In the United States, a rare left/right consensus has emerged in support of the proposition that it is now urgent for all Americans to receive the COVID-19 vaccine. COVID-19 czar Anthony Fauci excoriates those who resist the vaccine by noting that polio would still exist in the United States if the spread of “false information” had existed decades ago. Fauci, like many others, is concerned about the increased risk to unvaccinated individuals from the rapid spread of the highly transmissible delta variant of the virus. His plea has been emphatically endorsed by Senator Mitch McConnell, who insisted that the problem “is not complicated”: 97 percent of those currently hospitalized for the disease are unvaccinated. “If there’s anybody out there willing to listen,” the senator stated, “get vaccinated.”

Would that it were so simple. Of course, vaccinations are responsible for saving many millions of lives, costing very few. But the strength of that conclusion depends on distributing the vaccine in the right way to the right parties, which makes the situation more complicated than either Fauci or McConnell admits. Not all unvaccinated individuals have an equal risk of getting the virus, given that some have natural immunities and some do not; furthermore, not all individuals have an equal tolerance for the vaccine. One pressing question involves whether individuals who have previously had the disease, and thus have a significant degree of natural immunity, should get the vaccine. For these folks, the vaccine may also come with additional side effects, especially over the medium to long run, and may not confer any additional benefit.

Natural immunity, of course, may not protect against new viral variants. But in principle, the same objection also could be raised against the vaccines, which received their emergency use authorization without completing the exhaustive testing normally required to put any new drug or vaccine on the market. Put otherwise, there is some unknown risk that the vaccines now being distributed will prove ineffective against some forms of COVID-19—if not with the currently multiplying delta variant of the virus, then perhaps with some newer version that has yet to spread throughout the population. In addition, there is a risk that the clinical trials conducted under the emergency use authorization will be unable to detect systemic risk that might emerge only years after the vaccines have been widely deployed.

In all cases of uncertainty, COVID-19 not excepted, two kinds of error are possible: giving treatment where none is required, and not giving treatment when it is required.

These complexities were all in play in the critical US Supreme Court case of Jacobson v. Massachusetts (1905), which held that the general police power of the state, especially with regard to health and safety, is sufficient to justify a compulsory vaccination program against smallpox to advance “the common good,” in the words of the highly influential justice John Marshall Harlan, writing for the seven-member majority. The decision came at a time when infectious diseases were a huge cause of death. Even in an age when economic liberties received extensive protection, the Supreme Court was reluctant to intervene on the question of state regulation of disease at a time when the federal government played little role in the area.

But the particulars of that case should give us pause. First, plaintiff Henning Jacobson was not a putative free rider wishing to take advantage of the vaccination efforts of others. Rather, as Harlan noted, “the defendant refused to submit to vaccination for the reason that he had, ‘when a child,’ been caused great and extreme suffering for a long period by a disease produced by vaccination,” and had observed similar conditions in others. The basic question is whether a forced vaccination program violated his constitutional rights. Harlan scoffed at the possibility that childhood difficulties could carry on throughout life, absent expert testimony reflecting that conclusion.

The consequence to Jacobson for his refusal to take treatment was inexcusably left unstated by Justice Harlan. Jacobson was forced only to pay a $5 fine, an intrusion far less intrusive than the alternatives under consideration during our current pandemic. These include forced vaccination—which has never been practiced—or, more critically, the exclusion of the unvaccinated from other activities and venues, including public schools and workplaces. The latter stricture was eventually approved unanimously by the Supreme Court in Zucht v. King (1922). Speaking through Justice Louis Brandeis, the court nowhere mentioned the serious question of whether any public body could condition access to its facilities on a party’s willingness to surrender its constitutional rights to refuse treatment.  

All of these difficult cross-currents have come together in connection with a dispute that pits my friend, George Mason Scalia Law School Professor Todd Zywicki, represented by the New Civil Liberties Alliance (NCLA), against George Mason University: he has requested to be exempted from the university-wide policy that bars all faculty, students, and staff from being on campus for any purpose unless they verify that they have been vaccinated. The policy subjects them to disciplinary sanctions, including unpaid leave or possible loss of employment, if they are in violation. The policy also notes that GMU “will, of course, approve appropriate exemptions for medical and religious reasons,” without saying how that process will play out. One vital aspect of the GMU policy is that it will not provide an exemption solely because a university member has demonstrated that he, like Zywicki, has obtained a high level of natural immunity from previous exposure to COVID-19.

Zywicki has provided potent evidence for the record. His personal physician, Dr. Hooman Noorchashm, submitted an affidavit that stressed his view that vaccination was medically unnecessary because Zywicki’s experience of contracting and recovering from COVID-19 offered “sufficient and durable protection against reinfection and transmission.” Another affidavit by Professors Jay Bhattacharya of Stanford and Martin Kulldorff of Harvard, both long-time contrarians on COVID matters, concluded, consistent with their general view, “that while vaccines are generally recommended for older individuals, they are not needed for patients with natural immunities.” They further argue in their affidavit that many empirical studies “overwhelmingly conclude that natural immunity provides equivalent or greater protection against severe infection” than immunity generated by the Moderna and Pfizer-BioNTech vaccines now in use. Natural immunity appears especially strong compared with the one-dose Johnson & Johnson vaccine, which is said to be only about 66.3 percent effective against initial infections.

These two affidavits present a strong medical argument in support of Zywicki’s position and assert that it is possible for GMU to both identify and police this significant exception to the vaccine program without creating any public risk. GMU is a public university that unquestionably is required to respect the various constitutional guarantees, especially when the police-power justifications have been given. Thus, Zywicki’s request for an exemption cannot simply be sidestepped because of the supposed evidentiary difficulties in proving his level of natural immunity or the adverse effect of COVID-19 on his medical condition.

A final consideration is that it might be wise not to impose any mandate at all. This view argues that the social case for vaccine mandates is not there. Most individuals will probably get the vaccine because it is in their self-interest to do so. Free riding is not an enticing option, given that it is highly unlikely that everyone else will get the vaccine. At the same time, high-risk individuals have every incentive to make the right choice for themselves, undercutting the need for paternalism. And anyone else who fears exposure will also provide implicit protection to others if they get a vaccine to protect themselves.

These considerations could well reduce the levels of risk at far lower administrative costs than the mandates of GMU and similar programs, which are both administratively expensive and prone to various forms of systematic error. In close cases like this one, there is much to be said for respecting the presumption of liberty, given the serious likelihood that individuals like Professor Zywicki will respond to the risks appropriately. Voluntary sorting is often more efficient than state mandates because it utilizes downstream information.

These arguments have constitutional valence solely because GMU is a state-run institution. In principle, private institutions are free to make their own determinations, but the logic against broad vaccination programs in that context is every bit as strong as within public institutions. In addition, as is increasingly more common, there is an ever tighter interdependence between public and private institutions so that it is no longer as easy for the latter to claim independence from constitutional oversight when the federal government has either by promises or threats “insinuated” itself into private actions. The Zywicki letter raises profound issues of public health policy that require a more nuanced analysis.

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