Published on December 21, 2021
Last Thursday, the University of California fired my good friend and new colleague, Aaron Kheriaty, for refusing vaccination. The next day, a federal circuit court allowed President Joe Biden‘s OSHA vaccine mandate to take effect throughout the United States, meaning many other citizens may soon be penalized. But we should not treat conscientious objectors to the vaccine like this.
Dr. Kheriaty, a physician and psychiatrist, has taught and treated patients at the UC-Irvine Hospital and Medical School for 15 years. He has also directed the medical school’s bioethics program.
When COVID hit, Dr. Kheriaty helped the hospital develop ethics guidelines. He treated COVID patients throughout the pandemic, including when everyone was most concerned about the virus’ lethality. As a result, he caught the virus and developed natural immunity.
When vaccines became available earlier this year, Dr. Kheriaty declined to be vaccinated, arguing that his natural immunity provided more protection. In his calculation, the added risks of a novel vaccine were not justified for his personal situation. Rather than respect his medical judgment, UC-Irvine fired him. Now, he directs the Bioethics Program at the research institute I run, the Ethics and Public Policy Center in Washington, D.C.Newsweek Newsletter sign-up >
Dr. Kheriaty and I made different decisions about the COVID vaccination. I suffer from a chronic autoimmune disease and take immunosuppressant medications that increase the risk of upper respiratory infection. It made sense for me to get vaccinated, notwithstanding the medical unknowns and the vaccines’ link to fetal cell lines originally procured from aborted children. I have argued that a pro-lifer can, in good conscience, receive the vaccine. But to say that people may do so isn’t to say that they must, or should be forced to, do so.
Nor should people who reach a different judgment be fired, banned from restaurants or ostracized from polite society. I employ people with a diversity of views on the religious and moral acceptability of the vaccine, and would never dream of forcing any of them to violate their consciences on this. But the Biden administration, Big Business and many state governors think otherwise.
To be sure, I am not saying that vaccination mandates are categorically wrong. Vaccination has the potential not only to protect your own health, but to protect others—and to advance the common good in a variety of ways. But support or opposition for a specific vaccine mandate depends on the specific facts: What is the risk of death or other serious harms with and without the vaccine? Who is most at risk? How much natural immunity already exists, and how long will vaccine protection last? What are the vaccine’s side effects? Was the vaccine ethically produced? Are there other ways to reduce health risks? Are the mandate’s goals well-defined? Is the mandate lawful? Does it respect religious, moral and medical conscientious objectors? How much social strife will result? One must weigh the costs and the benefits, with the burden of proof on the party trying to coerce others.
President Biden’s OSHA mandate fails the test: It’s illegal, implemented on behalf of a vaccine that is less than fully efficacious and it does not give adequate protections for conscientious objectors—three strikes. In short, it’s unjust. It doesn’t serve and respect all of the demands of the multifaceted common good.Newsweek subscription offers >
The president and OSHA lack constitutional or statutory authority to issue this vaccine mandate. As the White House admitted, the goal of the mandates is not workplace safety, but “to render being unvaccinated so burdensome that those who haven’t received shots will have little choice other than to get them.”
COVID is a serious virus that has killed millions worldwide. This is impossible to deny. But today we have much better therapeutics to treat COVID and minimize hospitalization and death than we had earlier in the pandemic. And since COVID’s worst impact falls overwhelmingly on the elderly and those with serious health conditions, we can identify and protect the most vulnerable without coercing conscientious objectors to the vaccine.
As the CDC itself has admitted, the vaccines do not entirely prevent infection or, more important, transmission. Against infection with the omicron variant, “full” vaccination is only 33 percent effective. While the vaccines reduce hospitalization and deaths, they are not the “silver bullet” Dr. Fauci and others long held them out to be. And the vaccines have sometimes had serious adverse effects. These concerns cannot be dismissed as misinformation when the data come from the federal government’s own Vaccine Adverse Events Reporting System. Knowing who experiences which adverse effects, and how often those effects transpire, is crucial for informed personal decisions about vaccination.
Yet, while the president is mandating vaccination, the FDA is refusing to release the safety data used in approving the Pfizer vaccine, suggesting in response to Dr. Kheriaty’s FOIA request that the public should not see the data until 2076. This lack of transparency—especially in conjunction with the federal mandate—is simply unconscionable. To add insult to injury, before OSHA issued its vaccine mandate on a third of the American workforce, it lifted a requirement that employers track and report adverse health consequences of vaccination for their employees. It is inexplicable that the federal agency charged with tracking workplace health and safety incidents would simultaneously impose a vaccine mandate and eliminate a requirement to track the adverse consequences of the vaccine.
Federal law allows private employers to impose their own vaccine mandates, but all mandates must respect federal civil rights laws. The Americans with Disabilities Act and Title VII of the Civil Rights Act require workplace policies to make reasonable accommodations for disability and religion. And employers generally cannot discriminate by providing exemptions for certain preferred secular reasons while denying the same accommodation on the protected bases of disability or religion. While these laws do not protect medical or conscience objections more broadly, justice still requires us to accommodate these concerns to the extent we can.
Dr. Kheriaty argues that, for his own situation, his natural immunity is superior to the protection afforded by the vaccines. Others object to the vaccines’ risks or experimental nature, and still others to their link to aborted fetal cell lines. We can fight COVID together without penalizing the people holding these various convictions. Dr. Kheriaty, for example, could have continued teaching students and treating his psychiatry patients over Zoom, or while wearing an N95 mask. If that worked well—and it did—before the vaccine existed, and before UC-Irvine imposed its mandate, why not now?
We can protect the most vulnerable without forcing the vaccine on those who conscientiously object. We can be both pro-vaccine and anti-vaccine mandate.