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California professor sues university over vaccine mandate, citing natural immunity
University of California professor Aaron Kheriaty is suing the school’s president and Board of Regents over a COVID-19 vaccine mandate, saying people with natural immunity shouldn’t be required to get the shot. (Aaron Kheriaty / Courtesy)

A University of California professor is suing the school’s president and Board of Regents over a COVID-19 vaccine mandate, saying people with natural immunity shouldn’t be required to get the shot.

Aaron Kheriaty, professor of Psychiatry and Human Behavior at the University of California, Irvine, says he contracted COVID-19 in July 2020. He points to scientific research showing that people infected with COVID-19 develop durable immunity to the virus and argues the university's vaccine mandate is unfair.

“I feel like I'm being treated unequally,” Kheriaty said. “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.”

An Israeli study, which was published last week and hasn’t been peer-reviewed, shows uninfected, vaccinated people are around 6 to 13 times more likely to get a future infection than those who are unvaccinated and recovered from COVID-19. The vaccinated group is also 7 to 27 times more likely to develop a symptomatic future infection than the COVID-recovered group. Several other studies also have pointed to the durability of natural COVID-19 immunity.

Yvonne Willmann, a railway employee, draws up a syringe with the Johnson & Johnson vaccine in a special train of the public transport S-Bahn, in which vaccination against COVID-19 are offered, in Berlin, Germany, Aug. 30, 2021. (Christophe Gateau/dpa via AP)

The University of California does allow a temporary medical exemption for those with natural immunity up to 90 days after a COVID-19 diagnosis and certain treatments. These individuals “are not permanently exempt from vaccination,” according to university policy.

Kheriaty serves as director of UCI's Medical Ethics Program and is a member of the UC Office of the President Critical Care Bioethics Working Group. He said his concerns about the vaccine mandate were received “mostly with radio silence" by university leadership, prior to his lawsuit filing

“Efforts to elicit conversation, discussion, debate on the issue have fallen flat in my experience,” he said.

The University of California Office of the President referred questions about the lawsuit to the University of California Health, which did not respond to requests for comment.

Kheriaty said he filed the lawsuit after hearing concerns about the vaccine mandate from others at the university.

“It became clear to me that if I, as a medical ethicist, didn’t stand up and try to represent those voices, then those folks would be steamrolled by these policies,” he said.

Kheriaty emphasizes that people should feel free to receive the vaccine if they want to — even if they’ve already been diagnosed with COVID-19. “I would be the last person in the world to attempt to dissuade them from that,” he said. “What I’m advocating for is informed consent.”

In a legal brief in Kheriaty's case, several other University of California faculty members also attested to the durability of natural immunity and cited research showing that individuals with a prior infection may experience worse side effects from the shot than if they hadn't already had COVID.

"It violates medical ethics to expose someone to this risk when they have robust, durable immunity that actually neutralizes SARS-CoV-2 upon exposure," the faculty members wrote.

Nearly half of the vaccine-hesitant population says they're concerned about vaccine side effects, according to one recent study. Public health officials emphasize that serious side effects from COVID-19 vaccines are rare and the CDC’s website notes these reports are undergoing review. Two weeks ago, The Washington Post reported that health officials are investigating whether the Moderna vaccine carries a higher risk of myocarditis for young adults than previously believed.

Kheriaty suggests that people — especially those who are young and healthy — should weigh their risks of COVID side effects against their risks of vaccine side effects.

“We reason about risks this way all the time,” he said. “We recognize that there are competing social goods and that we’re always balancing those social goods. And somehow we haven’t been able to apply those ways of reasoning to COVID."

To evaluate vaccine safety, public health experts rely in part on the Vaccine Adverse Events Reporting System, a passive tool which is not designed to capture rates of vaccine side effects, but to indicate areas where scientists should conduct more research in other monitoring systems. Kheriaty notes that it’s possible certain adverse events appear more often in the real world than they do in VAERS, or that a number of adverse events reported to VAERS aren’t actually vaccine-related.

“It’s entirely reasonable for people to look at unknown long-term risks of COVID versus unknown long-term risks of vaccine, or known short-term risks of COVID versus known short-term risks of vaccine, and say, 'The denominators in both these things are very vague,'” he said. “In the face of that uncertainty, I should be able to make my own informed decision.”

He added that he believes people should be allowed to consult with their physician to decide whether or not to get vaccinated.

“The vaccine mandates bypass that whole process of individualized medicine and individualized care,” he said. “And they bypass the process of informed consent that’s so central to good clinical medicine.”

Natural immunity and public health

U.S. public health officials have consistently encouraged people with a prior COVID-19 infection to get the shot. In early August, the CDC published a study showing that people with natural immunity were twice as likely to be reinfected as those who acquired natural immunity and vaccination. "These data further indicate that COVID-19 vaccines offer better protection than natural immunity alone and that vaccines, even after prior infection, help prevent reinfections," the CDC said in its news release.

Other scientists warn that the Israeli study published last week should not be used to encourage intentional COVID-19 infections. “What we don’t want people to say is: ‘All right, I should go out and get infected, I should have an infection party,'" said Rockefeller University immunologist Michel Nussenzweig, according to the American Association for the Advancement of Science. “Because somebody could die.”

Kheriaty says he believes public health officials make people more reluctant to get the shot when they aren't up front about the protection provided by natural immunity.

“The American people are not stupid,” he said. “When people see that public health officials are systematically ignoring important findings or important issues, it has the opposite effect of what the public health officials want. It increases vaccine hesitancy, rather than addressing the concerns of those who are hesitant.”

He said he believes vaccine mandates will produce the same effect.

“That’s going to amplify their concerns,” he said. “People are going to dig in their heels at that point because trust has been broken."

“I worry that the public health approach of not telling the whole truth as a way to try to get the behavioral outcomes that we want might have a few short-term gains, but will have a lot of really negative long-term consequences because of the erosion of public trust,” Kheriaty said.

A hearing on Kheriaty’s request for a preliminary injunction is scheduled for Sept. 27.

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