work. Remember, this is also a balancing test, and this conflict occurred
almost one year after the passage of the Smallpox Protection Act in response to
the threat posed by the anthrax attacks of 2001. That law called for taking the
precautionary step of vaccinating frontline workers with the smallpox vaccine. In
2003, the threat was still very real, but by 2004, the threat had largely
passed in terms of public perception and the balancing of the risk of the
smallpox vaccine against the likelihood of a smallpox attack (the compelling
government interest being to protect the nation) no longer seemed balanced. For
now, the balance of a certificate of immunity for COVID-19 weighed against the
need to safely return the American workforce to work may be a much more
acceptable balance. As circumstances and conditions change with regard to
COVID-19, so too, would the balancing test.
Fourth,
safety in the workplace where personal protective equipment is required by the
employer, as a condition of employment, can be bolstered by the employer relying
on state and federal recommendations and protocols.
Finally,
how different is a certificate of immunity from a vaccination record that is required
to attend public school and public universities? Requiring vaccinations for
public school has been found to be consistent with our Constitution[11] where exceptions can be
made for those unable to have vaccinations. This policy is driven by the susceptibility
of children to these childhood diseases balanced by its narrow application to
public school attendance and the compelling government interest of preserving
the lives of many more children by using vaccinations.
The
unintended consequences of such a policy must also be considered. Such a policy
might drive those who vitally need to return to work to sustain themselves and
their families to infect themselves to obtain immunity,[12] perhaps with deadly
consequences. In fact, just the mention of certificates of immunity may have
triggered some individuals to get a “head start” on the policy. (We already
have a network of “chicken pox parties” in Facebook groups who plan intentional
infections of the childhood disease for their children with the dangerous and
perverse logic that it will help them.[13] It is not an unreasonable
assumption that the same network might be developed for COVID-19.)
Will
such a policy create a stigmatized group of individuals? Not if we plan
accommodations in the policy for those who are unable to obtain immunity and
thus the certificates of immunity. Even without certificates of immunity, there
are already classes of individuals that should not return to work where the
risk of infection is high, like the risk group of 65 and older. There may be
stigmatization against young adults who are largely identified as the
population that can spread the disease with no symptoms, potentially making
them a stigmatized group.
The
balance of the government interest against the burden on individuals having to
prove such immunity with certificates to return to work, school and play could very
well be constitutionally balanced, now, in these times and circumstances. It
does not mean this will always be the balance, because when the threat
subsides, and the burden becomes unwarranted by the compelling government
interest to keep us safe from COVID-19, certificates of immunity will no longer
be warranted.
Finally,
despite the increasing use of Executive Orders when Congress will not act to
carry out the policies of a duly elected President (exercised by Presidents of
both political parties), certificates of immunity would be considered a
“rulemaking” meaning that it would have a legal impact on individuals. At a
minimum, such a policy would require an authorizing statute giving broad
authority to make such a rule, but it would also require notice and comment for
60 days, which could be repeated until the rule/law is final. In an emergency,
the certificates of immunity could be instituted, while a rulemaking is
underway. Rather than the Executive Branch risking a judicial review of the
legality of a certificate of immunity requirement, a certificate of immunity
could be made voluntary for employees
and employers, but that would leave employers who demand the certificates as an
absolute condition of employment exposed to litigation without the authority of
a federal requirement as a per se defense.
Certificates
of immunity would create two general groups: those who can work, study and play
and those who still have access to these activities in a more protected way. If
we do not have certificates of immunity, the likelihood of stigmatizing groups
known to be vulnerable (older adults), and groups known to be spreaders without
symptoms (younger adults) is a certainty, which will raise Constitutional
issues to resolve.
So,
if science can give us a reliable test with predictability, a certificate of
immunity can be managed with no suspension of the Constitution or
individual rights. The Constitution will operate the way it was designed, with
principles of freedom, democracy and dignity and protected rights for the
individual.
[9] Pub.L.
110–233, 122 Stat. 881 (May 21, 2008).
[10] Washington
State Nurses Assoc. v. Virginia Mason Medical Center, (W.D. Wash., Oct 1, 2004).
[11] Jacobson v. Massachusetts, 197 U.S. 11 (1905)
also citing several state cases that upheld the authority to require school
vaccinations.
An excellent article that brings up many valid legal points. The largest impediment at the moment is our lack of understanding regarding immunity of COVID-19, and as you say, whether antibodies do truly confer immunity and for how long. Because we do not live in a perfect world (assuming we even had a reliable assay for measuring anti-SARS-CoV-2 antibodies), I worry about how such a certificate of immunity program would be rolled out. So many people now, especially those who do not have access to cars, cannot even get tested for the virus. The current state of affairs for VIRUS testing does note bode well for having a reliable system in place for ANTIBODY testing.
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