UC Irvine Doc Sues Over UC System’s Vaccine Mandate

The UC Board of Regents’ vaccine mandate is a violation of the equal protection clause of the U.S. Constitution’s 14th Amendment, alleged a lawsuit filed by Aaron Kheriaty, MD, a psychiatry professor at the University of California Irvine’s (UCI) medical school.

In the complaint, Kheriaty, who also serves as the director of the medical ethics program at UCI, argues that his natural immunity from getting COVID-19 in July 2020 provides better protection against future infection than any vaccine on the market. Therefore, he believes that he and others in his position should be exempt from a mandate.

“At first glance, I may seem like an unlikely person to challenge these vaccination policies,” Kheriaty told MedPage Today, recalling his involvement in the university’s worst-case scenario pandemic planning team and co-authoring UCI’s ventilator triage guidelines. “I’ve seen the worst that this illness can do. I’ve been living and breathing COVID professionally from the very beginning of the pandemic.”

Yet, he said, as universities started to announce vaccine requirements for the upcoming 2021 academic year, he became concerned with the “one-size-fits-all coercive policies that attempt to override informed consent for competent adults” that didn’t account for the “individualized risks” that COVID-19 vaccines posed to certain groups of people.

Although the UC system’s vaccine requirement policy allows for physician-approved medical exemptions, Kheriaty said that many healthcare professionals in California won’t write exemptions for their patients, even if they agree that the patient is at a higher risk of adverse reactions, out of fear of retaliation from the state medical board.

The Medical Board of California (MBC) recently issued a warning to physicians throughout the state, notifying them that their licenses could be subject to disciplinary action if they issued mask/vaccine exemptions without proper cause. The announcement came after news broke that a California doctor had been selling mask exemptions to students in his local school district.

Kheriaty said that, after trying to persuade university leadership, he took his complaints to court also on behalf of those “who were not in a position to stand up and assert their rights,” such as medical students, residents, nurses, and other staff who “don’t have the credibility that comes with being a physician or a directorship title at the hospital.”

“If I don’t try to do what is morally right when under pressure or when it might cost me something professionally, then I don’t have much credibility in terms of calling myself a medical ethicist,” he told MedPage Today.

In the complaint against the UC Board of Regents, Kheriaty and his attorneys argued that “in enacting this policy, the University is treating naturally immune individuals differently from individuals whose immunity was created by one of the COVID-19 vaccines.” They are seeking an injunction to block the vaccine requirement.

The lawsuit also alleges that, if Kheriaty doesn’t provide proof of vaccination or a verifiable medical exemption, he “will suffer an impending loss of employment and of his professional reputation.”

Kheriaty, who has authored a number of op-eds on this subject and others, joins a growing number of university faculty members across the U.S. that loudly oppose their institution’s vaccine requirements. Earlier this month, George Mason University law professor Todd Zywicki, JD, also sued his institution, arguing that his natural immunity should exempt him from a vaccine mandate.

Prior infection from COVID-19 may offer significant protection from reinfection. A recent Israeli study found prior infection to be more protective than vaccine-induced immunity in the case of the Delta variant. Many experts, however, do not think this early data ought to be interpreted as a sufficient reason for the previously infected not to get vaccinated.

CDC recommends all eligible individuals ages 12 or older receive the COVID-19 vaccine, regardless of vaccination status. The agency reiterated their position in August when they released data that found unvaccinated individuals who were previously infected with COVID-19 were more than twice as likely to be reinfected than those with previous infection who had gotten vaccinated.

Leana Wen, MD, of George Washington University’s Milken School of Public Health, told MedPage Today that it’s possible to acknowledge both the protection that comes with previous infection and the necessity of vaccine requirements. When it comes to policy and logistics, Wen added, requiring proof of vaccination makes more sense than the alternative: trying to figure out who has natural immunity, how strong their individual level of protection is, and how to prove it all.

“We have to separate the individual from the policy,” she said. “A university or an employer needs to set policy that applies to everyone; and verifying whether someone was previously infected is extremely challenging, while verifying vaccination is sensible and very reasonable.”

Wen noted that some studies have even found that vaccination after COVID-19 infection can create an antibody response that’s more robust than recovery alone or vaccination alone. Given the safety of the vaccines on the market, she said she doesn’t see why those who have recovered from COVID-19 should be exempt from vaccination requirements altogether.

At the time of press, Kheriaty still worked at UCI.