Universities Face Lawsuits Over Policies That Mandate COVID-19 Vaccine
Michigan State college has to answer in court for its new COVID-19 vaccination mandate that does not exempt individuals who have acquired natural immunity to the SARS-CoV-2 virus after recovering from the infection. The federal class action lawsuit filed by New Civil Liberties Alliance (NCLA) on behalf of a school employee, who was subject to disciplinary measures despite a lab test demonstrating the presence of COVID-19 antibodies, alleges that the college’s policy violates the 9th and 14th Amendment of the Constitution.1
NCLA attorney, Jenin Younes, wrote:
MSU’s refusal to grant naturally immune individuals’ exemptions from its vaccine mandate is unscientific and irrational. Substantial evidence establishes beyond the shadow of a doubt that immunity acquired through infection is superior to that obtained through the best available vaccines, both in terms of robustness and durability.2
The Plaintiff, Jenin Norris, who has worked at the college for eight years said:
In my case, positive antibody tests indicate I have naturally acquired immunity from a previous COVID-19 infection. For MSU to dismiss natural infection immunity as legitimate protection is completely contrary to science. I want MSU to acknowledge natural immunity as real and equally protective for the many people out there like me.3
The court denied the Plaintiff’s request for a preliminary injunction to temporarily stop the Aug. 31 deadline for the vaccine mandate.
Individuals with Natural Immunity At Risk for Vaccine Adverse Reactions
Immunologist Hooman Noorchashm, MD is helping the Plaintiff and recommends that everyone who plans to get the COVID-19 vaccine get tested for antibodies first because individuals, who recently recovered from the SARS-CoV-2 infection, are more suspectable to adverse reactions and complications, such as blood clots, from the shot.
Dr. Noorchasahm said:
My very specific concern stems from the fact that the SARS-CoV-2 virus is known to accumulate in the inner lining of blood vessels—the so-called endothelium. So, if a person with a recent or active COVID-19 infection is vaccinated, the highly effective and antigen specific immune response incited by the vaccine will, very likely, attack the inner lining of the blood vessel and cause damage, leading to blood clot formation.4
George Mason University Professor with Natural Immunity Granted Exemption from COVID-19 Vaccine Mandate
The NCLA previously sued George Mason University in Fairfax, Virginia when a similar policy requiring across the board mandates, even when an individual has natural immunity, threatened a law professor’s teaching job. The Plaintiff, Todd Zywicki, who provided multiple lab tests showing that he had COVID-19 antibodies, was advised by his doctor that the vaccine would be medically unnecessary and that it would be a violation of his medical ethics to order the vaccine for him. In this case, George Mason University granted the professor an exemption from the vaccine mandate allowing him to continue teaching, hold office hours, and go to in-person events as long as maintained a socially distanced six feet apart from others and tested for COVID-19 once a week.5
Zywicki said:
I am gratified that George Mason has given me a medical exemption to allow me to fulfill my duties this fall semester in light of unprecedented circumstances. Thanks to NCLA, we have increased public awareness that vaccinating the naturally immune is medically unnecessary and presents an elevated risk of harm to COVID-19 survivors. I speak for tens of millions of Americans in the same circumstances I am in, and I call on leaders across the country to develop humane and science-based approaches as opposed to one-size-fits-all policies.6
University of California Medical Ethicist Professor Files Lawsuit Over COVID-19 Vaccine Mandate for Employees with Natural Immunity
In another case across the country, Aaron Kheriaty, MD, a medical ethicist professor at the University of California, Irvine filed a lawsuit over the school’s vaccine mandate requiring him to get the vaccine despite gaining natural immunity after having had the viral infection.7 The university’s current policy allows only a temporary 90-day vaccine exemption to those who have had COVID.8
Dr. Kheriaty stated:
I feel like I’m being treated unequally. If my immunity is as good, indeed, very likely better, than that conferred by the vaccine, there doesn’t seem to be any rational basis for discriminating against my form of immunity and requiring me to get a different form of immunity.9
A legal brief prepared by faculty members in support of Dr. Kheriaty’s case presented research showing that the most serious adverse events following vaccination occurred in people who had already had the virus. They wrote, “It violates medical ethics to expose someone to this risk when they have robust, durable immunity that actually neutralizes SARS-CoV-2 upon exposure,”10
Israel Researchers Find Naturally Acquired immunity Is Far Superior to Vaccine Acquired Immunity
Researchers at the University of Tel Aviv in Israel conducted a retrospective observational study of 800,000 people over approximately six weeks and determined that those who had reovered from COVID-19 fared significantly better against the Delta variant than those who received the COVID-19 vaccine. In fact, the vaccinated individuals were 13 times more likely to come down with the Delta variant than those who had already been infected with the virus.11
However, the study also found that those who had the virus and one dose of the vaccine had greater protection against the Delta variant than those who had been previously infected but did not get vaccinated. Certain countries including Israel, Germany, Italy and France are administering just one dose of the vaccine to those who have already had the virus.
Another Study Shows Natural Immunity Lasts for Up To One Year But Vaccine Acquired Immunity Wanes a Few Months After Second Dose
Michael Nussenzweig, MD, an immunologist not affiliated with the Tel Aviv study published data demonstrating that those with natural immunity from COVID-19 produce more COVID-19 targeting antibodies for up to one year post illness while those with vaccine immunity, “stop seeing increases “in the potency or breadth of the overall memory antibody compartment” a few months after their second dose.”12
The study was limited by the fact that testing for COVID-19 was not required and it’s possible that some of the previously infected individuals may not have gone for COVID-19 testing again if they only presented with mild symptoms.
CDC Study Shows Unvaccinated Had Higher Chance of Reinfection Compared to Vaccinated
In contrast, a 246-person case study put out by the U.S. Centers for Disease Control and Prevention (CDC) looked at reinfection rates of individuals who previously had COVID-19 in 2020 during the months of May through June 2021. The study, looking at reinfection rates, showed that those who did not get the vaccine had a 2.34 higher chance of reinfection than those who were vaccinated.
The study compared reports of individuals over the age of 18, who tested positive for COVID-19 in Kentucky’s National Electronic Disease Surveillance System from March through December 2020, and then again during the time period of May 1 through June 1, 2021, to individuals who had positive COVID-19 tests in 2020 but were not reinfected. The study compared people who initially tested positive about the same time and were the same sex and approximately the same age.13
The study is limited by a number of factors including the fact that reinfection testing did not include whole genome sequencing, which means the reinfection could have been caused by a different virus than the initial infection or positive reinfection results could have come from failure to clear the first virus or viral shedding from the initial virus. Other potential limitations include incompatibility of the two databases used in the study; out of state testing or vaccination was not considered, and the fact that vaccinated individuals are less likely to obtain a COVID-19 test, which could lead to overinflated numbers of the unvaccinated testing positive.14
Study of COVID-19 Patients in Seattle and Atlanta Found Durable Immune Memory Persists Even After Mild Disease
Another study, an in-depth longitudinal study looked at natural immunity after a COVID-19 infection of 254 patients in Seattle and Atlanta over 250 days found that, “durable immune memory persists in most COVID-19 patients, including those with mild disease, and serves as a framework to define and predict long-lived immunity to SARS-CoV-2 after natural infection.” The study was limited by only looking at patients with mild to moderate symptoms (as over 80 percent of cases present) and did not take into account those with no symptoms or extreme presentations of the virus.15
Monica Gandhi, MD, infectious disease specialist looking at these conflicting studies with regard to the pending court cases, concluded, “When there is so much mixed data, I don’t think you could prove that it’s medically necessary to get a vaccine after a natural infection.”16
She and others point out that, without being able to prove that it is medically necessary for individuals who have recovered from the virus to get the COVID-19 vaccine, it may be difficult for a University to justify a one size fits all COVID-19 vaccine mandates for all employees and students.
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