Medical Ethicist Sues the University of California, Irvine over Vaccine Mandate

Mandating vaccination for the naturally immune is unconstitutional and militates against common sense and scientific consensus

The University of California, Irvine, where I teach, mandates that all students, faculty, or staff members are “required, subject to limited deferrals, exceptions, and associated non-pharmaceutical interventions, to be fully vaccinated against Covid-19 before physically accessing the University’s Locations and Programs.” The most generous of those deferrals is a 90-day grace period for community members who have recovered from Covid-19, during which time they may be present on campus but are expected to get vaccinated. 

Aaron Kheriaty, professor of Psychiatry and Human Behavior at the UCI School of Medicine and director of the Medical Ethics Program at UCI Health, and Arc Digital contributor, has filed a lawsuit against his university, arguing that the policy violates his and others’ rights under the 14th Amendment’s equal protection clause.

“In enacting this policy,” the complaint reads, “the University is treating naturally immune individuals differently from individuals whose immunity was created by one of the Covid-19 vaccines.”

Under the Supreme Court’s current jurisprudence, constitutional rights such as equal protection may be violated only when the standards of “strict scrutiny” are met—that is, when a compelling government interest is being pursued by the least restrictive means. In the case of UCI’s vaccine mandate, differential treatment would be justified only if natural immunity—that which arises naturally when our immune systems fight off the virus—were less robust than immunity conferred by vaccines.

But precisely the opposite is true: natural immunity is either as efficacious, or more efficacious, than vaccine-conferred immunity. From Kheriaty’s complaint:

In the more than 19 months that the world has been transfixed by the Covid-19 pandemic, evidence shows that the reinfection rate after natural infection is less than 1 percent, and there are no documented cases of reinfection and transmission to others by naturally immune individuals. In contrast, Covid-19 vaccination in the optimal setting of a clinical trial has, at best, an estimated 67 percent to 95 percent efficacy (depending on the Covid-19 vaccine and the variant of the virus) and the vaccine manufacturers and public health agencies have made clear that booster doses will likely be needed, due to waning immunity created by the vaccines. Likewise, recent United States Centers for Disease Control and Prevention (“CDC”) studies have been replete with reports of so-called “breakthrough cases” where individuals are infected after they are fully vaccinated. Dr. Rochelle Walensky, Director of the CDC, and Dr. Anthony Fauci, Director of NIH’s NIAID, have explained that the amount of virus in those individuals’ noses is the same as the unvaccinated who have Covid-19. This has led to the CDC’s revised guidelines recommending a return to masks for those who have been vaccinated and experts to conclude that “vaccination is now about personal protection” because “herd immunity is not relevant as we are seeing plenty of evidence of repeat and breakthrough infections.”

UCI’s policy cannot survive the strict scrutiny standard. “Even though a government entity has a compelling government interest in preventing the spread of Covid-19,” Kheriaty argues, “that interest is not furthered by compelling Plaintiff to be vaccinated to satisfy this interest because he is already naturally immune and, unlike the vaccinated, if exposed to the virus, has neutralizing immunity.”

A genuinely science-based vaccine policy would exempt anyone who has recovered from Covid-19. Whatever extra protection vaccination adds to such individuals, and there is little indication it adds much at all, vaccination poses unnecessary risks to them.

Studies have found that naturally immune individuals have significantly higher rates of adverse reactions when receiving the Covid-19 vaccine. For example, Raw, et al. reported that among 974 individuals vaccinated for Covid-19, the vaccinated Covid-19 recovered patients had higher rates of vaccine reactions. Mathioudakis, et al. found the same result in a study of 2,002 individuals vaccinated for Covid-19. Krammer et al. found the same result in a study of 231 volunteers vaccinated for Covid-19, concluding that, “Vaccine recipients with preexisting immunity experience systemic side effects with a significantly higher frequency than antibody naïve vaccines.” In a paper published by Bruno, et al. the authors pose urgent questions on Covid-19 vaccine safety, highlighting the high number of reported serious adverse events and the shortcomings of the clinical trials, including the exclusion of those with prior Sars-CoV-2 infection.

While the scientific community has much to learn about adverse reactions to the vaccines, the facts relevant to Kheriaty’s suit speak in favor of seeing natural immunity as at least equal to, and probably superior to, vaccine-conferred immunity.

Although one never knows what phantasmal principles can be found lurking in the tentacular penumbras of the Bill of Rights, it is unclear how a judge could reasonably deny Kheriaty’s requested injunction.

Why did the university—whose leadership possessed the relevant facts about immunity, as internal official emails suggest—move forward with such a baldly unconstitutional and anti-science policy?

(Yes, “anti-science” is the correct term: that's what it means to be familiar with the specific shortcomings of vaccines vis-a-vis natural immunity and nevertheless move forward with a policy that is based not on hard science but on other considerations.)

The charitable answer is that UCI’s leadership must be disoriented by the CDC’s incoherent guidance, which often militates against the agency’s own research.

However, the cynic in me believes that the policy suits the political vanity of UCI’s bureaucrats. Progressive elites have transformed vaccination status into a badge of regime loyalty and a signifier of one’s hygienic virtue. If major institutions were to acknowledge that natural immunity is more robust than that conferred by vaccines, thereby acknowledging that vaccination is unnecessary for at least a quarter of the adult population, elites lose a moral cudgel. 

It is also possible that policymakers (at UCI and elsewhere) with genuinely good intentions may fear that being too forthcoming about the science risks discouraging individuals who should get vaccinated from getting the shot. Strategical dishonesty or omission seems justified if it results in more people getting vaccinated, and thus more lives saved.

Whatever motive is driving UCI’s policy, its consequences are troubling. As with so many other policy failures during the pandemic, dishonest or incoherent mandates and guidelines damage the credibility of public health officials and reduce trust in the science that produced vaccines that are nothing short of miraculous. Even worse: by seeking to arbitrarily suspend civil liberties, policies such as UCI’s threaten the rule of law.

We should applaud individuals like Aaron Kheriaty who are willing to risk career and reputation to call injustice and incompetence on the carpet.