What has Jed Rubenfeld — the lawyer, professor, erstwhile novelist, and husband to Amy Chua (of “Tiger Mom” fame) — been up to since getting placed on a two-year suspension from Yale University, over an internal investigation into allegations of sexual harassment and inappropriate conduct with his female students? Apparently he has been ingratiating himself with the anti-vaxx community.
For one, he has been representing Children’s Health Defense, the anti vaccination organization helmed by Robert F. Kennedy Jr., in its lawsuits against Facebook. For another: on Sunday, he co-wrote an opinion piece for the Wall Street Journal with Luc Montaignier, the French virologist who won the Nobel Prize for discovering the ties between HIV and AIDs and then spent his academic goodwill by trying to reinvent homeopathy, in which they challenged the legality of Biden’s vaccine mandates on the grounds of a single, non peer-reviewed study.
The piece, which was published on Sunday, ran under the headline “Omicron Makes Biden’s Vaccine Mandates Obsolete.” It concerned the two mandates recently under review in federal courts — the Health and Human Services Department requirement for Medicare and Medicaid health workers, and the Occupational Safety and Health Administration’s variation for many large employers.
Their argument goes something like this: the legal system has primarily been evaluating the two requirements from an administrative law standpoint, but in effect, they need only consider the Omicron variant. They assert that the legal precedent for vaccine mandates goes back to a 1905 Supreme Court case (Jacobson v. Massachusetts), which established that the individual right to refuse medical intervention could be trumped by the societal need to protect public safety — in this case, by curbing contagious spread. Until recently, this arguably applied to COVID. Vaccination demonstrably reduced the risk of testing positive for COVID, and thus spreading it to others. But the Omicron variant, they argue, has undermined those grounds, because it lacks the necessary — in their words — “evidence that vaccines will prevent infection or transmission (rather than efficacy against severe outcomes like hospitalization or death).”
So far, you can almost see the logic. It’s true that Omicron has led to more (though apparently milder) breakthrough cases following vaccination than prior variants. But there is still substantial evidence to suggest vaccination, and in particular booster shots, reduce the risk of infection. Rubenfeld and Montaignier nod to that briefly, but not before writing this:
The little data we have suggest the opposite. One preprint study found that after 30 days the Moderna and Pfizer vaccines no longer had any statistically significant positive effect against Omicron infection, and after 90 days, their effect went negative—i.e., vaccinated people were more susceptible to Omicron infection. Confirming this negative efficacy finding, data from Denmark and the Canadian province of Ontario indicate that vaccinated people have higher rates of Omicron infection than unvaccinated people. (Emphasis ours)
This “preprint” study is just that — pre-print. It hasn’t been peer-reviewed or published. The link leads to medRxiv, a service that allows researchers to share scholarship before it has been vetted or certified. The study has a bolded disclaimer at the top that reads: “This article…reports new medical research that has yet to be evaluated and so should not be used to guide clinical practice.” That could be fine — peer review takes a while, and much of the research on Omicron is new — if Rubenfeld was merely pointing to this draft as a single instance among several. But it is the only study cited in the piece.
Moreover, as the op-ed concedes later, there is evidence to suggest that vaccination offers some protection against the variant, and that booster shots provide even more. This is clear to even the authors of the study Rubenfeld cites who, as About the Law noted, conclude that: “In light of the exponential rise in Omicron cases, these findings highlight the need for massive rollout of vaccinations and booster vaccinations.” That’s in line with this update from the National Institutes of Health in mid-December:
The first data to emerge present somewhat encouraging results. While our existing mRNA vaccines still offer some protection against Omicron, there appears to be a significant decline in neutralizing antibodies against this variant in people who have received two shots of an mRNA vaccine.
However, initial results of studies conducted both in the lab and in the real world show that people who get a booster shot, or third dose of vaccine, may be better protected. Though these data are preliminary, they suggest that getting a booster will help protect people already vaccinated from breakthrough or possible severe infections with Omicron during the winter months.
The NIH even included this nice graphic:
These mandates probably aren’t going to pass the Supreme Court. And there is room for a conversation about how to legally encourage vaccination and mitigate spread in the face of an evolving viral threat, particularly when vaccine effectiveness is a moving target. But if Rubenfeld wants to spend his down time defending RFK Jr. and hashing out unpublished work, I’d rather see drafts of his novels.