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.
“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.”
Well. this is BS. Like vaxxed people, people with his immunity can pass on the virus. Just like people that have had Covid, can get it again. I go back and forth whether GMU or Harvard have the worst law schools.
The legal questions here are above my pay grade.
On the immunology side, the assertion that people who were infected now have immunity comparable to vaccinated people has no scientific foundation. That people who are symptomatic and recover can have such immunity wouldn’t surprise me, but many or most infected people are asymptomatic and I doubt they attain as high a level of adaptive immune response.
To implement this exception would necessitate antibody testing of all people claiming such an exemption, and a quantitative threshold of test response. Timing is important, as circulating antibodies decline with time, but memory T and B cells perdure and are responsible for long-term immunity.
Joel:
From my readings, immunity gained from having had a form of Covid is less capable than an inoculation. Even so and people having immunity to Covid still contract forms of Covid, can carry the virus, and pass it onward by physical presence to another person. My readings have been the vaccine prevents a worse outcome of Covid and a lesser likelihood of dying.
Good thread. Eric did good and then EMike and Joel made it better. That is how that the dialectic is supposed to go.
Thank you, Eric, Joel, Ron, and EMichael. This takes time and thoughtfulness.
Hey Eric
Great post! This just appears to be a person (Todd) drawing his line in the sand moment with little thought to what his actions will create going forward. It is already difficult getting people to get vaccinated. They do not need flimsy and medically limited legal excuses not to do so.
I think it’s a good case if for no other reason than to establish how his employer developed their policy and also the control policies that accompany this. What exactly are their goals? How did they decide to exclude naturally acquired immunity? Do they have a review schedule that makes sense as data comes in? Joel, I think, is a bit unfocused on the presumed need to test for antibodies. Those patients with inadequate immune response to coronavirus do not recover from their infections and questions of duration are not limited to naturally acquired immunity. Anyway, I really don’t get why including naturally acquired immunity is a problem. It reduces the scope of the headaches of such policies. If you are okay accepting a document that a medical provider says demonstrates that a certain substance was injected into this persons, not any harder to do so for a similar COVID test result or doctor’s diagnosis.
@Eric,
“Those patients with inadequate immune response to coronavirus do not recover from their infections . . . ” You know this . . . how? Link, please.
“I really don’t get why including naturally acquired immunity is a problem.”
I can see that. Let me explain: all “immunity” isn’t the same. The definition matters. If you have a weak immune response because you had a subclinical infection, your response to a re-infection will be different than if you had a vaccination. Viral dose from natural infection cannot be controlled. Antigen dose from vaccination can. We know that the vaccine is highly protective. We don’t have the same confidence with natural infections. That’s why people claiming they are immune from natural infection should have an antibody test.
Those are not bad points, but the suit is a good one to establish how GMU approached the matter. The whole point of vaccination is to produce an immune reaction. Sticking a needle in someone is simply a proxy for that. So what was the scope of GMU’s evaluation of human coronavirus immune response? Is it true that some qualifying proxy vaccination has a weaker distribution of expected immune response than natural infection? How do you tell a person at an immunological point “better” on the distribution than someone who took “brand x” vaccine that they will lose their job or you won’t educate them unless they do better, without telling brand x folks they have to do better? As for someone’s else’s complaint that GMU would have to do a lot of hard work in compressed time if they had to really follow the rapidly developing science (my interpretation) I say, heck yes they need to do that. Like I said, how did they decide and what is the control plan? Reduce your headaches by accepting natural immunity until (months or years from now) the data gives an unmistakeable answer to these questions.
Eric, remember, the question here is not did the GMU admin make the best possible decision using the best possible procedure. The question is whether this issue should be constitutionalized. GMU may not have been perfect, but the courts won’t be perfect either. It is far from clear what is gained by substituting one imperfect decision maker for another. What is clear is that pushing controversial questions into the judiciary has the potential to undermine public respect for the courts and support for an independent judiciary. Both liberals and conservatives should think three times before injecting the courts into highly polarized political issues.
If GMU cannot substantiate that they did a serious health assessment including all relevant information and cannot substantiate that they have put into place a robust system to assess new information and revise policy on that basis, then why do you think this suit is mainly constitutional? Not saying they did a half-assed job of it, but exploring that is why I say that the suit is highly useful. I write this now with rumors swirling that boosters for Pfizer and possibly Moderna will soon be the official recommendation of the FDA, so what is the GMU process to evaluate this development? If you are not fully vaccinated because of lacking a booster, would you be fired on day one of your “gap”? Thrown off campus? If not, why not?
A couple of thoughts on the many interesting discussion here on this topic. One discussion many months ago was that there ought to be a deferral for past infections to extend the early vaccine uptake more efficiently. It is pretty clear that there was a belief among some that natural infection was a good as vaccination, at least for some period of time. The news of the booster should reinforce this belief and possibly (probably) strengthen it. Another good conversation was about the assessment of the vaccine trial data at 24 months as part of the normal licensing process. Since doing so would put any normal license well into 2022, the consensus seemed to be “not really needed”. Well the FDA might be on the verge of telling people to take an additional 50% of these vaccines (if only Pfizer and Moderna) and a possible extrapolation is to +100% or even possibly +150% within a 24 month period for millions of people. I expect significant pushback on the idea that issuing a normal license say in the next couple months is going to be well accepted by the public as making mandates okay and, particularly, vaccinating young children. Yes, I do think the FDA is going to have some trouble granting the license if the data is that they skipped typical 24 month clinical trial data review at the same time they recommend cumulative dosages to be much higher.
Some folks are tossing the phrase “immune response” around like it is a single thing. There are two distinct immune responses to viral infections. One is the innate immune response, which relies on pattern recognition molecules that see things like double-stranded RNA and trigger fever and cytokines. The other is the adaptive immune response, which relies on T and B cells responding with specific antibodies and T-cell receptors tailored to the viral proteins. The latter, when sufficiently robust, also generates memory T and B cells that are capable of recognizing and specifically responding to a re-infection by the same virus.
The key to successful herd immunity through vaccination is the consistent induction of high antibody titers over the short term and significant populations of virus-specific memory T and B cells in the long term.
While viral infection *can* elicit a strong adaptive immune response, the dose of the virus makes a big difference in the level of immunity, and cannot be consistent in natural infections. Throughout human history, herd immunity has been achieved by natural infection, often at substantial cost to human health and lives. Herd immunity is also temporary, in that children born after the pandemic do not inherit immunity. Vaccines can achieve herd immunity without the morbidity and mortality associated with natural infection, and the next generation can get the benefit of herd immunity without waiting for the next cycle of infection.
Joel, can we achieve herd immunity if the vaccines are only 60% effective against the strain of the virus that is now circulating? via NYT::
and if those who’ve been vaccinated are spreading the disease?
cause that’s what seems to be happening…the numbers i’ve seen over the past couple of weeks suggest that between 18 and 20% of the current outbreak is among the fully vaccinated….Oregon says it’s 20%; California says it’s 19%; Massachusetts doesn’t give a percentage but says Mass. reports 2,232 new breakthrough COVID-19 cases in past week — Massachusetts public health officials reported 2,232 new COVID-19 breakthrough cases in fully-vaccinated people in the past week, data from the Department of Public Health shows. …while they’re averaging just over 1000 cases a day…
if we have just over half of the population fully vaccinated for over two weeks (the criteria for breakthrough), and the fully vaccinated are 40% unprotected as the British study suggests, that fits the 20% breakthrough numbers nationally that i’ve been seeing..
so if this is the case, the widespread vaccine mandates are unlikely to give us that herd immunity that you seek.
and that’s just against Delta…we still haven’t dealt with Epsilon or Lambda, which are supposedly resistant to current vaccines…we could end up playing vaccine whack a mole with Covid mutants from now til doomsday if this is our sole policy response..
NB: my comment has nothing to do with the subject of this post…it’s a tangent that didn’t even consider anything other than Joel’s comment…i’m neither a lawyer or a doctor so addressing what Eric’s post is about is above my paygrade..
Eric
Somehow, I deleted you.
Bill
@rjs,
There is much interest in boosters for existing vaccines, either another dose of the same or a booster that includes the Delta variant spike protein. I’ve been in the Moderna Phase III trial for over a year and asked about a booster, but they are not yet offering one to subjects.
I haven’t seen any data on any variants that “are supposedly resistant to current vaccines” in vaccinated human subjects. Got a link? I have seen an unreviewed online manuscript describing a highly artificial cell-based assay using sera from a few vaccinated people, which is far from viral epidemiology.
Joel, this is a heavily linked Aug 5 article that i’m pasting plain text to avoid moderation:
in addition, almost since the vaccine rollout began, there’s been a spate of articles suggesting they were less effective against the Brazilian variant (P1) and the South African strain..
speaking of this, by using a vaccine that’s only partially effective, are we not setting up a natural selection process such that the virus mutations that most effectively evade the vaccines are those that survive and multiply and eventually become the dominant strains…are we not, in effect, enhancing the virus’s capabilities?
I think you all are missing a point: “we” do not have a “right” to force someone to be inoculated. but no one has a “right” to force himself on people who don’t want his presence among them.
i hope that doesn’t sound like i am endorsing segregation by race.
it would be a mstake to try to enforce a “logical” consistency here. the two issues are different. we are often told that no one has a “right” to drive a car, even though it would be seriously inconvenient for him not to be so allowed. “we” do have a right to protect ourselves from dangerous behavior. in the case of vaccines and masks, “we” still have a right to protect ourselves from what we regard as dangerous behavior…but masks and distancing provide that protection. in the case of dangerous drivers, we can take away his right to drive without invading his “right to bodily integrity.” in the case of racial segregation, I think we can agree that no one had a serious case that their life was endangered by requiring integration while a case can be made that blacks, and the nation, were seriously harmed by segregation.
here i admit there is plenty of room for people to argue about just whose ox is being gored the worst, but i have some confidence we can, or could, find a “reasonable” place to draw the line…or “a'” line that worked … and left sane people reasonably secure that the rights that matter … really matter… to them will not be endangered by either the government or by the people who think they are above all and any government restriction of their “rights.”
the “scientific” questions are irrelevant.
science (or “Science”) changes from day to day. what was yesterday’s “everyone knows” beomces today’s “oops.” we are (perhaps) beginning to see that vaccination does not prevent carrying and transmitting the virus. it may (or may not) reduce the level of risk, but the law is not or should not be about “what is best for the majority” but what is “right” for everyone. today’s majority may well be tomorrow’s minority.
even a minority of one.
i can’t guarantee there will never be an injustice or a “public emergency,” but i think that by keeping it in mind, we can learn to sail between Scylla and Charybdis without crashing on the rocks every time the wind blows from another direction.
rjs
thanks for keeping us honest.
i should have said that science must change, as well as does change, if it is to be science and not yesterday’s superstition.
i think the answer to your question is probably yes. what i think does not matter. as we learn more we may have to change how we respond.
but i insist that that “how we respond” is a question of morality… and political safety… and we need to protect ourselves from a religious devotion to what we believe is “science.”
@rjs,
“more resistant to vaccines than the initial COVID-19 strain.”
“More resistant” is not the same as “resistant.” The vaccines *still work* against the Delta variant, even though it is “more resistant.” Looks like the latest variant fall into the category of “more resistant” as well.
Words matter. If you tell people the virus is “resistant” to vaccines, they will reasonably question the value of vaccination. If, instead, you tell the the truth, that the latest variants are more resistant than the original virus but that all the evidence to date shows that vaccination is still protective, the reason to question vaccination disappears.
Joel, to be clear, i am not anti-vax or even a vaccine skeptic; just last week i advised a friend “you’d better get vaccinated” with appropriate concern…i encouraged my family, including my nephew and sister who already had Covid early this year, to get vaccinated as well…my personal discussions are different than the concerns i raise here..
like many of you, was happy to see the cases counts fall rapidly as the vaccine rollout gathered speed, and even stopped checking the totals daily for a while…but as run could tell you, i became concerned when i saw that the UK case count had quadrupled and then quadrupled again a matter of a few weeks, given that the UK vaccine penetration in the US has been greater than in the US…and with the US seeing a 950% increase in the 7 day average since June 26 and again accounting for 20% of new cases globally, i think it’s time to raise the alarm here too…
@rjs,
I don’t know where you get your news, but from what I’ve seen, the alarm has been raised here too. By Fauci. By Collins. By Biden. By the CDC.
The alarm has been raised in hot spots like Florida and Texas too, where lots of new cases, hospitalizations and deaths are occurring, but where the GOP governors and legislators put politics before science and medicine.
The problem isn’t that the alarm hasn’t been raised loudly and by credible people. The problem is that not enough people believe they have a civic responsibility to get vaccinated, mask and social distance, not just for their own sake, but for the sake of others and to prevent the next variant. People prefer to sneer at scientists and attack the messengers. Sad.
Joel:
Yes indeed. And we are still at the beginning of developing vaccines or a vaccine.
many of you will think this is “off topic.” i think you would be begging the question.
you feel that the topic is “overcoming resistance to vaccination.” i think the topic is “limiting what we let our political feelings lead us to do to each othrer.”
so… recent posts have dealt with the need to remove statues of Robert E Lee because he fought to preserve slavery. There is evidence that this is not true. I think that he might have fought for another reason that deserves consideration: Lee decided, with some agony, that he could not shoot his family, friends, and neighbors, but that he could shoot at people who were trying to shoot at his family, friends, and neighbors…even if said family etc were fighting for a wicked cause. He could have, and probably did, believe that slavery and secession were wrong. But those wrongs weighed less in his mind than loyalty to family (etc). Remember that he fought in the Mexican War, which was arguably as wicked as fighting to defend slavery. Lee was a soldier…educated to follow orders and be loyal to his “country.” [“my country, right or wrong.”] But “country”, before secession, was the same as “home.” Even after secession his country was legally the new country that seceded from the old, still “home and family.” [George Washington fought for his new country, not his old country.]
You might not agree with this, but a reasonable understanding of your own mind, and a decent respect for the minds of others, would suggest you consider that it might be true.
And might lead you to look for another way to protect yourself from covid than “forcing” people to let you inject them with what they regard as a dangerous substance. Since what they believe is mostly determined by what people tell them….same as what you believe… persuasion might be a better tool than force…especially considering the consequences….effective civil war on the one hand, or government with unlimited power on the other.
Kramer says
“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.”
It is incredible to me that Kramer fails to see that “the cost to him is trivial” is what is at issue, legally, politically, and morally. I have no right to decide what is or is not “trivial” to you.
He also fails to see that the Court IS “politicied.” not merely as to “political party” but as a matter of law: it is an institution designed to determine what is politically allowable and what is not.
His argument disolves into “what i believe is important is what matters. what you believe is trivial.”
Not to put too fine a point on it, scientists, immunologists and virologists *never claimed* that the vaccine would *prevent anyone* from getting secondary infection. To the extent that people assumed that claim, they may have been influenced by the popular press (which is not science) or their own naive assumptions about what they were reading. We need to protect ourselves from a religious devotion to what we believe is “science” but is really just the projections of people who are not scientists and are confused, frustrated or angry at scientists because they don’t actually understand the data.
As a scientist and someone who got the first Moderna shot over a year ago, I understood the importance of continued masking and social distancing. I still practice both measures, and recognize that they don’t mean the vaccine or science failed. For those who are frustrated by the fact that the vaccines are not an impermeable shield against infection, I encourage you to read the current and emerging data. Google is your friend. Be safe.
Joel, here’s an article from yesterday:
as we know, most of those who get Covid after vaccination have mild or asymptomatic cases… this is supposedly the most common symptom for the vaccinated who are infected:
that’s from June but the story was all over at that time; i leave it to you to decide if our policy response (or lack of it) has been appropriate since…
Joel says
” all the evidence to date shows that vaccination is still protective, the reason to question vaccination disappears.”
or remains, as the case may be.
Joel,
just for the record: i do not sneer at science or scientists. i do insist that people who cite “science” the way others might cite “the bible” are not acting as scientists.
and i am generally not impressed with “scientists” who talk outside their own specialty as if being “a scientist” made them an expert in everything. and am especially leery (not sneery) of people who give “science” as a reason for violating human rights.
if you have a problem with “people who don’t believe…” I suggest you direct your ire at the politicians and “entertainers” (fox news et al) who tell them not to believe. your problem is that right now the “people who don’t believe” trust the entertainers and politicians more than they trust you.
Coberly:
Why is it his problem? It is our problem and “you” with your noise only make it worse.
Run,
Joel said, “The problem is that not enough people believe they have a civic responsibility to get vaccinated, mask and social distance, not just for their own sake, but for the sake of others and to prevent the next variant. People prefer to sneer at scientists and attack the messengers. Sad.”
Sounded to me like he had a problem with the people. I suggested the real problem was with the prominent liars who are telling the people what to believe. Do you have a problem with that?
I have to admit I have a problem with people who can’t read all the words once they get the idea that someone is disagreeing with them. Then they just see red and hear noise.