Vaccine Mandates, George Mason, and the Bill of Rights
2021-08-30 · Guest: Todd Zywicki and Jenin Younes (GMU and New Civil Liberties Alliance) · 52:10
Legal challenge to university vaccine mandate
Bob Zadek interviews Professor Todd Zywicki and attorney Jenin Younes regarding their successful legal challenge against George Mason University’s COVID-19 vaccine mandate. The discussion explores the constitutional right to bodily autonomy, the scientific evidence supporting natural immunity, and the problematic legal precedents often cited to justify government-mandated medical procedures.
Topics: Vaccine Mandates, Natural Immunity, Bodily Autonomy, George Mason University, New Civil Liberties Alliance, Constitutional Law, Jacobson v. Massachusetts, Buck v. Bell
Speakers: Bob Zadek, Todd Zywicki, Jenin Younes
Introduction [00:00]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. Thank you so much for listening this Sunday morning. We are this morning, and always, the show of ideas, never once the show of attitude. Thank you so much for listening this morning.
This morning, our guest is the classic David taking on the equally classic Goliath. Only this wasn’t even a close fight. Goliath caved as soon as David put a rock in his hand. What does this have to do with life in libertarian America? Well, a whole lot. Our guest this morning took issue with his employer requiring that he be vaccinated as a condition of teaching law at his law school. He objected, not because he is an anti-vaxxer—but he will explain his own point of view—he objected because he didn’t have to get vaccinated because he had the COVID virus and therefore he had at least, and we’ll get into it, at least the same level of immunity as if he had been vaccinated.
Therefore, if the goal is not to increase profits for Moderna, Johnson & Johnson, or the like, if the goal is to make sure that this college professor wasn’t endangering students and other faculty members, that danger didn’t exist because of the natural immunity created by having COVID. The university would have none of it, didn’t care about the medical facts. A rule is a rule and nobody gets to violate the rule. Thus, litigation started and as quick as it started, it stopped, and the university conceded the point—but not quite.
You will learn the details of this fascinating, short-lived litigation this morning as I have as our guest the plaintiff in that lawsuit, Professor Todd Zywicki. Professor Zywicki teaches law at George Mason University’s School of Law, the Antonin Scalia School of Law, as most of you know. He has been a guest on our show before and he was the plaintiff in this action. And we have as well Jenin Younes. Jenin was his counsel in this litigation. She is a lawyer with the New Civil Liberties Alliance, a relatively new—thus the name—public interest law firm which has only been around, as Jenin will explain, for a short period of time. You may recall that we have had on our show Professor Philip Hamburger. Phil was one of the founders, perhaps the founder, of the New Civil Liberties Alliance. And here we have already an early case and a beautifully written complaint and a victory of sorts. The reason I say “of sorts” is because the university caved rather than allow the case to establish a precedent. But we will learn about all of the issues. We will learn about vaccination versus natural immunity. We will learn about vaccine passports. We will learn from my two guests who have thought more about this subject than perhaps anybody else that I have ever had on the show. So with that introduction, I’m happy to welcome Jenin and Todd to the show. Thank you so much for being with us.
Todd Zywicki: Thanks, Bob. It’s great to be back with you.
The GMU Vaccine Mandate [02:31]
Bob Zadek: Now tell us, set the stage, Todd. I did a bit, but let our friends hear it from your words. You went to a lot of trouble. The lawsuit was beautifully written, clearly a lot of care went into the lawsuit. Tell us why you went to so much trouble and actually did the somewhat unusual act of suing your present employer. Many people sue former employers because they didn’t want to be fired but they were, but you sued the employer where you had to show up at work every day. So that was kind of gutsy, perhaps. So tell us why you felt it necessary to start the lawsuit and what was the core issue you were trying to create a precedent for?
Todd Zywicki: Well, thanks, Bob. And I want to make clear, suing my employer was a last resort, not a first resort, which is that I was one of the early winners of the COVID lottery. I got COVID first in March 2020. And in July 2020, I got my first positive antibodies test, which is—I’m in my 50s, but I volunteered to teach in person last fall, this is fall 2020, because I felt I owed it to my students to teach in person. A lot of other younger faculty around the university, I know, decided that they would be more fun to teach by Zoom from their beach houses, but I felt it was important to show up and teach my students.
And I knew at that point it was pretty clear that natural immunity was powerful. And so I put my money where my mouth is. I went out, I got an antibodies test, it showed I had antibodies, I taught my students in person all last year, had several antibodies tests during the course of the year that showed I had continuing robust protection against infection. And then it came around to this summer and the university started to make noises that they were going to create a vaccine mandate.
So I contacted an immunologist for a more formal workup, Dr. Hooman Noorchashm, and he wrote me a prescription to get an antibodies test and it showed that my COVID antibodies—and again, antibodies are obviously not the only component of immunity, but for the scientific illiterates who are currently running the country, they can understand antibodies much more than things like T-cells and the like. So I figured if I would spoon-feed them at least this information, they might be capable of understanding it. My antibodies test came back 900 times the baseline level of antibodies, and my immunologist said that my current antibody levels are comparable to somebody who was fully vaccinated right after they were vaccinated, which is an important point in a minute.
So I sent this information to George Mason. First, I asked them, are they going to recognize natural immunity? And they wrote back typical bureaucratic, university bureaucratic garbage. So then that’s when I contacted Jenin and NCLA. We sent them a letter and said, here’s Professor Zywicki’s situation. We attached two medical affidavits, one from my immunologist, Dr. Hooman Noorchashm, and one from the great scholars in Professor Martin Kulldorff from Harvard and Jay Bhattacharya from Stanford, to show it was unnecessary—two things. First, it was unnecessary for me to be vaccinated, and second, that there was an elevated risk of vaccinating me. So we asked them for a response. Instead of them responding to our letter, they simply issued their policy and thus initiated a process where we tried to work with them voluntarily, and at that point, all we could do—we had no alternative but to sue. And so why did I sue? At that point, I felt like I owed it to myself. I felt like I owed it to my principles in not just caving to this malicious and dangerous—I mean, it’s a really wickedly malicious policy that they’re trying to enforce. It’s even more wickedly malicious when it applies to students, but I felt I had no alternative. So at that point, we filed suit and eventually I ended up being given a medical exemption and various other things happened. But that’s how we ended up suing.
Constitutional Claims and Bodily Autonomy [04:57]
Bob Zadek: Now you used the phrase “vaccine mandate” in describing the policy of GMU. “Mandate” obviously presupposes compulsion, mandatory. They weren’t mandating per se that you were vaccinated. So wasn’t it a little harder to attack because they couldn’t compel you to get vaccinated because they don’t have that power over you, even though they are an instrument of the state, they’re an administrative agency? So what exactly were they mandating? What was the compulsion?
Todd Zywicki: Well, the compulsion, Bob, was that—and it was kind of unclear because when they initially announced this policy, they said that anybody who did not comply or get an exemption would be subject to disciplinary process, including possible loss of employment. And so I was in the same position that literally tens of millions of people are in right now in America where their boss is basically giving them an ultimatum: you can either get vaccinated or you can risk losing your job. And at that point, I didn’t think that was a—that’s not allowed for a public agency. And in the end, as I said, they managed to give me a personal medical exemption on very narrow grounds, and they changed the rules for vaccinated people and other sorts of things. But that was the compulsion, Bob, which is that they were forcing me to choose between getting an unnecessary and dangerous medical procedure at the risk of losing my job potentially.
Bob Zadek: Jenin, you get a phone call from Todd at the New Civil Liberties Alliance, and what did you see to be, what was the cause of action? What was the heart of the complaint that you asserted? And what was the support and probably going to end up going all the way up to a constitutional standard? What was the basis on which you felt Todd had a strong cause of action?
Jenin Younes: So we raised several constitutional claims. Since GMU is a state university, they’re subject to constitutional requirements. So there’s a line of case law saying that under the 9th and 14th Amendments to the Constitution, you have a right to bodily integrity and to decline medical treatment. So we argued that GMU’s mandate violated that.
As for why Professor Zywicki had a compelling case, I thought the natural immunity angle was very interesting. So I mean, I’m personally opposed to all sorts of vaccine mandates. However, the courts haven’t been great on the subject. And when the government violates a fundamental constitutional right, it has to be balanced against the interest. And I think when you have naturally immune people, you just can’t show any governmental interest because the person doesn’t present a risk of harm to themselves, they don’t present a risk of harm to society, they don’t spread the virus for the most part. I thought that the natural immunity angle was a really good way of getting at this issue. Of course, now the other side has made natural immunity an issue, and there are all sorts of people who I used to consider good scientists claiming that natural immunity doesn’t exist, but they’ve been twisting the literature, they’ve been twisting what the studies show, and we have the best experts, you know, Hooman Noorchashm, Jay Bhattacharya, Martin Kulldorff, who have amassed enormous amounts of scientific literature that establish the robustness, the durability of natural immunity.
The Science of Natural Immunity [06:31]
Bob Zadek: Now when you say you express a personal view that you are personally opposed to vaccine mandates, the phrase, as I said a second ago, “vaccine mandates” is kind of misunderstood, and maybe it has a broader definition than some people might recognize. So what exactly is “vaccine mandate” as you use the phrase?
Jenin Younes: So I suppose I would call a vaccine mandate any employer or university requiring its students or employees to get a vaccine. And I guess I would differentiate that from “vaccine passport,” which is the city or municipality requiring people to show proof of vaccination in order to enter businesses.
Bob Zadek: So a vaccine—but a business, as we all have recited and we all know, a business is free to serve—and let’s use a restaurant just because it’s an obvious and perfect hypothetical. “No shoes, no service.” We’ve all seen those signs at beachfront restaurants where they have rules as to who they will serve, having made a calculation that the business they will lose by “no shoes, no service” will be gained by the improvement in ambiance and the resulting increase in business. What’s wrong with a business making a calculation—and we can say, for example, you have to wear a tie and jacket to get into this establishment. Those are all kind of purely economic concerns. So isn’t if a business determined that its customers would somehow feel more comfortable to see that sign, even if it’s unsupported by science, they have said, we don’t have any position on vaccine mandates, we just want to fill the tables, and we can best fill the tables by having a vaccine mandate. There’s no constitutional issue for that. So what’s your opposition to it?
Jenin Younes: Well, so what’s happening in places like New York and I believe San Francisco now is it’s the government saying that businesses have to do this. So that’s not business action. Bill de Blasio has said that businesses will now be penalized if they don’t require people to show proof of vaccination. So in my opinion, that’s not private government action at all. Now you can get into stickier territory when you’re talking about, you know, Biden’s said that all employees should be requiring proof of vaccination or requiring their employees to be vaccinated. Now he hasn’t said there will be any penalties for not doing so, but you have the government playing this role where it’s telling businesses this is what you should be doing. I think then it’s hard, you know, you’re getting into stickier territory. And I think there’s no doubt with New York’s vaccine program that that is government action. These are not private businesses deciding to do it. In fact, most businesses don’t want to.
Todd Zywicki: Bob, I’ll just add, and this doesn’t go to the legality of it. You know, it’s often—it’s easy in a lot of libertarians to compare this to, like you were saying, “no shoes, no shirt, no service.” But I think if you want to talk about what is comparable to a business that says, have you had homosexual sex in the last year? Have you exposed yourself to risk of AIDS? I don’t know, basically, what we’re talking about here is disclosing people’s private medical information. And I understand the principled argument, but I think there’s also a very serious slippery slope here in terms of basically rules that allow private parties to demand that you disclose private medical information as a condition for entering onto their premises. And maybe we want to say that’s just like having to wear shoes in a restaurant or having to wear a tie. It’s not obvious to me that it is.
My case here, the case that I worked on with Jenin, we don’t take on that particular question, right? Which is what we take on here is we accept for the sake of argument in this question that George Mason University has some right to create some policies that are reasonable in terms of requiring people to show some degree of protection against infection and transmission. But vaccine isn’t it, which is the point here is just because you’re vaccinated doesn’t mean you’re immune. We’ve learned that in spades over the last few months as breakthrough infections have exploded in this country and around the world. And just because you’re not vaccinated doesn’t mean you’re immune, and that’s the lesson of natural immunity here. Which is if George Mason wants to develop a policy that treats vaccinated people and people with natural immunity the same, then that can be constitutionally—you know, that in and of itself is not constitutionally problematic. There may be other constitutional questions, but they can’t do it in a way that basically disadvantages me and forces people, you know, at risk to my career. They wanted to stigmatize me by doing this. They imposed burdens on me that they weren’t imposing on vaccinated people with a goal of trying to force me to buckle and accept this compelled medical treatment. And you can’t do that if you’re a public institution. You can’t discriminate in that way in a way that tries to disadvantage somebody, penalize them like they were trying to do to me. If they want to talk about immunity, then let’s talk about immunity. That’s what we could talk about that. But talking about vaccination completely misses the mark and is not a reasonable or plausible way of solving the problem that they want to solve.
Mandates vs. Passports [08:31]
Bob Zadek: Now filling in some gaps in our discussion, Todd, in your opening explanation of the litigation, you cited your right to bodily autonomy. And needless to say, that phrase does not appear, as we know, in the Constitution. So let’s drill down. What is the source of your claim—and I’m not trying to denigrate it, but just so the audience can understand it—what makes you think you have such a thing as bodily autonomy? What is your citation for the source of that right? And either Jenin or Todd can answer, or both.
Todd Zywicki: Jenin, why don’t you fill that in and then I’ll fill in the back end?
Jenin Younes: Sure. So the Constitution doesn’t lay out all of our rights. The idea is that that would almost not be possible. So the Bill of Rights existed to preserve certain specific rights, but not everything that society accepts as reasonable is in the Constitution. You know, for instance, the right to parent your own children, that doesn’t appear in the Constitution, but we sort of understand that people have those rights. And so the courts have said that they’re implicitly recognized in various amendments, like the 9th Amendment, the 14th Amendment. And so there have been cases saying that you—that have dealt with forcibly medicating mentally ill people, for instance, that have recognized that right. It was a huge issue in Jacobson v. Massachusetts, which is the case that stands for the proposition that you can mandate vaccines, but I think there are a lot of problems with Jacobson and I don’t think it’s applicable to the present situation.
Todd Zywicki: And Jenin pointed her finger at it, Bob, which is this right has been recognized with respect to mentally ill patients, I believe Jenin correct me, I believe with prisoners also, which is being forced to take medications against their will without being told what they were taking. Right. Yeah, and maybe—and you know, I’m hopeful that someday we employees of George Mason will have the same rights as federal prisoners for this purpose. But yes, you know, the state—what people don’t seem to understand, and this is an important point, Bob, for people to think about, is a constitutional right does not necessarily mean a veto power. As you know, but maybe the non-lawyers in the audience don’t. What a constitutional right is, is it imposes an obligation on the state to justify what they want to do to you. They can’t simply do anything they want to do to you. Otherwise, you end up where Jacobson ended up, which is this notorious and revolting case that many people have heard about from Justice Oliver Wendell Holmes, who said—and this was, you know, I think we now recognize that this was a low mark, a low-water mark for American jurisprudence—in the famous case of Buck v. Bell, where the Supreme Court by I believe an 8-to-1 vote upheld or maybe even 9-to-0 upheld a Virginia law that required sterilization of—or permitted forced sterilization of people who they considered to be mentally ill, which really was classified in that case as a woman who was considered uppity because she wouldn’t bow to her superiors. And as you recall, what Justice Holmes said was this law was allowed, that the law that permits forced vaccination can also require forced tying of the fallopian tubes. And in his famous aphorism, “three generations of imbeciles is enough.” Why do we need to wait for these people to do bad things before we just keep them from breeding? And his sole citation for that was Jacobson. And so that’s the point. It’s never been the case that the government says anything goes. Whether you call it bodily autonomy or you basically call it some people’s right to privacy or whatever the case may be, the government’s got to have some reason before they force you to undergo medical treatment, or you’re right back at Buck v. Bell.
Government Coercion of Private Business [10:31]
Bob Zadek: Now Jenin, would this case have been brought if the law school in which Todd teaches was a private law school rather than a state law school? Is it the same legal theory or would you have had problems, in fact, might you not have been able to bring the case?
Jenin Younes: Our office certainly would not have brought the case because we only sue the government, we don’t sue private entities. That’s part of our mission. As to whether, you know, the suit could be brought by somebody else, probably not on the constitutional grounds we’ve talked about because private entities aren’t, you know, they’re not subject, they don’t have to abide by the Constitution. There may be arguments one could make under the ADA possibly, but I think the case is much stronger against public entities.
Bob Zadek: ADA, of course, is the Americans with Disabilities Act. That’s the reference that Jenin made. Now Todd or Jenin, perhaps Todd, the gravamen of your complaint was not that they couldn’t require you or coerce you to get a vaccination and that violated your bodily autonomy. It was more than that. It was that the focus on vaccination was an empty gesture because the goal, the interest of the state—and the state has to have a compelling interest—the state may very well have, and I’ll say probably has, a compelling interest to prevent the spread of disease. If that was the compelling state interest on which GMU hangs its hat, if you will, then your case is a strong case because you had the immunity. I presume that if you hadn’t contracted COVID before, if you hadn’t been an early adopter, like someone like the first one to buy an Apple phone, you had the foresight to contract COVID early because you’re an early adopter. If you hadn’t done that, I presume while the bodily autonomy issue is still there, your case is not very persuasive. Is that a fair assumption?
Todd Zywicki: Yeah, so Bob, let me make this clear, which is I had COVID. I do not recommend anybody get COVID. Having COVID is no fun. If there had been a vaccine back at the time that would have allowed me to avoid getting COVID, I would have gotten vaccinated. I mean, I’m not—and I find it very irritating when people lecture me, people who have never had COVID lecture me and people like me about that somehow we don’t take COVID seriously. Trust me, I’ve not met a single person who had COVID who wants to get COVID again. But the reality is, Bob, I did get COVID. And what we know about that now is very clear, which is that natural immunity provides at least as much protection as the best vaccines and clearly more protection than more mediocre vaccines like Johnson & Johnson. There are now at least 15 studies that show that natural immunity provides protection in the range of 90 to 95 percent. Johnson & Johnson is 66 percent. George Mason’s policy was so bizarre that they allowed any vaccine approved by the World Health Organization, which includes these garbage Chinese vaccines like Sinovac and Sinopharm, which are so bad that China’s actually starting to think about allowing their whole population to get revaccinated with other vaccines. And so there is not a single study in the entire world that has found that vaccination—a clinical study that shows that vaccination is superior to natural immunity on any of these measures.
Second, there is also every single study that’s looked at this, including just one that appeared today, shows that those who have recovered from COVID, those who are COVID survivors, have not just the same risk of adverse side effects as ordinary people, but actually elevated risks of side effects including severe side effects such as hospitalization. And the logic here is straightforward, which is the side effects from the COVID vaccine come from hyper-inflammation of your immune system, and if you’ve already got an active immune system with active immune protection and antibodies, you are at an elevated risk of hyper-inflammation. So we’re talking about something here that literally has zero benefit and not just normal side effects, but heightened side effects for people like me. And that was even before we learned what we’ve learned in the last few weeks, which is that these vaccines provide very short-term protection that deteriorates very quickly. And there are these studies that just came out of Israel this week that show that for—and they have all Pfizer there—they find that people who got shots at the beginning of the year have 13 times the rate of infection as people with natural immunity, 27 times the rate of symptomatic infection, 8 times the rate of death from breakthrough infections. They also published a paper that shows that the immune protection from the vaccines deteriorates at 40 percent a month compared to 5 percent a month from natural immunity. So even in the pristine versions of the vaccines, natural immunity was as good as the best ones, clearly better than the mediocre ones like Johnson & Johnson. And now as we show the test of time, it is clear that natural immunity is more durable, it’s more protective against the Delta variant. There is no indication that natural immunity is weakened at all against the Delta variant, we can talk about why that is. And so the policy on compulsory vaccination instead of focusing on immunity is even weaker now than it was when we filed our original case a month ago.
Comparing Vaccine Efficacy [12:31]
Bob Zadek: I’m just going to comment that you said the policy on compulsory vaccination. Despite Jacobson, there really isn’t anybody, I don’t think, who believes the government has the power to pass legislation that requires you to be involuntarily strapped to a gurney and injected with a vaccination. So it’s not mandatory vaccination, it’s government indirectly in many instances and directly like GMU and other instances, in effect depriving you of the right to participate in the normal activities of life in America unless you get vaccinated, which is coercive, but it’s not quite the same as mandatory vaccination, which is kind of creepy, to use a very non-legal term, but very descriptive.
Todd Zywicki: That’s a fair point, Bob, which is, you know, we use that term because that’s how we’ve come to summarize what we do for K-12 students, right? Which is that in order to go to elementary school, you have to either be vaccinated or have an exemption. But here’s something that’s important that goes back to an observation you made earlier, Bob. Do you know what in every state that I’m aware of is the case with respect to an exemption from vaccination? If you can prove that you have natural immunity to a disease—measles, smallpox, mumps, whatever—if you can show through an antibodies test or you can show that you have contracted the disease and recovered, that is treated—that natural immunity is treated as equivalent to vaccination. And you’re right, it’s not compulsory, but if you want to send your kid to public schools, you have to either be vaccinated or you have to show that they have natural immunity because they’ve contracted and recovered from it, unless you can get some sort of exemption such as a religious exemption, which is obviously very narrow. So we typically refer to requiring kids to get vaccinated before they go to school as compulsory vaccination, and so I was using that in a loose term, but that’s basically what they’re trying to do here now with respect to this disease without recognizing the traditional exception for natural immunity that they do for everything else for a lot of these diseases that are much more deadly and infectious than this one.
Bob Zadek: So it’s not quite compulsory vaccination, it’s compulsory immunity. Any way you can do it, that’s the ticket in. You have to be immune. And what’s really quite interesting is that the whole policy, as you know of course at GMU, is profoundly irrational because vaccination, if we assume that anybody who wants to be vaccinated, any of your students or faculty members with whom you interact, if they are concerned about contracting this disease, they will get a vaccination. Once they get vaccinated, even if you are not, then you are not a risk to them unless the vaccination is fake. But if we believe the vaccination gives you immunity, then they have immunized themselves from any adverse effects because you’re not vaccinated. So compulsory vaccination is not done to protect others, it’s done kind of to protect you from yourself. That seems to me profoundly irrational and just contrary to the stated goal.
Jenin Younes: Yeah, and it’s different from diseases like measles, for instance, where it does seem that the vaccines are very good at stopping transmission. So and you know, very young babies, for instance, can’t get the measles vaccine, so it does provide a purpose. Now I’m not going to weigh in on whether I think those vaccines should be mandated either or compulsory, but there is a difference where here it doesn’t seem as though the vaccines are very good at stopping transmission. So I think there’s this false idea circulating that if everyone got the vaccine, the coronavirus would just go away, and we know that’s not true at all. And in fact, to the contrary, the mass vaccine campaigns might be causing more variants. There’s some scientific evidence to that effect. So it could actually be making things worse.
Legal Precedents: Jacobson and Buck v. Bell [14:31]
Bob Zadek: I know you both have strong opinions—I suspect, I shouldn’t say I know—I suspect you will have strong opinions, maybe uncontrollable when I pose my question, but there’s a dynamic that has to be mentioned, and that is broadly speaking the messaging from the government, more specifically the government in instilling fear in the population in so many ways in order to cause the population as a whole to get behind government programs. It was pronounced, of course, and I’ve discussed it many times on my show with the war on terror, the war on whatever you want. It all starts with “make them”—that’s us—“make them fearful and you have them where you want them.” So a lot of what’s going on in the private sector is done because the government, by instilling what often is irrational fears, it does a bottom-up—it causes employees and customers to demand certain things of private businesses who after all have to keep the customers and employees happy, so they comply. So if any of you have thoughts on the role of government in perhaps artificially creating fear in order to accomplish what was in their mind an appropriate goal and how that sort of distorted the public conversation on this issue, I’d appreciate it.
Jenin Younes: Yeah, I actually have a very strong opinion on that, and it goes back to your prior point. I mean, I think when we’re looking at this as private business action, I mean, the reason people are so afraid, the reason most people drastically overestimate their risk of dying of the coronavirus, the reason people think that everybody should get the vaccine is all in a large part because of the government public health authorities like Fauci, the CDC distorting the science, distorting the risk. And so that’s prompting these businesses to make these decisions even in areas where the cities aren’t saying they have to. And so I think to look at this as pure private action is actually wrong.
Todd Zywicki: Yeah, I think that’s right, Bob. And I mean, and we see in a lot of what they’re doing now is just simply keeping people off balance. I mean, a good example is you can open the paper every day now and you read two things: which is vaccines are obviously much less effective against the Delta variant, breakthrough infections are rising. We know that the vaccine makers themselves never represented that their products would provide long-lasting protection against infection and transmission. If they advertised that, that would be false advertising based on what they were able to prove. That’s been something that’s been piled on top of it. So and so we know that—and it appears at least for now that it’s a relatively effective therapeutic that treats you and saves you some worse disease. But if it’s just a therapeutic, that’s like, you know, taking your vitamins and eating broccoli, right? Which is the government can’t mandate that. They’ve got to show some connection to infection and transmission. And here that connection was always pretty weak and it’s getting weaker every day. At the same time, they’re saying everybody’s got to get vaccinated. And at the same time, we know the Delta variant is continuing to mutate further, continuing to mutate towards greater escape from the vaccines. And we are still giving people shots and giving people booster shots with a variant that is long extinct. You know, we are multiple generations away from that original variant and now we’re still giving people booster shots with that. And as Jenin mentioned, the evidence is pretty clear now that the variant factories out there are actually the vaccinated people who are getting infected with and transmitting the new variants rather than the unvaccinated people who have a higher percentage. There was just a study this week from University of San Francisco Medical Center that showed this point. So a lot of what’s going on here is very bizarre, it’s incoherent, the government is creating phony evidence like a CDC study that was designed basically as a response to my original Wall Street Journal column. And there’s a lot going on that’s very hard to explain in any sort of innocent way in my view.
Expanding Litigation to Michigan State [16:31]
Bob Zadek: Jenin, you did a beautiful job and clearly a lot of work in drafting that 105-page with exhibits complaint, and it had a public life of about two weeks before GMU settled to make Todd’s specific issue go away but without resolving the issue in the complaint. So how—what is your plan to get more mileage out of that complaint so that you can establish hopefully a helpful precedent? And precedents, good precedents are a gift you leave behind, of course, they live for a long time. So how do you hope to use all the work you did in further litigation? Either—well, you only litigate against governmental entities, so tell us what the plan is because that complaint is too good to become unimportant in under two weeks.
Jenin Younes: Oh, thank you so much. Well, first of all, I want to say that, you know, all of these efforts are a team effort. So I was the lead attorney, but I did have other attorneys working on it who also deserve credit for how good the complaint was. But luckily or unluckily, there are plenty of vaccine mandates around the country that are similar or worse actually to GMU’s. So I actually just—we at NCLA just filed suit on Friday against Michigan State University. And actually, their vaccine mandate was harsher than GMU’s. They—their religious exemptions are delineated and they’re much more strict, there are only a couple circumstances in which they’re allowed. They expressly say that they don’t give exemptions for natural immunity, so we knew upfront we didn’t even have to try to request it. So we have a plaintiff, Jeanna Norris, and we’re filing it as a class action lawsuit. So we’re hoping that others at MSU will join. The class is defined as employees who have demonstrated natural immunity through antibody tests and whose rights to bodily autonomy integrity are being violated by this mandate. So if other employees of MSU want to join, we’re looking for more plaintiffs to join the class.
Bob Zadek: Had you considered, when I read the complaint I said to myself, this cries out for class action status, at least—and I’m not a litigator and I’m not for sure a class action lawyer—had you considered using Todd as representative of a class? And without getting too much into the legal weeds, if you did, what was the reasons to do it or not to do it? One thought was had it been a class action, they wouldn’t have had as easy a task in settling as they did.
Jenin Younes: You know, that’s a good question. At the time Professor Zywicki had approached us and we did a—we wrote a demand letter on his behalf before we started with the litigation. And we’d sort of tailored the case to his particular circumstances. So I think at that point we just decided to go ahead with it as it pertained to him. But then we decided going forward it made sense to do it as a class action.
Bob Zadek: And you’re encouraged in the lawsuit against Michigan State University that you hopefully will get class action status, which would prevent the quick settlement just to make it go away without the burden of filing an answer.
Jenin Younes: Precisely. And I think, you know, until we worked on Professor Zywicki’s case, we were unaware just how many people were being affected by this. At that time the mandates were just starting to come, so we weren’t sure. But ever since we filed that lawsuit, we’ve just been flooded with requests and the mandates keep coming in more and more places, and they’re getting—a lot of them are getting stricter and stricter actually.
Community Reaction and Closing [18:31]
Bob Zadek: Now of interest to anybody who’s listening to our show this morning or the podcast, of interest to them is of course, and we touched upon it earlier and I want to cover it before we run out of time, and that is the growing use of something called vaccine passports. You made several references to de Blasio in New York, which is the poster child for this stuff and for others. Now Jenin, I know you have a preference to sue governments, that’s the mission of the New Civil Liberties Alliance, but if you run out of governments to sue—ha ha, if you run out of governments to sue—how applicable or how would you—is your cause of action robust enough that you have sustainable claims against the use of vaccine passports more broadly to cover things like concerts, restaurants, sporting events and the like?
Jenin Younes: Well, were I to attack something like de Blasio’s program, I would absolutely sue de Blasio, not the businesses, because he’s told the businesses that they have to do this. So yeah, I would not go after the private businesses. I do think if there was no such mandate and if the government hadn’t been so heavy-handed in dealing with COVID, I would not go after private businesses. I think, you know, that’s sort of their right if they want to cater to a crowd who thinks that vaccine passports are a good idea, I guess they have the right to do that. But that’s not at all what’s going on here. This is businesses being forced to do something by the government.
Bob Zadek: Well, if you run out of things to do, Jenin, my theory is maybe you can get people with natural immunity to become a protected class. Then you get the benefit of the Civil Rights Act, and then employers can’t discriminate against unvaccinated people with natural immunity. It’s just a tweak in the Civil Rights Act and you’ve done it.
Jenin Younes: That’s an interesting idea. Yeah, I could see that. I guess I can’t even get myself to the place of imagining where I don’t have governments to sue because there are so many of them right now. But yeah, I think there are theories.
Bob Zadek: Just a thought, Jenin, I’m just trying to make sure you have enough work to do and I don’t want you to run out of governments, that’s all. It’s a service we provide on the show. Todd, on a personal level as we are running out of time, if you choose to share it, your experience—you interact with students and faculty members at GMU in general. Has there been a reaction that’s more pervasive than others? Are they—they being other faculty members and students—are they all over the map? Does there seem to be a point of view that’s more prevalent than the other towards what you have done, or do they just not care all that much?
Todd Zywicki: Oh, they definitely care, Bob. And I am grateful for my colleagues. As you are probably aware, Antonin Scalia Law School is a unique place. We have—I love my colleagues, and one of the reasons is that these are clear-thinking people. Which is I’ve gotten nothing but favorable feedback pretty much from my colleagues. They understand the science here. There’s really no doubt about the science, Bob. I mean, there literally is zero studies that contradict what we are arguing and tons of evidence that is consistent with it. They understand it, they also understand the Constitution. And if anything, students have been even more enthusiastic because especially students are in my situation, Bob. And I want to stress this: this is pure wickedness what they are doing to students. And they may have fewer constitutional rights, but a student who has natural immunity—if you’re talking about a kid who’s in their 20s or you’re talking about a college student or you’re talking about a young Marine—a young healthy person as we know has very close to zero risk from COVID to begin with. You add in natural immunity on top of it, and we’re talking about as close to bulletproof as you can go. Add a final point, Bob, which is as I said, as I mentioned earlier, people like me in my 50s, anybody who’s had COVID and recovered has an elevated risk of side effects. That risk is even higher for young people, and the studies make it clear as you go down the ladder towards younger people, their risk of adverse side effects goes up. That’s why we see these myocarditis problems in young men. And basically the deal is, Bob, is it’s the same reason, which is young people have more active immune systems, which is why they’re of less danger from COVID. They also have more active immune systems, which is why there’s more risk of hyper-inflammation of their immune system. And so it’s just wicked, it’s vicious to make students who have recovered from COVID have to get vaccinated. I think it’s really, as I think, a moral abomination.
Bob Zadek: And Jenin, what has been—your litigation has gotten a lot of attention both in the legal community and beyond, probably in the medical community as well. What has been the feedback you have experienced? We only have about a minute to go, Jenin.
Jenin Younes: I’ve gotten a lot of support. People really seem to like this angle. I think even people who might be okay with some forms of vaccine mandates or passports understand the natural immunity issue. So it’s been a real outpouring of support. It’s been really great.
Bob Zadek: Well, so there you have it, my friends. Should vaccine mandates be permitted, encouraged? Should employers yield to the pressure imposed upon them by their customers or their employees to protect them from a risk that doesn’t even exist? That’s a question which our government and our society will have to decide over the next year or so. But thank you so much to Jenin and to Todd for bringing this issue to the courts, for their very successful result, and for their continued litigation against state institutions. And let us all hope that Jenin, in selecting the perfect defendant, she doesn’t run out of governments. We’d hate to see her resume circulating out there in the ether somewhere. So thank you so much, Todd and Jenin, for the wonderful work you did in the courtroom and for the result you have achieved. This is Bob Zadek thanking my friends Todd and Jenin for sharing an hour of their time and asking you to continue to listen to the podcast. Please indicate any suggestions you have on the podcast, how to make it better, what I’m doing wrong, and if you have an opinion on the quality, it is always welcome. Thank you so much, my friends, for listening. I’ll be back again next Sunday. Please enjoy the rest of your weekend.