Published January 18, 2022
Editor’s note: Dr. Aaron Kheriaty is a psychiatrist and ethicist who served as a professor at the University of California-Irvine School of Medicine and the director of the Medical Ethics Program at UCI Health, until he was fired last month for refusing to be vaccinated after claiming natural immunity from a prior COVID-19 infection.
During the early months of the pandemic, Kheriaty co-authored the UC’s pandemic ventilator triage guidelines for the UC Office of the President and consulted for the California Department of Public Health on the state’s triage plan for allocating scarce medical resources. He also served as a psychiatric consultant at the hospital and contracted COVID-19 in 2020.
In August, after his employer issued a vaccine mandate that made no exceptions for those who had already been infected with the virus, he sued the University of California Board of Regents and Michael Drake, the system’s president. He was placed on unpaid leave in October, and his employment was terminated on Dec. 17.
“Once I challenged one of their policies I immediately became a ‘threat’ to the health and safety of the community,” he contended in a blog post.
At present, Kheriaty directs the program on Bioethics and American Democracy at the Ethics and Public Policy Center in Washington, D.C. He is also chief of psychiatry and ethics at Doc1 Health and chief of medical ethics at The Unity Project, and a senior fellow and director of the Health and Human Flourishing Program at the Zephyr Institute. Further, he serves as a scholar at the Paul Ramsey Institute and is on the advisory board at the Simone Weil Center for Political Philosophy.
In a telephone interview with Register senior editor Joan Frawley Desmond, the Catholic medical expert discussed his own situation as well as the broader issues in play with COVID-19 vaccination mandate policies.
Last week, the U.S. Supreme Court blocked the Biden administration’s vaccine mandate for large private companies, but allowed a second mandate for health-care providers to stand. Your reaction?
The court did the right thing in putting a stay on the OSHA mandate. They did the wrong thing by not doing the same for the mandate governing health-care providers. There’s a strange irony: The court has decided that the federal government apparently can only approve a vaccine mandate for Center for Medicare Services (CMS) employees who are health-care workers and presumably have more expertise in things like vaccines. I found that odd. The court’s [split decision] felt like a bit of political horse trading, in order to appear “nonpartisan.”
To me, the ruling gives the Center for Medicare (CMS) too much power, when its job is to provide payments and reimbursements for patients who are enrolled in either Medicaid or Medicare. That [role] has been used as leverage to force things upon hospital employees, like vaccine mandates, that seems to go way outside the scope of their legitimate authority.
Last fall, you filed suit in federal court against the University of California on behalf of “COVID-recovered” employees like yourself. You argue that natural immunity following COVID infection is equal to or even superior to vaccine-mediated immunity, so demanding that such individuals still be vaccinated introduces unnecessary risks without commensurate benefits and violates their equal protection rights guaranteed under the Constitution’s 14th Amendment. How will the high court’s recent decision affect your lawsuit?
I don’t know that it will affect my case directly, because some of the issues in my case are different than the issues in play in the two cases before the Supreme Court.
By putting a stay on the OSHA mandate, the court indicated, in principle, that there are limits to vaccine mandates and limits to what institutions can do to mandate vaccines. The ruling also set limits to [legal precedent used to defend the vaccine mandates Jacobson v. Massachusetts (1905), which found that the right to refuse medical treatment could be overcome when society must curb a contagious epidemic].
That’s all positive.
At the same time, the two cases had more to do with the separation of powers and the federal government’s authority through the executive branch to mandate vaccines. My case in federal court has to do with whether the University of California has authority to mandate vaccines for its employees. So I’m challenging the vaccine mandate of a state entity on behalf of individuals with infection-induced immunity, sometimes called natural immunity.
What’s your argument regarding the benefits of natural immunity?
In a nutshell, we know now that natural immunity is actually superior to vaccine immunity, especially with the passage of time and with new variants.
A recent pre-printed study that just came out showed that basically two doses of the mRNA vaccines had no efficacy of preventing infection with Omicron. If you got a third booster dose, it got you up to about 37% protection against Omicron infection. And that’s well below the threshold for FDA approval of a vaccine, which is 50% efficacy.
It’s also not clear how long that protection is going to last.
Natural immunity remains quite robust, even against Omicron. It’s declined slightly with this new variant but not nearly as much as the vaccines have.
In December, the University of California-Irvine fired you after 14 years of service. Do you have any regrets about leaving a job you loved over the issue of natural immunity, as opposed to moral objections to the vaccines themselves?
I do have broader ethical concerns and moral objections related to the vaccine mandates that go beyond just my natural-immunity argument.
I chose to file my case grounded in the evidence on natural immunity because it was a legal case that we judged could win on the merits, looking at the science.
But there are other reasons why reasonable people may want to decline these vaccines — conscience-based reasons and other medical reasons that were not permitted under these mandates.
For me, it was a moral issue. I decided to put a stake in the ground because I had been involved in the vaccine rollout.
At the beginning of 2021, I served on the Orange County Vaccine Taskforce. I was involved in developing the vaccine-allocation policy at the university back when the demand for vaccines outstripped supply and there were ethical questions about who should get the vaccines first.
But when public policies moved in the direction of mandates, I thought they were coercive and didn’t take account of basic medical facts [regarding who was most at risk]. I thought there were perverse financial incentives at work, and I was concerned about the silencing and suppression of dissenting voices regarding these policies.
This August, when I decided to file the lawsuit, I was projecting ahead to the ethics course I would be teaching [this time of year] and tried to imagine myself standing up in the lecture hall and talking about informed consent, a foundational principle of bioethics, and the need for moral courage. The students would need to speak up if they saw something happening that they believed was wrong or potentially harmful to patients, even though they are at the bottom of the hospital hierarchy.
I couldn’t imagine teaching about integrity and moral courage if I had seen something troubling that unfolded around me and my actions didn’t back up what I taught in the classroom.
Do you miss teaching?
Yes. Independent institutes and nonprofits provide outlets for a lot of what I was doing at the university, like research, policy work and advocacy work, and I’m starting a private practice. But the teaching is something I definitely miss.
I have been asked if it would not have been better to continue teaching at the university and stay in the game there. But while we can teach with our words, we can also teach with our actions. And good teachers have to do both. Several students have told me, “Your sacrifice has encouraged me or inspired me to take a stand myself on some of these issues.”
“Preach the Gospel at all times, and if necessary use words” is a familiar saying among Christians. You weren’t preaching, but you were teaching. As a Catholic father of five children, what has kept you going from the early days of the pandemic to your fateful decision to sue the university?
First, my wife, Jennifer, has been very supportive all the way through. She has respected my own discernment process. She also shares the same ethical principles and the same concerns about the vaccine mandates. After I got fired, and I was scrambling to figure out what to do, it was an act of faith on her part to trust my decision.
My faith also helped me to believe in God’s loving providence, that he would take care of my family if I followed my conscience [and was fired as a result]. If we seek first the kingdom of God, he will provide for our other needs.
After I made the decision, the encouragement of other people has also kept me going. They have reached out to me from inside and outside the university, nationally and internationally, thanking me for my stance and for the writing posted in my newsletter.
Why are questions about vaccine efficacy and mandates often so controversial? You want to say to public-health officials, “Treat us like grown-ups. We understand nuance. We understand that the facts on the ground are shifting. Let’s have a public debate and not attack those raising good questions about COVID policies.”
It’s complicated. The vaccines have become a very neuralgic issue. People are polarized, and it’s a very personal issue for some, and there are lots of different reasons for that.
During the initial vaccine rollout, our public-health officials promised more than the vaccines actually delivered. They said, in no uncertain terms, that these vaccines would stop the spread of the virus.
Many of the arguments for vaccine mandates, and the supposed justification for overriding informed consent, relied on conflating these vaccines with traditional vaccines that offered sterilizing immunity. Sterilizing immunity means that if I get the vaccine, not only will I not get sick from the measles, or COVID, I also won’t get a low level or asymptomatic infection that could be transmitted to others.
That [expectation] created a kind of solidarity-based argument or public-health-based argument [for taking a COVID vaccine]. It told a young man, who was at low risk of getting [seriously ill from COVID and might worry about side effects of the vaccine], “You have a social duty to take it for the sake of other people, for Grandma.”
But it was clear, early in 2021, that these were not sterilizing vaccines. And if that’s the case, we have to rely on traditional clinical ethics that says patients have the right to decline medical intervention if they so choose because they’re the ones who are assuming the risks and they’re the ones who are assuming the benefits.
A lot of public-health officials are afraid to say things have changed, because the vaccines were sold as the way out of the pandemic, the way out of lockdowns, a way to get the numbers down.
But the virus is still spreading, while some have had very adverse reactions to the vaccines, and others have lost their livelihoods because [they are unvaccinated]. That creates a cohort of people that have strong thoughts and feelings about the vaccines.
What’s your advice for Catholics who want to stay on solid ground and avoid conspiracy theories, pseudo-science or even potentially harmful medical treatments?
Stay away from anything or anyone that lacks nuance. Stay away from anything or anyone that proposes a one-size-fits-all policy. That’s not how medicine works.
We know that this virus affects different populations very differently.
Coercive, heavy-handed policies, like locking everyone down, or mass vaccinations, regardless of [a patient’s] individualized risk profile, should [provoke] healthy suspicion.
Go to people who directly address questions and cite evidence in their answers to questions.
Going forward, what will be the focus of your work?
In my bioethics and public-policy research, I’m going to continue working with the Ethics and Public Policy Center and The Unity Project on mandates and coercive COVID policies and do a postmortem on what we did right and what we did wrong during the pandemic.
I’ll also explore some of the larger dynamics shaping medicine and public health that may be getting in the way of good patient care: pandemic-response issues, the right of informed consent, the right of informed refusal, and information, communication and censorship.
Aaron Kheriaty is a fellow at the Ethics and Public Policy Center, where he directs EPPC’s program in Bioethics and American Democracy.
Joan Frawley Desmond is the Register’s senior editor. She is an award-winning journalist widely published in Catholic, ecumenical and secular media. A graduate of the Pontifical John Paul II Institute for Studies of Marriage and Family, she lives with her family in California.