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Peruse the headlines in most U.S. major media outlets, and you get the impression legal resistance to vaccine-related mandates, at the federal and local level, is a lost cause.
As the Wall Street Journal recently proclaimed, vaccine mandates are “surviving nearly all court challenges.”
But are vaccine mandates really bulletproof? Or do they face a viable threat from the many lawsuits filed across the country on behalf of a broad range of individuals and groups?
The many legal challenges now making their way through the system go far beyond the handful of cases that have recently received publicity in the mainstream press.
They put forth a wide variety of legal and constitutional arguments that, at least in some cases, the U.S. Supreme Court is eventually likely to address.
This article reviews some of the ongoing legal cases, beginning with the lawsuit filed against the Biden administration, and highlights some of the legal arguments against COVID vaccine mandates.
Biden mandate ‘fatally flawed’ court says
On Nov. 12, the 5th U.S. Circuit Court of Appeals barred the Occupational Safety and Health Administration (OSHA) from enforcing — “pending adequate judicial review” of a motion for permanent injunction — the Biden administration’s COVID vaccine mandate for private businesses with more than 99 employees.
In a 22-page ruling, the court called the mandate, which was supposed to take effect Jan. 4, “fatally flawed” and said OSHA shall “take no steps to implement or enforce the mandate until further court order.”
The court said the mandate fails to consider that the ongoing threat of COVID is more dangerous to some employees than others.
According to the ruling:
“The mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address.”
The case against the Biden administration was brought by a variety of entities, ranging from state attorneys general (including Texas, Mississippi and Utah), the American Family Association and multiple businesses and individuals.
Children’s Health Defense (CHD) President and legal counsel, Mary Holland, said this about the latest ruling:
“The 5th Circuit’s decision to continue to stay the Biden Administration’s OSHA mandate for corporations with 100 or more employees is welcome. As the court held, the mandate is ‘staggeringly overbroad.’
“Many lawsuits filed by different actors are now vying for appellate court hearings. A great deal is in play, and so far the Biden Administration is losing on the constitutionality of its mandate campaign.”
Texas Attorney General Ken Paxton tweeted:
Citing Texas’s “compelling argument[s],” the 5th Circuit has stayed OSHA’s unconstitutional and illegal private-business vaccine mandate.
WE WON! Litigation will continue, but this is a massive victory for #Texas and for FREEDOM from Biden’s tyranny and lawlessness.
— Texas Attorney General (@TXAG) November 12, 2021
Last week’s ruling followed a ruling by the same court which on Nov. 6 temporarily halted Biden’s vaccine mandate, stating in its brief order:
“Before the court is the petitioners’ emergency motion to stay enforcement of the Occupational Safety and Health Administration’s November 5, 2021 Emergency Temporary Standard (the ‘Mandate’) pending expedited judicial review.
“Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.”
After the Nov. 6 ruling, the Biden administration asked the temporary stay be lifted and the various lawsuits against the mandate be combined into one case that would be heard by a randomly selected Court of Appeals.
The petitioners who brought the case argued the Biden administration’s mandate, or Emergency Temporary Standard (ETS) under OSHA terminology, exceeds OSHA’s legal authority under the Occupational Safety and Health Act of 1970.
In their emergency motion, lawyers for the petitioners argued:
“[i]n an attempt to impose a nationwide vaccination mandate without approval from Congress, the executive branch has couched its COVID-19 vaccine mandate as an emergency workplace rule affecting nearly 100 million Americans. But the ETS is neither a workplace rule nor responsive to an emergency.”
State attorneys general challenge federal vaccine mandate
As of this writing, more than half (26) of U.S. state attorneys general have filed lawsuits against the Biden administration’s vaccine requirement for private businesses and federal contractors in their respective states.
“The federal government does not have the authority to unilaterally force private employers to mandate their employees get vaccinated or foot the bill for weekly testing,” said Missouri Attorney General Eric Schmitt.
Texas Attorney General Paxton said, “Even one American being forced by their government to receive a vaccine that they do not want out of fear of losing their job is an irreparable injury and a stain on defendants’ records.”
In a tweet, Paxton said:
Biden’s new vaccine mandate on private businesses is a breathtaking abuse of power. OSHA has only limited power & specific responsibilities. This latest move goes way outside those bounds. This ‘standard’ is flatly unconstitutional. I’m asking the Court to strike it down https://t.co/RGjXqMjTA1
— Attorney General Ken Paxton (@KenPaxtonTX) November 5, 2021
Paxton also said this in a statement, ABC News reported:
“The Biden administration has repeatedly expressed its disdain for Americans who choose not to get a vaccine, and it has committed repeated and abusive federal overreach to force upon Americans something they do not want … The federal government does not have the ability to strip individuals of their choice to get a vaccine or not. If the President thinks his patience is wearing thin, he is clearly underestimating the lack of patience from Texans whose rights he is infringing.”
Tennessee Attorney General Herbert H. Slatery III described the mandate as an “unprecedented expansion of emergency regulatory powers by a federal agency.”
State governors joined in criticizing the mandates. Florida Gov. Ron DeSantis announced his state is suing the Biden administration, as well as NASA and other federal agencies, over the vaccine mandate.
“We started with 15 days to slow the spread and now it’s get jabbed or lose your job,” DeSantis said. “If this was such a ‘grave danger,’ why did it take 57 days from the announcement by President Biden to publish the rule and why won’t it take effect until Jan. 4 — another 60 days?”
Georgia Gov. Brian Kemp said in a statement “[w]e will not allow the Biden administration to circumvent the law or force hardworking Georgians to choose between their livelihood or this vaccine.”
The Republican National Committee has also filed a lawsuit against the federal vaccine mandate.
Also, 10 states — led by Missouri — launched a separate lawsuit against the Biden administration’s vaccine mandates for healthcare workers.
A diverse range of legal arguments
Legal scholars — many of them based at universities, which have been bastions of support for COVID-related measures of all sorts — claim the Biden administration finds itself on solid legal footing in enacting and enforcing these mandates.
However, challengers have put forth a broad array of legal arguments disputing that claim.
For instance, in the joint filing by Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota and Wyoming, the lawsuit’s introduction states:
“President Biden has arrogated to the Executive Branch the unilateral power to mandate that all employees of federal contractors be vaccinated. This power grab is sweeping in its scope. Employees of federal contractors constitute one-fifth of the total U.S. workforce. And the mandate goes so far as to demand vaccination even from employees who work entirely within their own home. That is unconstitutional, unlawful and unwise.”
In the lawsuit jointly filed by the states of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia, the mandate is described as:
“ … astonishing — not only for its tremendous breadth and unworkably short deadline, but also because so little care has been given to how it will work in the real world. The mandate, as the federal government has conceived, and thus far implemented, applies not only to contractor employees working on federal contracts, but also any employee that may have contact with someone working on a federal contract (even if that contact is nothing more than walking past them outside, in a parking lot). There are no exceptions for employees that work alone, outside or even exclusively remotely.”
- The employee mandate (for private companies) violates employees’ constitutional right to bodily integrity and to refuse medical procedures.
- The employee mandate and contractor mandate violate the Equal Protection Clause.
- The employee mandate and contractor mandate violate the Emergency Use Authorization (EUA) statute.
- The employee mandate is subject to strict scrutiny.
- The contractor mandate violates the Tenth Amendment.
- The contractor mandate violates the Procurement Act.
- The contractor mandate is unlawful because it conflicts with another federal statute (the EUA statute).
- The contractor mandate is unlawful under the Procurement Policy Act.
As stated in the lawsuit’s introduction:
“Those mandates — one relating to federal contractors and subcontractors (“Contractor Mandate”) and another relating to all federal employees (“Employee Mandate”) — transgress numerous constitutional and statutory requirements. They are, in other words, patently unlawful. But if they are permitted to go into effect, contractors and employees will rapidly be forced to comply with these illegal mandates and this Court’s power to prevent harms resulting from those illegal mandates will rapidly diminish into near-nothingness.
“A TRO [temporary restraining order] is thus appropriate to prevent irreversible harm while the State’s request for a preliminary injunction is decided. And such a preliminary injunction is warranted here, since the mandates violate both constitutional and statutory provisions, will cause irreparable harm, and the balance of harms and public interest favor enjoining these illegal mandates.”
The Arizona attorney general presented numerous legal citations and precedents to justify the state’s arguments.
For example, with reference to the right to refuse unwanted medical interventions, Cruzan v. Dir., Missouri Dep’t of Health (1990) found that “[A] competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.”
Arizona’s lawsuit states this right is rooted in “the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment” (Washington v. Glucksberg, 1997).
According to the complaint, protection of bodily integrity has its own set of legal precedents. For example, a 1997 decision by the Ninth Circuit, Plumeau v. Sch. Dist. No. 40 Cty. of Yamhill, found individuals have a “constitutional right to be free from state-imposed violations of bodily integrity.”
A 2002 decision by the same court, in Benson v. Terhune, found “[D]ue process … substantively protects a person’s rights to be free from unjustified intrusions to the body, to refuse unwanted medical treatment and to receive sufficient information to exercise these rights intelligently.”
The Arizona legal challenge also referenced the unconstitutional conditions doctrine, where the government may not coerce people into giving up their constitutional rights nor condition employment “on a basis that infringes [an employee’s] constitutionally protected interests,” as found in Perry v. Sindermann (1972).
A 2013 decision, Koontz v. St. Johns River Water Mgmt. Dist., similarly found that “[T]he unconstitutional conditions doctrine forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them …”
The lawsuit further argued that the EUA statute, under which all COVID vaccines are available in the U.S., expressly requires disclosure of “the option to accept or refuse administration” of a product approved only under an EUA, further arguing that legislative history and prior agency interpretation of the statute has created a precedent where there is a right to refuse EUA products.
Specifically, the lawsuit argues that “[w]hen Congress adopted the EUA statute, it interpreted the statute as conferring “the right … to refuse administration of a product.”
According to the Arizona complaint:
“…the whole point of the mandates is to deny any such ‘option’ to those governed by them. Notably, only the Pfizer vaccine has received [U.S. Food and Drug Administration (FDA)] approval, and none of the stock of it in the U.S. is actually the FDA-approved version (and instead is entirely under the EUA label subject to the EUA-mandated conference of choice).”
Arizona’s lawsuit also cites the Equal Protection Clause, arguing the Biden administration is demonstrating “unconstitutional favoritism towards non-citizens not lawfully present in the U.S.” by expressly refusing “to impose any vaccination mandates on unauthorized aliens, instead offering them a completely uncoerced choice as to whether to accept vaccination or not.”
According to the complaint, there is “… no equivalent respect for the rights of U.S. citizens and lawful permanent residents who are the target of numerous such mandates.”
The Arizona lawsuit also tackles states’ rights, noting the precedent set in Zucht v. King (1922): “[i]t is well-settled that the power to impose vaccine mandates, to the extent that such power exists at all, is part of the police powers reserved to the States.”
Texas, in its lawsuit challenging the vaccine mandates, also made the states’ rights argument:
“Our Constitution provides for a federal government of limited powers, and it does not and has never had a general police power that would give it the right to dictate any and every facet of its citizens’ lives. But Defendants have no regard for the limits that the Constitution and federal statutes impose upon them. Defendants’ actions are nothing short of a dramatic infringement upon individual liberties, principles of federalism and separation of powers, and the rule of law … And Defendants effectively claim for themselves a general police power to control American life, infringing on states’ sovereignty and usurping the powers reserved to the states under the Constitution.”
States’ powers were also addressed by Kentucky Attorney General Daniel Cameron, who said he takes “the issue of federal overreach seriously,” adding “[t]he Constitution lays out critical rules by which the executive branch must operate … Congress and the states have their own powers, which the administration can’t just take over because it wants to.”
Arizona characterized the Biden administration’s attempts to impose its vaccine mandates as “unprecedented,” and referenced the labor market’s ongoing “Great Resignation” (in a shot at the “Great Reset”):
“Defendants thus do not have delegated authority to impose these unprecedented mandates, the likes of which no prior Administration has ever attempted. Moreover, while the President has power to employ procurement authority to improve efficiency of federal contracting, there is every reason to believe that these mandates will lead to inefficiency: particularly as they are likely to provoke employee resignations that will increase expenses, particularly in the current tight labor market already undergoing a ‘Great Resignation.’”
‘At least 100 active lawsuits out there’
The lawsuits filed by state attorneys general and governors represent just the tip of the iceberg when it comes to legal challenges of the Biden administration’s vaccine mandates, and local mandates implemented at the municipal, county and state level.
According to Ray Flores, CHD legal counsel:
“There are many, many lawsuits being brought right now, by every type of attorney firm, organization and attorneys general. And they’re fighting everything from employer mandates to school mandates to federal contractor [mandates]. Laws set forth by the Biden administration or private employers.”
Flores said there are five categories of lawsuits being filed at the present time: those by, or on behalf of, private employees, municipal employees, federal contractors, military personnel, and faculty, staff, and students at educational institutions.
For instance, police unions are among the most active opponents of the mandates. In New York City, the Police Benevolent Association filed a lawsuit against the administration of Mayor Bill De Blasio, arguing that “[t]he City has provided no explanation, much less a rational one, for the need to violate the autonomy and privacy of NYPD police officers in such a severe manner, on the threat of termination.”
According to the lawsuit, the current policy to either mandate vaccines or test for COVID-19 is “sufficient enough.”
The New York City firefighters’ union also sued the city government over its vaccine mandate.
In Chicago, municipal employees sued the city and state over their vaccine mandates, arguing the governor’s mandate “far exceeds the power of the governor granted to him by Illinois statute,” and that “[t]he mandate, and the Executive Orders, violate the constitutional and fundamental rights of those who either choose not to be vaccinated, or choose not to disclose their vaccination status to either the state, or their employers.”
Labor unions for the Chicago Police Department also sued the city, as did Chicago firefighters. A judge issued a temporary stay of the city’s order for police to get vaccinated, but another judge did not grant the temporary restraining order sought by city firefighters and other municipal employees.
Firefighters in Florida’s Orange County, which encompasses the city of Orlando, have also sought legal remedy, suing the county over its vaccine mandate.
These and many other similar lawsuits from police unions and first responders throughout the U.S. — those who a year ago were hailed as “essential workers” during the outset of the pandemic — have caught the attention of, and been met with chagrin by, elements of the mainstream press.
For instance, The Economist recently ran a story with the somewhat diminutive title “Cops hate vaccine mandates, and the city leaders imposing them,” accompanied by the subtitle “Hands up, no shots.”
In contrast, Governor De Santis of Florida has used vaccine mandates imposed on police officers in other locales across the U.S. as an opportunity to recruit those officers, inviting them to come to Florida and going as far as to offer them signing bonuses.
Other entities also filed lawsuits. For example, The Daily Wire sued the Biden administration and requested an emergency motion to stay the mandate, announcing the news with the Twitter hashtag #donotcomply.
According to Harmeet K. Dhillon, a partner of the Dhillon Law Group, which is representing the conservative news outlet in its lawsuit:
“The federal government lacks the legal authority to compel private employers to play the role of vaccine or COVID police, lacks the police power to force private employees to undergo medical treatment and may not ignore constitutional limits on its ability to regulate every aspect of our lives.
“The Daily Wire has well over 100 employees. We will not enforce Joe Biden’s unconstitutional and tyrannical vaccine mandate. We will use every tool at our disposal, including legal action, to resist this overreach.”
More to come,” wrote Jeremy Boreing, co-founder and co-CEO of The Daily Wire, adding: “[w]e’re not the enforcement arm of the federal government. Forcing Americans to choose between their livelihoods and their freedom is a grotesque abuse of power and we won’t be a party to it.”
Brandon Trosclair, who operates 15 grocery stores in Louisiana and Mississippi, sued the Biden administration with the assistance of the Liberty Justice Center, whose president and co-founder, Patrick Hughes, argued “[t]he Biden Administration’s vaccine mandate represents the greatest government overreach of our generation, and we are elated that the court recognizes the ‘grave danger’ it poses not only to our clients, but all Americans.”
Two Wisconsin businesses also sued on similar grounds, with the assistance of the Wisconsin Institute for Law & Liberty. Rick Esenberg, the institute’s president and general counsel, said “[t]his new rule is illegal and unconstitutional. It circumvents the normal legal process, along with Congress, to claim emergency powers to impose a mandate on American business.”
Companies in Michigan and Ohio, and as a group of remote workers based in Texas, are among others that have sued Biden’s administration.
A Pennsylvania lawsuit filed on behalf of employees of Penn Medicine (the University of Pennsylvania Health System) against Penn Medicine, U.S. Secretary of Labor Scott Ketcham and U.S. Secretary of Health and Human Services Xavier Becerra, makes the argument the act of receiving or declining vaccination has become a political act.
Therefore, when employers compel their employees to get vaccinated, they are forcing them to engage in political speech, which is tantamount to a violation of the First Amendment.
Arguing that “I had to stand up and try to do something,” Dr. Aaron Kheriaty, professor of psychiatry at the University of California-Irvine and director of the UCI Health’s Medical Ethics Program, is challenging the vaccine mandate imposed by his employer, who has suspended him.
Lawsuits against the mandates have also been filed by religious groups, and on religious grounds. For example, the Southern Baptist Theological Seminary and Asbury Theological Seminary, represented by the Alliance Defending Freedom, sued the Biden administration. In a press release, the organization said, “The Biden administration lacks jurisdiction to dictate employment practices to religious institutions.”
Albert Mohler, president of the Southern Baptist Theological Seminary, said:
“[i]t is unacceptable for the government to force religious institutions to become coercive extensions of state power. We have no choice but to push back against this intrusion of the government into matters of conscience and religious conviction.”
In all, according to Flores, “I would [estimate] that there are 100 active cases out there right now.”
A tangled web of rulings — and mixed results
The general consensus according to the mainstream media is that judges are “overwhelmingly” upholding vaccine mandates in most of the country.
As it turns out, results actually are mixed. According to CHD’s Holland, “it’s a bumpy road. It’s definitely not flat and without bumps in the road.”
Case in point: In October, a federal judge granted a temporary injunction requested by 17 medical workers in New York State against the state’s vaccine mandate for employees in the healthcare sector.
The employers argued New York’s failure to consider religious exemptions violated their constitutional rights. More recently though, the Second Circuit Court of Appeals struck down this temporary injunction.
In another example, a ruling by a federal judge in October temporarily barred United Airlines from placing workers seeking an exemption to the company’s vaccine mandate on unpaid leave, until oral arguments could be heard in the case.
As stated in the lawsuit:
“United’s actions have left Plaintiffs with the impossible choice of either taking the COVID-19 vaccine, at the expense of their religious beliefs and their health, or losing their livelihoods. In doing so, United has violated Title VII [of the Civil Rights Act] and the ADA [Americans with Disabilities Act] by failing to engage in the interactive process and provide reasonable accommodations, and also by retaliating against employees who engaged in protected activity.”
Later in October, a federal judge extended the temporary order against United Airlines. However, more recently, another federal judge refused to issue a preliminary injunction against United’s vaccine mandate, based on the claim that the plaintiffs had not established that they would suffer “imminent, irreparable harm” if a preliminary injunction was not issued.
As far back as September, New York City Mayor Bill De Blasio’s administration was temporarily blocked from enforcing a vaccine mandate for teachers and nearly all adults inside the city’s public school buildings.
The block was later lifted, with the plaintiffs taking their appeal to the Supreme Court.
In late October, a district court judge in Washington, D.C. ordered the Biden administration to refrain from terminating both civilian and active-duty military personnel pending a ruling on their lawsuit against the administration over the religious exemptions they requested for the COVID vaccines.
The plaintiffs’ attorney, Michael Yoder, described the mandate as “dangerous to American liberty,” arguing “our Constitution protects and secures the right to remain free from religious persecution and coercion.”
Yoder added: “[t]he Biden administration has shown an unprecedented, cavalier attitude toward the rule of law and an utter ineptitude at basic constitutional contours.”
More recently though, a federal judge declined to provide the emergency relief sought by the plaintiffs in the above case.
Similarly, a federal judge in South Carolina recently denied a request for a restraining order that would have blocked vaccine mandates for up to 125 municipal employees in that state. Those employees refused vaccination on religious grounds.
Conversely, earlier this month, a federal judge temporarily barred an Illinois hospital system from placing workers with religious exemptions on unpaid leave.
The impact of this latter category of lawsuits, seeking recognition of religious exemptions, appears to have caught the attention of the White House and the Department of Justice. In late October, a leaked audio from the White House indicated awareness of the moral and ethical issues attached to these requests for exemptions from the vaccine mandate.
Holland pointed to the diverse range of groups, both religious and non-religious, that are challenging these mandates in court, in some instances with the support of CHD.
“Many different organizations, particularly those focused on religious liberty, have been very engaged … Liberty Counsel is one … the Rutherford Institute, the Pacific Justice Institute, the Health Freedom Defense Fund, ICAN,” said Holland.
She added, “[t]here are many other legal organizations that are pushing back against what we consider to be unethical, ill-considered and illegal mandates.”
CHD helped bring several mandate-related lawsuits before the courts. According to Holland:
“We at Children’s Health Defense are at the forefront of litigation on behalf of people who are facing punitive consequences because of their choice to refuse unwanted medical care, which we believe is a fundamental right under Supreme Court precedent.
“We have a case on behalf of New York City teachers, Kane et al v. De Blasio, in which the teachers have asserted religious exemptions, natural immunity exemptions, medical exemptions, and those have been deprived.
“We have a case on behalf of healthcare workers in New York State, where the [state] Department of Health has deprived those individuals of religious exemptions that are otherwise available.
“In Tennessee, we have a case against the FDA, in part on behalf of military people who are being subjected to what we believe is an illegal mandate of Emergency Use Authorization vaccines, and it’s particularly outrageous when it’s being applied to individuals who have suffered COVID and who have scientific proof of immunity.
“We have a case on behalf of the children who were ordered to school in New York State when the Legislature repealed their religious exemption. We have a case on behalf of children in New York State with medical exemptions from their licensed treating physicians who are being denied the opportunity to go to school by local school districts. We have a case right now on behalf of a child who has severe asthma and anxiety disorders, and she’s being forced to wear a mask, leading her to have very serious medical problems.
“We also have cases on behalf of other employees in the country, particularly in California, which, like New York, has been aggressive in its readiness to impose mandates on people, with very little consideration of individual factors.”
Did Supreme Court really ‘reject’ challenges to Maine’s vaccine mandate?
Perhaps the most publicized “defeat” for those seeking to block vaccine mandates, however, came in the case of a group of healthcare workers from the state of Maine. The workers sought to block the state’s vaccine mandate for those employed in healthcare on religious liberty grounds, as Maine does not consider requests for religious exemptions.
The plaintiffs argued the mandate was unconstitutional and violated Title VII of the Civil Rights Act, which prohibits employment discrimination based on religion.
Twice, the Supreme Court refused to block Maine’s mandate in a case known as Does v. Mills. Most mainstream media portrayed the decision as as a “done deal,” a significant defeat for those opposing vaccine mandates in any form, and as a harbinger for how the Supreme Court is likely to rule on any future cases it may consider related to vaccine mandates.
But, what does the Supreme Court’s refusal to block Maine’s mandate at this time really mean, from a legal standpoint?
According to Flores, a refusal to issue an injunction, or to otherwise temporarily block a mandate from taking effect on an emergency basis, is not the same as a legal defeat.
“What the people who are bringing these cases are doing is they’re trying to get a temporary restraining order or a preliminary injunction against the defendant. And those are harder to prove, because you have a higher standard to get an injunction than to have a case decided on the merits.”
Defendants also engage in delay tactics, according to Flores.
“What happens in these cases is that the lawsuit gets filed and then it goes through litigation, meaning that the other side tries to put a stop on it and slow it down, or make a motion to dismiss … they’re trying to get rid of the case.”
Holland explained the rationale behind the Supreme Court’s Does v. Mills decision not to issue an emergency writ at this time:
“They lost at the trial court level. They lost at the First Circuit Court of Appeals and on an emergency basis they applied to the U.S. Supreme Court.
“Three justices, Thomas, Alito, and Gorsuch, said this is pressing; these people [will] lose their jobs. We should take the case now.
“Two justices, the most recently appointed to the court, Amy Coney Barrett, and Brett Kavanaugh, both said, ‘we agree with you three, this is a really important issue, but we should not take this one with urgency. We should take this up on a full record. In other words, we should have a case adjudicated at the trial court level, not just a preliminary injunction. We should have a trial in the record. We should have depositions. We should have documents. We should have a court verdict. We should know a lot more before we jump into this contentious issue at the Supreme Court.'”
Holland said there is significance behind the court’s rationale and its actions thus far:
“[It] means five justices are on the record now, with their names saying, ‘We need to take up this issue.’ We also know that Amy Coney Barrett, Kavanaugh, Gorsuch are the Justices that Trump appointed. They all were nominated to the Supreme Court in large part because of their concerns about religious freedom. So this is absolutely going to go to the [Supreme] Court, and likely very soon.”
Holland said she believes there’s a rationale for them to wait and take a better prepared case or to take two cases raising the same issue and join them, as they did in Roman Cath. Diocese of Brooklyn v. Cuomo and Agudath of Israel v. Cuomo (2020).
“Clearly they will have many cases to choose from,” Holland said.
Flores pointed out how infrequently the Supreme Court actually grants emergency writs:
“An emergency writ, it’s only going to be heard or granted [far less than] 1% of the time by the Supreme Court. But the news will come out and say that Maine’s mandates were upheld. That’s not exactly what happened. Justices Barrett and Kavanaugh said that they were exercising their discretion not to consider it without a full record. So, in other words, that it’s a little premature to be considering the case.”
Flores said cases that don’t get heard on emergency appeal are “going to have to kind of slow walk … through the appellate court, which takes months, and then eventually to petition the Supreme Court to issue a ruling.”
Flores criticized how the media has covered the legal cases against the vaccine mandates more broadly:
“What happens with the news media is that a temporary injunction is denied or an emergency writ is not heard by the Supreme Court or … by an appellate court. Then the news jumps out immediately and says ‘vaccine mandate upheld’ … They’re not being upheld. They’re lying. It’s before [the case is] heard. So there’s a difference between a temporary injunction being denied and a mandate being upheld.”
Flores said the media, as quick as they are to announce a setback, “are reluctant to show any of our wins.”
Referencing the cases filed by state attorneys general and governors, Flores expressed his view regarding their likelihood to make their way before the Supreme Court:
“Those are the ones that are going to be most likely to be heard by the Supreme Court. And the assessment is that the cavalry has arrived [with] the AG’s coming in … [this] is a good way of [describing when] a boutique issue becomes … completely mainstream. And CHD has been critical toward this progress.”
The Arizona lawsuit argued that the Supreme Court should apply strict scrutiny, rather than a rational basis review, to Biden’s vaccine mandate — what does this mean, and why is it significant?
According to Holland, under strict scrutiny:
“The government has to prove that there’s a compelling state interest and that the restrictions are the least restrictive possible. That’s a very high bar, and usually that distinction between rational basis and strict scrutiny determines the outcome of the case.”
This is particularly significant with regard to the claims for religious exemptions, Holland said:
“I think what’s fairly clear right now is that when it comes to religious exemptions, the [Supreme] Court will have to be applying strict scrutiny, and that is very, very hard for the government. So I’m very hopeful that we will end up with, as a right, a religious exemption based on the First Amendment’s free exercise of religion clause.”
Several legal precedents regarding the applicability of strict scrutiny were referenced in the Arizona lawsuit. These include Bernal v. Fainter (1984), holding that an “employee mandate is subject to strict scrutiny and must be struck down unless it “advance[s] a compelling state interest by the least restrictive means available.”
Furthermore, Fields v. Palmdale Sch. Dist., a 2005 decision from the Ninth Circuit, held that “Governmental actions that infringe upon a fundamental right receive strict scrutiny.”
“Fundamental right” is not an insignificant term from a legal standpoint. For instance, in Coons v. Lew, a 2014 decision issued by the Ninth Circuit, the “rights to determine one’s own medical treatment and to refuse unwanted medical treatment” are considered fundamental rights, and individuals have “a fundamental liberty interest in medical autonomy.”
Another Ninth Circuit decision, Franceschi v. Yee (2018), expanded on this, finding that the right to “bodily integrity” is also “fundamental” and “deeply rooted in this Nation’s history and tradition.”
And, in a concurring decision written by then-Supreme Court Justice John Paul Stevens in the 1990 case Washington v. Harper, Stevens argued:
“Every violation of a person’s bodily integrity is an invasion of his or her liberty. The invasion is particularly intrusive if it creates a substantial risk of permanent injury and premature death. Moreover, any such action is degrading if it overrides a competent person’s choice to reject a specific form of medical treatment.”
The Arizona lawsuit also argued that Jacobson v. Commonwealth of Massachusetts (1905), a case held up by proponents of vaccine mandates as binding precedent that supports the government’s right to impose such vaccination requirements, is not applicable. [As written in the lawsuit, “[p]ublic debate about government vaccine mandates has often focused on the Supreme Court’s decision in Jacobson v. Commonwealth of Massachusetts.”]
In Jacobson, the Supreme Court upheld the legal authority of states to impose vaccine mandates. The Arizona lawsuit, however, rejected the applicability of the Jacobson decision for several reasons.
It is noted that the Supreme Court did not consider the constitutionality of the federal government’s issuing such mandates, “which ha[s] always been considered as being part of the police power held exclusively by the States, to the extent that such power exists at all.”
Furthermore, the Arizona lawsuit said the Jacobson case was decided just months before the Supreme Court issued its ruling in Lochner v. New York (1905), holding that limits to employment time violated the Fourteenth Amendment.
According to the lawsuit, in this particular case, coming from the same era as Jacobson, “is now widely regarded as having been relegated to the ash heap of jurisprudential history.”
The lawsuit further argues that “even under the plain language of Jacobson, a public health measure may violate the Constitution,” further noting that in the 100-plus years since that decision, “there has been substantial development of federal constitutional law in the area of civil liberties.”
It also notes that the Jacobson decision was the only legal citation that then-Supreme Court Justice Oliver Wendell Holmes Jr. provided in support of his infamous statement that “[t]hree generations of imbeciles are enough,” in his decision in Buck v. Bell (1927), a decision that found eugenics-based sterilization laws to be both constitutional and socially desirable.
As argued in Arizona’s lawsuit, “[w]hile Buck v. Bell has never been overruled, its inapplicability today is not seriously disputed. The same result should obtain for Jacobson.”
The Arizona lawsuit also references last year’s Supreme Court decision in Roman Cath. Diocese of Brooklyn v. Cuomo, where Justice Neil Gorsuch wrote:
“In Jacobson, individuals could accept the vaccine, pay the fine [$5, or about $140 today], or identify a basis for exemption. The imposition on Mr. Jacobson’s claimed right to bodily integrity, thus, was avoidable and relatively modest. It easily survived rational basis review, and might even have survived strict scrutiny, given the opt-outs available to certain objectors.”
In other words, the mandate requirements upheld in the Jacobson decision contained several exemptions.
In contrast, according to the text of the Arizona lawsuit, “[t]here is nothing ‘avoidable’ or ‘relatively modest’ about [the] Defendants’ draconian “get the jab or get fired” mandate.”
The Arizona lawsuit further noted:
“The modest penalties involved in Jacobson were aimed at fighting a significantly more deadly disease: the death rate for smallpox infection is about 30%, whereas the death rate for COVID-19 is about 0.15%, which is 200 times lower than the death rate for smallpox.”
Commenting on the applicability of the Jacobson decision today, Holland said:
“Many of us believe that decision has had a really sinister shadow … it justified sterilization. In fact, we found it was implicitly the basis for the Supreme Court’s decision to intern people of Japanese-American descent based on race during World War II. It’s essentially a eugenicist decision.”
Holland added: “It was a very different year, a very different vaccine program, very different risks for smallpox. So I think Justice Gorsuch in particular last year [in Roman Cath. Diocese of Brooklyn v. Cuomo] signaled that he is open to reconsidering the scope of [Jacobson].”
Holland said the Jacobson decision, in addition to recognizing the right to an “opt out,” also “doesn’t explicitly deal with this issue of religious exemption.”
Why is last year’s Supreme Court ruling in Roman Cath. Diocese of Brooklyn v. Cuomo relevant and significant, however? According to Holland:
“That was not a case explicitly about vaccine mandates, but it was about lockdowns and about Governor Cuomo’s mandate towards religious institutions about social distancing that the State was not applying to secular institutions like Big Box stores or liquor stores.
“The Supreme Court decided, in an unsigned per curiam decision, that you can’t have different regulations about social distancing and numbers of people indoors for religious organizations and secular organizations. That discriminates against religion. But there was a very powerful concurrence by Justice Gorsuch where he said, essentially, there is no pandemic exception to the Constitution, and the right of free exercise of religion is protected by the First Amendment.”
Why fight the mandates?
For many proponents of mandates, though, such arguments may appear to be just a bunch of legalese. Shouldn’t the danger of a pandemic cut through all this, slice through the red tape and the cumbersome legal process, and come immediately into effect, to protect public health and save lives?
As Holland explained:
“There have been mandates for healthcare providers, for some first responders, people in the military, but up until now there have never been universal vaccine mandates for adults or on a wide basis for employment. These mandates are not yet universal, but what is occurring on a global scale is absolutely unprecedented.”
Mirroring an argument put forth in the Arizona lawsuit, Holland added:
“The other thing that’s unprecedented in the current context is that the available vaccines in the United States are not licensed, they are emergency use-only vaccines, and federal law makes it very clear that because these vaccines are experimental, they have not been proven safe and effective. These are experimental biologics. These are not known to be safe because nobody knows what the effects are going to be 20 years from now.”
However, as the counterargument goes, schoolchildren have been required to receive a whole slate of vaccines for several decades. To this point, Holland argued:
“It’s true that children have been required to get a battery of vaccines for decades in order to attend school, and there have been limited exemptions based on religion, philosophy and medicine, and the health freedom movement has been pushing back against that for many years because we believe that all medical mandates are unfounded. Healthcare decisions that carry risk must be between healthcare providers and individuals. The government should not interfere.”
Holland highlighted that the disputes around mandates address the heart of “rule of law.” She said:
“I’m hopeful we’ll be able to overcome these mandates because they are irrational,” said Holland. “These vaccines are not stopping transmission. They are for individual benefit. Allegedly I’m less likely to get a severe case of COVID or die from it if I take the vaccine. Well, you know, the only public policy rationale for that is to not overcrowd hospitals, but we have effective early treatments available, such as ivermectin, hydroxychloroquine and many others. That rationale for mandates just doesn’t hold up.”
Holland said shed doesn’t believe there’s any solid public policy rationale for the mandate of this vaccine, “which leads me to believe that the true rationale here has nothing to do with infection control,” added Holland.
“But it likely is connected to some of the agendas that you’ve already written about like personal carbon allowances, surveillance, digital identity and so on, because the public health rationale…depriving people of health care benefits to serve public health? That’s just absurd. It’s truly Kafkaesque.”
What comes next?
In looking at developments ahead and what direction court rulings may ultimately go in, Holland expressed confidence the Supreme Court will, in the near future, hear mandate-related cases.
“Whether they overrule Jacobson or reinterpret it or acknowledge that it doesn’t trump the First Amendment,” Holland said, “I’m not sure how it’s going to come out, but I do expect that the Supreme Court will broaden religious and medical exemption rights.”
“I believe it’s a matter of time before we get a scientifically based natural immunity exemption. It’s irrational not to grant exemptions to those who have had COVID and present no risk to others. That goes against every other medical mandate we’ve ever seen.”
Finally, reflecting upon a sentiment that even mainstream media outlets have been obliged to admit in recent weeks — that the Supreme Court will, sooner rather than later, formally get involved with this issue — Holland said, “within the next nine months, certainly we will see the Supreme Court really wrestling with this.”