Paul L. Caron
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Tuesday, August 3, 2021

Law Prof With Natural Immunity From Bout With COVID-19 Fights George Mason's Vaccine Mandate: No Shot, No Raise

New Civil Liberties Alliance Press Release, NCLA Tells GMU That Its Forced Vaccination Policy Violates Constitutional Rights and Medical Ethics:

Zywicki 2George Mason University (GMU) in Fairfax, Virginia, is doubling down on its flawed reopening policy for the Fall 2021 semester, which tramples on the civil liberties of students, faculty, and employees alike. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, sent GMU a letter on Wednesday on behalf of NCLA’s client, Scalia Law School Professor Todd Zywicki, along with affidavits from Drs. Jay Bhattacharya, Martin Kulldorff, and Hooman Noorchashm, explaining that the school’s policy is irrational from a scientific perspective and violates fundamental tenets of medical ethics.

In an official statement released today via newswire, GMU President Gregory Washington confirmed that the university would “require all students, faculty, and staff to get vaccinated, and to share verification of their vaccination status, in order to work, study, and live on campus.” The university’s initial press release went so far as to threaten faculty, stating, “disciplinary action will be pursued against those faculty and staff who fail to receive an exemption and do not disclose their status and receive the vaccine. This action could include unpaid leave or possible loss of employment.” Less than an hour later, the university removed the incendiary language from the press release on its website.

GMU’s unlawful policy mandates that all unvaccinated faculty, including those who can demonstrate natural immunity by way of prior Covid-19 infection, must wear a mask on campus, physically distance, and undergo frequent testing. Employees are also ineligible for merit-based pay increases if they do not upload proof of their vaccination status into an online portal.

For Professor Zywicki, who has recovered from Covid-19 and acquired robust natural immunity, it is not only medically unnecessary to undergo a vaccination procedure at the current time, but doing so also would create a risk of harm to him. Nevertheless, because the penalties GMU attaches to remaining unvaccinated will diminish Professor Zywicki’s efficacy in performing his professional responsibilities, the policy coerces him into receiving the vaccine.

The U.S. Supreme Court has held that a “forcible injection … into a nonconsenting person’s body represents a substantial interference with that person’s liberty[.]” Subsequent Supreme Court decisions have made explicit that the right to “refus[e] unwanted medical care” is “so rooted in our history, tradition, and practice as to require special protection under the Fourteenth Amendment.” Because the reopening policy infringes upon a fundamental, constitutional right not to receive a vaccine against one’s will, should it face a lawsuit, GMU would have to demonstrate that its policy furthers a compelling state interest. Given Professor Zywicki’s natural immunity, which is confirmed by reliable antibody testing, the university cannot demonstrate such an interest.

Shockingly, according to the university’s policy, GMU will acknowledge any vaccine approved by the World Health Organization as satisfying the requirement, not just FDA-approved vaccines. This means it will accept many vaccines that have proven to be quite inferior.

NCLA’s letter urged GMU to re-examine its reopening policy, to deem natural immunity at least equivalent to that achieved through vaccination, and to confirm that Professor Zywicki will not lose eligibility for pay raises in the future if he does not wish to share his vaccination status.

NCLA released the following statements:

“George Mason University has no legitimate legal interest in forcing Professor Zywicki into undergoing a medical procedure that is not necessary to protect him or the university community. Professor Zywicki has immunity as robust and durable as that achieved through vaccination, while at the same time he faces a real risk of adverse effects from the Covid-19 vaccines, as we have established through the declarations of three of the world’s most qualified scientists to address the matter.”
— Jenin Younes, Litigation Counsel, NCLA

“George Mason is forcing me to choose between serving my students on one hand and undergoing an unnecessary and potentially risky medical procedure on the other. Multiple clinical studies have shown that natural immunity provides at least as much protection against reinfection as the most effective vaccines—and unquestionably more protection than less-effective vaccines from China and elsewhere that university policy approves. Clinical studies have also shown that receiving vaccination after recovering from Covid presents an elevated risk of side effects compared to those without natural immunity, who would benefit from vaccination. This is an important health matter that should be determined by my doctor and me—not forced on me by university policy-makers who have no familiarity with my personal medical history under the threat of ‘possible loss of employment’ for failing to comply.”
— Todd Zywicki, George Mason University Foundation Professor of Law

Richard A. Epstein (NYU), The Uneasy Case For Universal Vaccinations:

Todd Zywicki ... [has] has requested to be exempted from the university-wide policy that bars all faculty, students, and staff from being on campus for any purpose unless they verify that they have been vaccinated. The policy subjects them to disciplinary sanctions, including unpaid leave or possible loss of employment, if they are in violation. The policy also notes that GMU “will, of course, approve appropriate exemptions for medical and religious reasons,” without saying how that process will play out. One vital aspect of the GMU policy is that it will not provide an exemption solely because a university member has demonstrated that he, like Zywicki, has obtained a high level of natural immunity from previous exposure to COVID-19.

Zywicki has provided potent evidence for the record. His personal physician, Dr. Hooman Noorchashm, submitted an affidavit that stressed his view that vaccination was medically unnecessary because Zywicki’s experience of contracting and recovering from COVID-19 offered “sufficient and durable protection against reinfection and transmission.” Another affidavit by Professors Jay Bhattacharya of Stanford and Martin Kulldorff of Harvard, both long-time contrarians on COVID matters, concluded, consistent with their general view, “that while vaccines are generally recommended for older individuals, they are not needed for patients with natural immunities.” They further argue in their affidavit that many empirical studies “overwhelmingly conclude that natural immunity provides equivalent or greater protection against severe infection” than immunity generated by the Moderna and Pfizer-BioNTech vaccines now in use. Natural immunity appears especially strong compared with the one-dose Johnson & Johnson vaccine, which is said to be only about 66.3 percent effective against initial infections.

These two affidavits present a strong medical argument in support of Zywicki’s position and assert that it is possible for GMU to both identify and police this significant exception to the vaccine program without creating any public risk. GMU is a public university that unquestionably is required to respect the various constitutional guarantees, especially when the police-power justifications have been given. Thus, Zywicki’s request for an exemption cannot simply be sidestepped because of the supposed evidentiary difficulties in proving his level of natural immunity or the adverse effect of COVID-19 on his medical condition.

A final consideration is that it might be wise not to impose any mandate at all. This view argues that the social case for vaccine mandates is not there. Most individuals will probably get the vaccine because it is in their self-interest to do so. Free riding is not an enticing option, given that it is highly unlikely that everyone else will get the vaccine. At the same time, high-risk individuals have every incentive to make the right choice for themselves, undercutting the need for paternalism. And anyone else who fears exposure will also provide implicit protection to others if they get a vaccine to protect themselves.

These considerations could well reduce the levels of risk at far lower administrative costs than the mandates of GMU and similar programs, which are both administratively expensive and prone to various forms of systematic error. In close cases like this one, there is much to be said for respecting the presumption of liberty, given the serious likelihood that individuals like Professor Zywicki will respond to the risks appropriately. Voluntary sorting is often more efficient than state mandates because it utilizes downstream information.

These arguments have constitutional valence solely because GMU is a state-run institution. In principle, private institutions are free to make their own determinations, but the logic against broad vaccination programs in that context is every bit as strong as within public institutions. In addition, as is increasingly more common, there is an ever tighter interdependence between public and private institutions so that it is no longer as easy for the latter to claim independence from constitutional oversight when the federal government has either by promises or threats “insinuated” itself into private actions. The Zywicki letter raises profound issues of public health policy that require a more nuanced analysis.

Update:

https://taxprof.typepad.com/taxprof_blog/2021/08/law-prof-with-natural-immunity-from-bout-with-covid-19-fights-george-masons-vaccine-mandate-no-shot-.html

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