The Volokh Conspiracy

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Lawsuit Over George Mason Vaccination Requirement Seeks Exemption for Those Who Had Already Contracted COVID

The lawsuit is filed by our own coblogger Todd Zywicki, a professor at the George Mason law school.


You can read the Complaint in Zywicki v. Washington (E.D. Va.), filed yesterday; an excerpt:

Professor Todd Zywicki has already contracted and fully recovered from COVID19. As a result, he has acquired robust natural immunity, confirmed unequivocally by multiple positive SARS-CoV-2 antibody tests conducted over the past year. Professor Zywicki's immunologist, Dr. Hooman Noorchashm, has advised him that, based on his immunity status and personal medical history, it is medically unnecessary to undergo a vaccination procedure at this point (which fact also renders the procedure and any attendant risks medically unethical).

Yet, if Professor Zywicki follows his doctor's advice and elects not to take the vaccine, that will diminish his efficacy in performing his professional responsibilities by hamstringing him in various ways, such as requiring him to wear a mask that has no public health value given his naturally acquired immunity. He will also face adverse disciplinary consequences. In short, the Policy is unmistakably coercive and cannot reasonably be considered anything other than an unlawful mandate. And even if the Policy is not deemed coercive, it still represents an unconstitutional condition being applied to Professor Zywicki's constitutional rights to bodily integrity and informed medical choice, respectively.

Given the antibodies generated by his naturally acquired immunity, the Commonwealth of Virginia cannot claim a compelling governmental interest in overriding Professor Zywicki's personal autonomy and constitutional rights by forcing him, in essence, to either be vaccinated or to suffer adverse professional consequences. Natural immunity is at least as robust and durable as that attained through the most effective vaccines, and is significantly more protective than some of the inferior vaccines that GMU accepts. Very recent studies are also establishing that natural immunity is significantly longer lasting. As a result, GMU's Policy is designed to force its way past informed consent and infringes upon Professor Zywicki's rights under the Ninth and Fourteenth Amendments to the United States Constitution.

For similar reasons, the Policy constitutes an unconstitutional condition, because it is poorly calibrated to protect the public health, yet it poses disproportionate risks on some of its targets. That renders the Policy an unlawful condition insufficiently germane to its purported purpose. Furthermore, the disciplinary and other burdens that GMU is using to leverage ostensibly voluntary compliance with its Policy are not proportional to the purported public health aims.

In sum, the Policy violates both Professor Zywicki's constitutional and federal statutory rights because it undermines his bodily integrity and conditions his ability to perform his job effectively on his willingness to take a vaccine that his doctor has advised could harm him. And forcing him to take this vaccine will provide no discernible, let alone compelling, benefit either to Professor Zywicki or to the GMU community. The unconstitutional conditions doctrine exists precisely to prevent government actors from clothing unconstitutional objectives and policies in the garb of supposed voluntarism when those actors fully intend and expect that the pressure they are exerting will lead to the targets of such disguised regulation succumbing to the government's will. Professor Zywicki invokes this Court's Article III and inherent powers to insulate him from this pressure and to vindicate his constitutional and statutory rights….

Dr. Noorchashm also determined that a full-course vaccination procedure would expose Professor Zywicki to a heightened risk of adverse side effects that would exceed any speculative benefit the vaccine could confer on someone already protected with antibodies.

Existing clinical reports and studies indicate that individuals with a prior infection and naturally acquired immunity face an elevated risk of adverse effects from the vaccine, compared to those who have never contracted COVID-19.

This is consistent with understandings of immunology generally, which recognize that "vaccinating a person who is recently or concurrently infected [with any virus] can reactivate, or exacerbate, a harmful inflammatory response to the virus. This is NOT a theoretical concern[.]"

To the extent it's relevant, Dr. Noorchashm's declaration states that,

Professor Zywicki's semiquantitative antibody reading [as of June 1, 2021] measured 715.6 U/ml—approximately 900 times higher than the baseline level of <0.8. This level is comparable to that I have seen empirically in vaccinated persons who share his age and health profile, including myself. In my opinion, Professor Zywicki's spike antibody level is highly likely to be far above the minimum necessary to provide adequate protection against re-infection from the SARS-CoV-2 virus….

According to a study in the medical journal Life (March 2021), "our study links prior COVID-19 illness with an increased incidence of vaccination side effects and demonstrates that mRNA vaccines cause milder, less frequent systemic side effects but more local reactions." The elevated side effects identified in the article include events such as anaphylaxis, swelling, flulike illness, breathlessness, fatigue, and others, some requiring hospitalization.

A study published in The Lancet Infectious Diseases (July 1, 2021) examined reports from 627,383 individuals using the COVID Symptom Study app. The authors reported a higher incidence of both systemic and local side effects from receiving the first vaccine dose for those who had previously been infected with COVID-19 compared to those who had not previously been infected.

On the other hand, Mason is relying on the CDC's guidance, which provides,

Yes, you should be vaccinated regardless of whether you already had COVID-19. That's because experts do not yet know how long you are protected from getting sick again after recovering from COVID-19. Even if you have already recovered from COVID-19, it is possible—although rare—that you could be infected with the virus that causes COVID-19 again. Studies have shown that vaccination provides a strong boost in protection in people who have recovered from COVID-19. Learn more about why getting vaccinated is a safer way to build protection than getting infected.

As various motions are filed, we'll see more of the legal arguments on both sides, and I hope to blog more about the case in the future.