Miss a day, miss a lot. Subscribe to The Defender's Top News of the Day. It's free.
A U.S. Court of Appeals on Tuesday heard arguments in an appeal challenging the constitutionality of Rutgers University’s COVID-19 vaccine mandate for students.
The hearing came after the U.S. District Court for the District of New Jersey in September 2022 dismissed a lawsuit filed in August 2021 by Children’s Health Defense (CHD) against the university on behalf of 18 students challenging the mandate.
During Tuesday’s hearing before a three-judge panel for the 3rd Circuit in Philadelphia, attorney Julio C. Gomez argued Rutgers’ policy is unconstitutional because COVID-19 vaccines are experimental and administered under an Emergency Use Authorization (EUA), and because students had the right to refuse an unwanted and potentially unsafe medical procedure.
“This appeal raises a very important question: whether a college or a university in New Jersey has the legal authority during a public health emergency to coerce the student’s consent to a highly invasive injection of a yet to be fully investigated vaccine,” Gomez told The Defender.
Gomez said the facts of the case speak for themselves — that the vaccines do not prevent transmission, that they pose serious risks of harm, that Rutgers knows this because it is involved in the clinical trials, that Rutgers has conflicts of interest due to its work for vaccine manufacturers and that the only vaccines currently available are emergency-use-authorized vaccines.
“As a result of these facts, Rutgers does not have the legal authority to mandate these vaccines,” Gomez said. “Rutgers’ mandate is not rational, it violates the students’ rights to informed consent, it is coercive and it violates the unconstitutional conditions doctrine.”
Gomez also argued that the university’s mandate, first enacted in April 2021, was contradictory, as it did not also mandate faculty and staff get the vaccine. That requirement was added later in 2021.
Kim Mack Rosenberg, acting general counsel for CHD, told The Defender the university’s mandate was “arbitrary.”
Rosenberg also said:
“Rutgers tried to argue that the EUA status of the vaccines was irrelevant and ignored that the vaccine’s safety and efficacy remain unproven. In fact, that the vaccine does not prevent infection or transmission — the alleged basis for the mandate — has been known.”
Rosenberg argued that Rutgers, having hosted clinical trials for the COVID-19 vaccines, should have been quite aware of the vaccines’ limitations and risks.
“That these shots were mandated for a student population of an age wherein many serious injuries have been documented and where the risk of serious injury is not fully understood, is particularly concerning,” Rosenberg said.
As a result, Rutgers “eviscerated” students’ rights “by mandating the experimental vaccines for students’ participation in classes and key elements of on-campus student life, such as dormitory residence.”
Rutgers ‘coerced’ students into taking ‘potentially risky and dangerous’ vaccine
In his arguments Tuesday, Gomez argued that any public health policy enacted by Rutgers is legally required to be “tethered” to recommendations issued by the Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices (ACIP).
By not giving students notice that they have the right to accept or refuse the vaccine, Rutgers did not comply with ACIP recommendations, Gomez told the court.
Jeffrey S. Jacobson, the lawyer representing Rutgers, told the court, “If ACIP recommended something, Rutgers had the discretion to mandate it.”
But Gomez countered that Rutgers “can say ACIP recommended this vaccine, but … there is a requirement of adherence to the statute, which indicates that everyone needs to be given notice that they have the right to accept or refuse the vaccine.”
“There’s a fundamental right for the student to make the decision that is permitted under that statute freely without coercion,” Gomez argued. “That coercion essentially eliminates or obliterates the right the student needs to be free to decide … whether to accept or refuse without any coercive element.”
Gomez pointed out that available COVID-19 vaccines are not fully licensed by the U.S. Food and Drug Administration (FDA).
“The only three vaccines that are available are the Pfizer and Moderna bivalent vaccines and the Novavax vaccine,” Gomez said. “All three of those vaccines are emergency-use-authorized. All three of those are still under clinical study. And all three of those are still considered … ‘experimental’ by the FDA.”
To support this argument, Gomez said that clinical documents for the available COVID-19 vaccines indicate “there was insufficient evidence about safety and risk and harm,” adding that even the most recent documentation indicated “ongoing clinical study and post-marketing analysis for myocarditis and other issues had to continue.”
“Rutgers did not have the ability to exercise good faith” in issuing the mandate “because it didn’t have the information to make that kind of an assessment,” Gomez said.
He added that if the vaccines “cannot stop the spread of infection [or] disease, then it’s not rational to mandate” them “to stop the spread of the disease.”
Rosenberg said this is relevant to the initial dismissal of the case by the lower court:
“The central legal issue before the Court of Appeals is whether the [District Court] applied the correct standard in dismissing the case.
“On a motion to dismiss, the District Court was required to accept as true plaintiffs’ pleadings, including plaintiffs’ allegations that these vaccines do not prevent infection or transmission and are not safe. The District Court did not do so, leading to plaintiffs’ appeal.”
Jacobson attempted to justify the initial imposition of a vaccine mandate only on students, but not faculty or staff, by saying, “We had to get our students back to campus. We had to get our students back to a mode of in-person learning. [The mandate] was one critical tool in our toolbox to do it.”
“At the time that we imposed the student mandate, we had the regulatory authorization to do it,” he added. “We didn’t yet have a regulatory basis to mandate it for faculty … there’s a whole different circumstance with regard to faculty and staff because we have collective bargaining issues with them.”
Jacobson did not address why Rutgers continues to maintain its vaccine mandate for students when other universities have lifted the requirement.
Speaking earlier this month on CHD.TV’s “Good Morning CHD,” Gomez said “it’s surprising” Rutgers kept its vaccine mandate in effect, as a lot of universities by now have dropped them.
With the end of the national COVID-19 emergency and public health emergency on May 11, numerous universities ended their vaccine mandates, including the State University of New York and the City University of New York.
Gomez argued that Rutgers’ continued enforcement of the mandate was reflective of a broader inflexibility demonstrated by the university ever since it enacted the policy.
In the case of plaintiff Adriana Pinto, for instance, Gomez said that she needed two classes to graduate when she enrolled in an online course offered by Rutgers in 2021. However, Rutgers barred her from taking the class because she was unvaccinated.
“They essentially withdrew her from that class registration because they required a remote student who was going to participate in class via Zoom to be vaccinated, even though … that student would pose absolutely no risk or danger to anyone,” Gomez told CHD.TV. “It’s so egregious what they’ve done.”
Rutgers looking to create ‘infinite market’ for COVID vaccines
Gomez told The Defender CHD’s lawsuit is significant because it confronts the court with a very important question: whether a university can mandate a vaccine while it is conducting clinical trials on that vaccine.
Rutgers has hosted, and still hosts, clinical trials for COVID-19 vaccines.
Jacobson claimed during the hearing” “Rutgers was one of many sites that participated in the trial. The data went to ACIP, ACIP made the recommendation, Rutgers followed the recommendation. Whatever conflict allegations the plaintiffs are making became irrelevant once ACIP made its recommendation.”
Gomez told CHD.TV, “When we filed our lawsuit, Rutgers was already doing clinical trials for Pfizer, Moderna and Johnson & Johnson’s COVID-19 vaccine,” which meant the university had “an incredible financial stake in not only seeing that these COVID vaccines are authorized or licensed, but [also] seeing that as many people as possible are required to take them whether they want to or not.”
Gomez told CHD.TV that legal challenges like the one against Rutgers give a voice to vaccine injury victims.
“Life appears to be normal, but it isn’t,” he said. There are thousands of people who were injured by these products and those people were “effectively silenced by the coalition of pharmaceutical companies and media outlets and government, that all came together to decide what the truth was going to be and what the public was going to be allowed to see or not see. Those people who’ve been injured must be heard.”
Otherwise, Gomez said, “We’re going to find ourselves in a situation where we don’t have the right to say yes or no to what is injected into our bodies.”
Plaintiffs’ attorneys acknowledged the presence of CHD members and community activists inside and outside the courthouse during Tuesday’s hearing.
“The courtroom was filled with plaintiffs and members of CHD, friends, family and allies in the movement,” Gomez said. “Such a show of support and solidarity was a blessing to each other and a message to the court,” Gomez said.
Gomez said the presence of supporters was significant in its own right, telling CHD.TV:
“The right to informed consent is not a right that has been entertained by a lot of decisions either in the federal courts or in the state courts.
“Judges need to understand that the public believes that the right of informed consent to medical treatment is incredibly important to them.”
Decision could set national precedent
Gomez told The Defender the court on Tuesday conducted a fair, inquisitive and thorough examination of both sides’ positions. “We were very pleased with the judge’s understanding of the material and the issues.”
Gomez said he expects the court will issue its decision within several months.
He told CHD.TV the 3rd Circuit “can decide the case based strictly on New Jersey law and the authority or statutes that affect Rutgers University specifically, or it can decide the case on broader grounds, constitutional grounds … it really depends on how the court wants to address the issues that we raised in the appeal.”
The best-case scenario, he said, is for 3rd Circuit to decide the District Court erred when it dismissed the lawsuit and to send it back to the District Court “in a posture that supports our positions and a posture that allows us to go back to the District Court,” Gomez added, stating that this would then allow the lawsuit to proceed to the discovery phase.
Conversely, the “worst-case scenario” according to Gomez, would be if the 3rd Circuit interprets Supreme Court precedent in Jacobson v. Massachusetts (1905) in such a way that “anyone can issue a vaccine mandate and it has to be followed and an individual doesn’t have the right or the dignity to decide what gets injected into their bodies or under what circumstances they lose that right.”
In this instance, Gomez said, CHD will appeal to the U.S. Supreme Court.
Gomez said that the legal precedent in the Massachusetts case was decided over a century ago, “when our rights were very different.” He said 100 years’ worth of precedent have shaped citizens’ rights since then, including “identify[ing] and recogniz[ing] the right to informed consent as a constitutional right.”
Another difference with the circumstances of the Jacobson case, according to Gomez, is that, at the time, the “smallpox vaccine had been in existence for almost 100 years,” whereas “COVID-19 vaccines did not exist even for a year before they were mandated.”
The 3rd Circuit’s decision may influence other similar cases nationwide because it will “have a nonbinding [but] persuasive authority on other courts throughout the country.”