Free Zywicki!

Todd Zywicki

by James A. Bacon

Virginia is now in full-blown panic mode over the Delta variant and the rebound in confirmed COVID-19 cases. The Center for Disease Control and Prevention has designated a majority of Virginia localities as “high COVID transmission areas,” and media are reporting outbreaks everywhere from child care centers to summer camps. Cities, universities and employers across the state are enacting mask and vaccination mandates. Governor Ralph Northam is “actively considering” a similar mandate for state employees. 

Against this backdrop, a George Mason University law professor, Todd Zywicki, has filed a lawsuit challenging the university’s vaccine mandate. Zywicki contends that he would have gotten vaccinated had he not already contracted and recovered from COVID-19, reports The Washington Post. But his immunologist says he has a strong natural immunity to the virus, as confirmed by positive antibody tests, and he objects to being coerced.

“I would rather rely on the advice of my doctor,” Zywicki said, “than mid-level bureaucrats at Mason who are designing a one-size-fits-all solution.”

I have been advancing a similar argument for some time now. While mask and vaccination mandates may be legally and morally justifiable in order to protect the public health, the goal should be to make them as non-intrusive as possible. None of Virginia’s mandates allow exemptions for COVID survivors, who ample scientific evidence shows have naturally acquired immunities.

Zywicki’s lawsuit, filed in the U.S. District Court for eastern Virginia provides the most comprehensive argument I have yet seen for exempting COVID survivors from the mandates. I don’t necessarily endorse Zywicki’s views — I would like to see the medical arguments against them before drawing hard conclusions — but I think it important to air them. Remember, his case is not an isolated one. The Virginia Department of Health COVID-19 dashboard has documented more than 700,000 confirmed cases, which is undoubtedly an undercount. Mask and vaccination mandates potentially affect hundreds of thousands of Virginia COVID survivors.

Zywicki’s case. Zywicki fell ill in early March 2020 with symptoms consistent with a COVID-19 infection, including chills, night sweats, fatigue and mental fogginess, according to the lawsuit. He subsequently tested positive for COVID-19 antibodies when donating blood at the American Red Cross on four occasions from July 2020 through May 2021.

In June this year he consulted Dr. Hooman Noorchashm, an immunologist, who prescribed a full serological screening. The results confirmed that his antibody reading was “comparable to that possessed by vaccinated persons who share his age and health profile.”

In late June GMU officials distributed an email requiring all employees to share proof of vaccination by August 1 or “receive one dose of a World Health Organization (WHO) approved vaccine by August 14, 2021.” Employees who do not obtain a work-at-home or religious exemption must wear masks, practice physical distancing and undergo frequent COVID-19 testing.

GMU’s policies, according to the lawsuit, were led by David Farris, executive director of safety and emergency management, and Julie Zobel, vice president of safety emergency and enterprise risk management. Neither has any medical credentials.

On July 23, Zywicki applied for an exemption on medical grounds, arguing that the vaccine posed a risk of harm due to his naturally acquired immunity. A week later, GMU denied the exemption. Stated the GMU response: “Mason is not currently exempting individuals who previously had COVID-19 from the vaccination requirement as such an exemption is not consistent with the guidance issued by the CDC.”

What Zywicki says the science says. None of the three vaccines approved for emergency use in the United States has been tested in clinical trials for its safety and efficacy on individuals who have recovered from COVID-19, states the lawsuit. Indeed, trials conducted so far have specifically excluded survivors of previous COVID-19 infections.

Recent research indicates that vaccination presents a heightened risk of adverse side effects — including serious ones — to those who have previously contracted and recovered from COVID-19. …

The heightened risk of adverse effects results from “pre-existing immunity to SARS-Cov-2 [that] may trigger unexpectedly intense, albeit relatively rare, inflammatory and thrombotic reactions in previously immunized and predisposed individuals.” …

Multiple extensive, peer-reviewed studies comparing naturally acquired and vaccine acquired immunity have concluded overwhelmingly that the former provides equivalent or greater protection against severe infection than immunity generated by mRNA vaccines (Pfizer and Moderna). These studies confirm the efficacy of natural immunity against reinfection of COVID-19 and show that almost all reinfections are less severe than first-time infections and almost never require hospitalization. … A CDC/IDSA clinical call on July 29, 2021, summarized the current state of the knowledge. … “The protecting effect of prior infection was similar to 2 doses of a COVID-19 vaccine.”

The implication of the research is that naturally acquired immunities confer more protection than other WHO-approved vaccines — permitted by GMU — such as the Chinese Sinovac Vaccine or Sinopharm Vaccine.

There is an open scientific question as to whether naturally acquired immunities degrade more quickly than vaccination-acquired immunities. Israeli data, says the lawsuit, suggest that the Pfizer vaccine protection is short-lived compared to that conferred by natural immunity. In fact, it suggests, the recent resurgence in infections may be attributable as much to the waning effects of the Pfizer vaccine as to the spread of the Delta variant. An analysis of an outbreak among a small group of mine workers in French Guiana found that 60% of fully vaccinated miners suffered breakthrough infections compared to zero among those with natural immunity.

Bacon’s bottom line: Some have argued that uncertainty about the longevity of naturally acquired immunity justifies the vaccine mandates. But, as the lawsuit argues, that is specious logic. We don’t know how long the vaccinated immunities last. Indeed, Pfizer is already suggesting that a third-shot booster may be advisable.

As I have with the University of Virginia, I call upon George Mason University to present the scientific basis for refusing to exempt COVID survivors from its vaccination mandate. Simply citing CDC guidelines is a copout. They are guidelines, not mandates. UVa has spurned Freedom of Information Act requests for documents that would illuminate the basis for its decision. It will be interesting to see how GMU responds to Zywicki’s lawsuit. Offering no response beyond “the CDC made me do it” does not inspire confidence.