The war on the war on covid continues: vaccine mandates and judicial review

George Mason University law professor Todd Zywicki has filed suit against GMU over its policy of requiring students and staff to be vaccinated against covid. 

Zywicki does not argue that any vaccine mandate is unconstitutional.  Instead, he claims that GMU’s vaccine mandate violates his constitutional rights to bodily integrity and medical choice because he has recovered from covid and has natural immunity.  In his view, only a mandate with an exception for people with natural immunity should be constitutionally permissible. (He also makes a statutory pre-emption claim, which I will not address.)

Let us assume that the constitution should be read to grant each of us a right to bodily integrity and medical choice.  In this case, the critical question is whether a vaccine mandate should be held to infringe on that right.  If a vaccine mandate does infringe on a legally protected right, then any state action needs to be “narrowly tailored”, which (at least arguably) would require an exemption for those with natural immunity.

I will argue that a vaccine mandate should not be held to violate any right of Zywicki, because the cost to him of complying with the policy is trivial at most.  Constitutionalizing formal but substantively trivial rights-claims puts important policy decisions in the hands of judges who have no relevant expertise and no institutional capacity to bring expertise to bear on complicated problems.  It also risks politicizing the judiciary and undermining support for judicial independence.  There are cases where formal rights should be protected from non-substantive violations, but it is difficult to see why this is such a case.  Zywicki should buck up and take his shot, rather than making a constitutional mountain out of a trivial personal sacrifice.

From the complaint (my bold):

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.

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.

What should we make of these claims?

As an initial matter, Zywicki is not being singled out for adverse treatment.  Given the prevalence of covid, it would not be surprising if 1/3 or more of GMU faculty and students have recovered from the disease. In addition, there is no reason to suspect any animosity towards people with natural immunity.  Liberty of conscience is not involved: Zywicki is not being forced to take a loyalty oath, and there is an exemption for people with religious objections to vaccination. Add in the fact that getting vaccinated poses little risk to Zywicki, and will arguably benefit him by strengthening his immunity, and it is difficult to see why courts need to apply heightened scrutiny to this case.

Of course, it might well have been reasonable for GMU to allow an exception to their vaccination requirement for people with natural immunity.  However, it is also easy to see why university administrators might have required vaccination for people with natural immunity.  For one thing, if they allow an exemption, they need to set up a process for administering it.  One imagines that they have other things on their minds as they try to arrange for a smooth return to in-person learning.  In addition, it seems reasonable to believe that vaccines reduce the risk that people with natural immunity will catch and transmit covid.  This can be true even if natural immunity is stronger and longer lasting than vaccine-based immunity.  (The complaint carefully ignores the possibility that vaccines provide added protection against covid and focuses instead on the irrelevant claim that natural immunity is better than vaccine-based immunity.) Given how disruptive a covid outbreak could be, it seems reasonable to require people with natural immunity to get vaccinated.

The complaint cites many studies, affidavits, and newspaper articles, and makes a myriad of claims about relative risks and the duration of protection from covid.  It is doubtful that judges are competent to evaluate this evidence, and it seems that reasonable university administrators could look at the same data and make different policy choices.  Given the extremely low stakes for Zywicki, the fact that people will inevitably interpret the available evidence in different ways, the need to let administrators adapt policies to their situations, and the lack of expertise of judges, it is far from clear what advantage is gained by letting judges second-guess administrators.

Furthermore, much of the evidence cited in the complaint is quite recent (e.g., July 2021).  Some of it simply could not have been available to GMU decision makers at the time they were formulating their policy.  So Zywicki is not merely demanding a policy that takes into account lots of potential complications, he is demanding that the policy be constantly updated as new information becomes available, and that judges stand prepared to intervene whenever new studies become available.

Again, I am not claiming that the policy Zywicki favors is a bad one.  Perhaps it is a better policy than the policy GMU adopted.  That is not the question.  The question is whether a trivial, non-substantive rights violation is sufficient to subject vaccine mandates to endless and controversial judicial scrutiny.