- AMERICAN INSTITUTE FOR ECONOMIC RESEARCH - AUG 7, 2021 - Ethan Yang -
Imposing a constitutionally dubious vaccine policy at a public university that not only has some of the top classical liberal law professors in the country but is also intimately connected with a global network of freedom advocates is a recipe for a lawsuit. That’s exactly what George Mason University learned recently when it imposed a school-wide vaccine mandate for students, faculty, and staff. Failure to comply subjects individuals to a list of penalties from social distancing requirements to potential disciplinary action.
The plaintiff is Todd Zywicki, the George Mason University Foundation Professor of Law, who has as impressive of a resume as anyone can imagine. He has held positions at numerous influential think tanks, executive positions in the federal government, and has taught at numerous respected law schools. His lawsuit is joined by the New Civil Liberties Alliance, a non-profit law firm dedicated to advancing constitutional freedoms and founded by the prominent legal scholar Philip Hamburger. AIER contributor Jenin Younes is also a member of their litigation team and one of the attorneys on this case.
Zywicki names the president of the school and numerous other officers as the defendants in his suit Zywicki v Washington. He alleges that as a public institution, GMU is obligated to follow the Constitution and its vaccine policy violates the 9th and 14th Amendments as well as the Supremacy Clause. Zywicki contends that his natural immunity from having recovered from a natural Covid-19 infection gives him equal if not superior protection than vaccines. His sentiments are supported by his immunologist, who informed him that receiving a vaccine would be “medically unnecessary”, as well as a joint declaration from Dr. Jay Bhattacharya and Dr. Martin Kulldorff, prominent medical professors at Stanford and Harvard respectively. They write that,
“Multiple extensive, peer-reviewed studies comparing natural and vaccine immunity have now been published. These studies overwhelmingly conclude that natural immunity provides equivalent or greater protection against severe infection than immunity generated by mRNA vaccines (Pfizer and Moderna).”
The declaration, found in Exhibit A of the docket, also explains that the evidence to support mitigation measures such as vaccine mandates and passports is lacking.
Count 1: Violation of the Right to Refuse Unwanted and Medically Unnecessary Healthcare
The plaintiff asserts that GMU’s vaccine policy, in practice a mandate, and refusal to acknowledge the merits of natural immunity are problematic because they violate his right to refuse unnecessary healthcare. The complaint states,
“The Supreme Court has recognized that the Ninth and Fourteenth Amendments protect an individual’s right to privacy. A “forcible injection … into a nonconsenting person’s body represents a substantial interference with that person’s liberty[.]” Washington v. Harper, 494 U.S. 210, 229 (1990).”
The 9th Amendment protects unenumerated rights, which are those that are not explicitly stated in the Constitution. The 14th Amendment protects due process and equal protection under the law. The Covid-19 vaccine is currently deployed under the Emergency Use Authorization and citizens are therefore entitled to be informed of their right to accept or refuse. This fact, combined with the plaintiff’s already robust natural immunity and unlikeliness to infect others with a relatively mild disease, renders such a mandate a violation of privacy.
Furthermore, established case law enshrines the right to bodily integrity. The suit asserts,
“Coercing employees to receive an EUA vaccine for a virus that presents a near-zero risk of illness or death to them and which they are exceedingly unlikely to pass on to others, because those employees already possess natural immunity to the virus, violates the liberty and privacy interests that the Ninth and Fourteenth Amendments protect.”
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