(CN) — An Orange County psychiatrist is suing Thomas J. Aragon, the director of California’s Department of Public Health, because he says a new order requiring him to get vaccinated for Covid-19 to continue serving patients, if enforced, would infringe on his rights under the Fourteenth Amendment to the Constitution.
Dr. Aaron Kheriaty is a professor of psychiatry and human behavior at UCI School of Medicine in Orange County, and maintains hospital privileges at UCI Health. He claims that he contracted Covid back in July 2020, and says he now has natural immunity to the virus, making moot the requirement that he become vaccinated.
“In fighting off the virus, his body created a robust natural immunity to every antigen on the COVID-19 virus, not just the spike protein of the virus as happens with the COVID-19 vaccines,” alleges the plaintiff in his complaint. “Nevertheless, CDPH requires Plaintiff to receive a COVID-19 vaccine in order to continue his work at UCI. Thus, CDPH is treating him differently by refusing to allow him to work at UCI when other individuals who are considered immune to the virus are being admitted back simply because their immunity was created by a vaccine.”
Kheriaty claims that because he already caught the virus in the wild, he now has “at least as good or better” immunity to Covid than individuals who got vaccinated. He cites figures of unknown origin in his complaint which allege the natural reinfection rate after catching the virus is less than 1%, with no documented cases of reinfection or transmission by “naturally immune individuals.” He further claims that level of immunity far surpasses the “67% to 95% efficacy” achieved by those who have been fully vaccinated.
According to the plaintiff, forcing him against his will to get the vaccine in order to keep his job would infringe on his fundamental rights under the Fourteenth Amendment to the Constitution to refuse medical treatment. The Fourteenth Amendment guarantees equal treatment to all Americans — and by treating him differently than individuals who achieved immunity by getting vaccinated, he says those rights will be infringed upon.
“CDPH’s refusal to allow Plaintiff to work at UCI until he receives a vaccine is an equal protection violation,” Kheriaty alleges in the complaint. “The right of individuals to their bodily integrity, which includes a right to refuse medical treatment, has long been recognized as one of the fundamental liberty rights afforded under due process. By forcing Plaintiff to receive a vaccine he does not want or need, and that may cause harm, in order to be treated equally as other individuals who are also immune, CDPH’s Mandate implicates Plaintiff’s substantive due process rights.”
Kheriaty wants to see the court analyze his equal protection claims under strict scrutiny analysis — determining whether the mandate both satisfies a compelling government need and is implemented through the least restrictive means possible. He says by failing to acknowledge that naturally immune individuals such as himself are “unlikely to spread the virus,” the mandate is overly broad and should not be enforced in those cases.
“Critically, naturally acquired immunity from COVID is as robust as vaccine-acquired immunity, so there is no compelling interest (nor any rational basis) in vaccinating or requiring the vaccination of those who have already had COVID,” Kheriaty claims in the complaint.
Plaintiff seeks to have the Department of Public Health’s vaccine mandate declared unconstitutional in regards to the “naturally immune,” and enjoin the Department from enforcing the mandate against that group.
Representatives for the California Department of Public Health did not immediately respond to a request for comment.
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