Tolerance For The Unvaccinated

It’s hard to comprehend why anyone who could get the vaccine would not. That may be because I’m a lawyer, and know only what I’ve read about its efficacy even though my family and I have made the decision to be fully vaccinated. It’s hard to explain why so many people in health care have chosen not to, although I’ve been told they have a far greater fear of unknown side effects than most. Some will chalk it up to right wing ideology, but that’s inaccurate and serves only to validate the intolerant of the left.

There are an array of reasons why people decide against getting vaccinated. There are the conspiracy theory nuts and there are people who have weighed the costs and benefits and chosen against it. And there are some for whom the practical barriers remain a reason, although like blaming MAGA nuts, it’s exaggerated as a universal excuse for the marginalized cohort just as Trumpkin lunacy is exaggerated to blame the wingnuts.

Reasonable people have chosen not to get the vaccine. I disagree with them, but then, they disagree with me.

But Todd Zywicki, George Mason University law prof, Volokh Conspirator, has raised an interesting challenge to his college’s mandate of “vaccines or masks or else.”

Last year I volunteered to teach in person, even though I’m in my 50s. Teaching law is my job and I owe my students my best. I also knew I could do it safely. During the spring of 2020 I contracted and recovered from Covid-19, which I later confirmed through a positive antibody test. Multiple positive antibody tests have since confirmed that I continue to have a robust level of immune protection.

But now my employer, a state institution, is requiring Covid vaccines. In my case, vaccination is unnecessary and potentially risky. My only other options are to teach remotely or to seek a medical exemption that would require me to wear a mask, remain socially distanced from faculty or students during, say, office hours, and submit to weekly testing.

Todd had Covid-19. He argues that his natural immunity, the antibodies developed from having suffered Covid-19, are at least the equivalent of the vaccine, and are likely better than the vaccine. He adds that since the vaccine was never tested on people who already have natural immunity, the potential for unknown side effects is significant.

Clinical studies from Israel, the Cleveland Clinic, England and elsewhere have demonstrated beyond a doubt that natural immunity to SARS-CoV-2 provides robust and durable protection against reinfection comparable to or better than that provided by the most effective vaccines. Examining the evidence this May, the World Health Organization concluded: “Current evidence points to most individuals developing strong protective immune responses following natural infection with SARS-CoV-2.”

Todd isn’t arguing against getting vaccinated, per se, and certainly isn’t trivializing the damage of contracting Covid. Indeed, he made clear that when he had it, it was terrible and, as a Covid-19 survivor, realizes far more than those who were never infected what a dangerous virus it is.

The point of the lawsuit is that there is no rational justification for a vaccine mandate that fails to create a carve-out for people with natural immunity, and instead seeks to compel them to get vaccinated even though it’s neither necessary nor proven safe.

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.

It’s hardly a frivolous argument. It’s certainly not an argument against vaccination or in disregard of public health. And yet the reaction to the suit has been vitriol and outrage.

There is the flip side to George Mason’s policy, that if someone prefers not to get vaccinated, for whatever reason, just wear a mask. What’s the big deal?

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.

Many people really hate wearing masks. Others basically ridicule them for it, because if one person passionately believes it’s no big deal, no one else can feel otherwise without being awful. I’m no fan of masks, although I don’t find them to be so difficult to endure that I won’t wear one if need be. When I twitted something along these lines, I was vehemently attacked by some on the left for even hinting that wearing a mask wasn’t the easy and fun, because no one can say anything that might dissuade people from wearing masks.

Todd makes a strong argument in favor of allowing natural immunity to serve as the equivalent of a vaccine for the purposes of the George Mason policy. It might present some difficult twists in determining who has it, but there are tests and the burden could be placed on those claiming natural immunity to prove it. It adds some administrative difficulty, but what doesn’t?

The question of whether the complaint establishes that the alternative to being vaccinated, wearing a mask, is a sufficiently onerous burden as to give rise a legally cognizable issue. De minimis no curat lex, and when it comes to masks, de minimis is in the eyes of the mask wearer, I suppose. I fully appreciate that many people find wearing masks to be a burden. I remain unconvinced that the burden is sufficient to give rise to a constitutional violation.

But where is the tolerance for Todd? Where is the tolerance for the many people who have sincere questions and doubts? You don’t have to agree with Todd Zywicki’s cause, but the inability to tolerate any dispute in the name of righteousness is why. in the scheme of dangers, you are more insidious than Todd will ever be.