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The court should not have dismissed a lawsuit filed last year by Children’s Health Defense (CHD) and 13 students challenging Rutgers University’s COVID-19 vaccine mandate policy, according to the plaintiffs’ attorneys.
In a reply brief filed March 2 in the U.S. Court of Appeals for the 3rd Circuit, attorneys for CHD and the students argued the district court erred when it dismissed the case.
The appeal disputed whether, as a university, Rutgers has the authority to mandate vaccination. It also challenged the dismissal on the basis of informed consent, contesting the notion that an experimental drug can be mandated at all.
After CHD appealed the ruling in January, Rutgers and CHD filed reply briefs. The court may next set up a panel to hear oral arguments, but it can issue a decision at any time.
“CHD v. Rutgers raises significant issues which will have a profound impact on all students attending college in New Jersey and possibly across the nation,” Julio C. Gomez of Gomez LLC, lead counsel in the case, told The Defender.
“These issues include whether colleges and universities can mandate experimental vaccines during a pandemic even though the health authorities of the state (departments of health, governors, state legislatures) chose not to do so.
“The case also raises the most important issue of all, whether every person has a fundamental constitutional right to informed consent and to refuse unwanted medical treatment. Do you have the right to say “no” to experimental medical treatment without coercion?
“We are hopeful that the 3rd Circuit Court of Appeals will schedule oral arguments to address these important questions.”
History of the case and current arguments
In the original lawsuit filed in August 2021, CHD and the students sued Rutgers University, its board of governors, Rutgers President Jonathan Holloway and others over the university’s decision to mandate COVID-19 vaccines for students attending school in the fall.
The lawsuit alleged Rutgers’ policy is a violation of the right to informed consent and the right to refuse unwanted medical treatments.
It also alleged that because Rutgers was working with Pfizer, Moderna and Johnson & Johnson to study and develop their vaccines in ongoing clinical trials, it would benefit financially if more people are required to take the shots.
More than a year after CHD sued the university — on Sept. 9, 2022 — Judge Zahid N. Quraishi granted Rutgers’ motion to dismiss in district court.
CHD’s appeal, filed in January, sought to demonstrate the court failed to accept the plaintiffs’ allegations as true, which is the legal standard in a motion to dismiss, Gomez told The Defender in January.
The appeal also continued to underscore the original allegations regarding Rutgers’ lack of authority to impose a mandate and the students’ right to informed consent.
Rutgers’ attorneys argued in their brief responding to the appeal that the university has the legal authority to mandate student vaccination for any vaccine that the Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices (ACIP) recommends.
CHD disagreed, arguing that ACIP requires recipients to have the option to refuse experimental vaccines — a right Rutgers did not afford to students who wished to remain enrolled in the University.
“ACIP acknowledges a student’s right to exercise informed consent freely — Rutgers does not,” CHD’s response brief stated.
Rutgers’ attorney also justified the university’s right to mandate the COVID-19 vaccine for all students by pointing to the 1905 Supreme Court case Jacobson v. Massachusetts, which addressed the smallpox vaccine, as precedent.
In that case, the court found that a state may require all residents to take a vaccine, without exemptions, if a rational basis exists to determine that such a step is necessary to mitigate a public health emergency.
CHD said Rutgers’ arguments were not informed by a fair reading of Jacobson. It said in this case, there was no evidence when the mandate was imposed in fall 2021, or now, that Jacobson v. Massachusetts would apply:
“If the state of science is such that it is premature or it cannot be determined if these products are safe and effective, then Rutgers is not capable of making any determination that they can protect public health or public safety, and could not possibly satisfy the requirement in Jacobson that these vaccines have ‘a real and substantial relation’ to the object of protecting people on campus.”
CHD argued that both Rutgers and the district court judge failed to take into consideration the fact that COVID-19 is not a vaccine-preventable disease, so the vaccines do not protect people from infecting one another in the way implied in the mandate rationale.
Rutgers ignored the fact that the plain language of state law does not give it the authority to mandate the COVID-19 vaccine, according to CHD’s brief.
Rutgers disputed the allegation that it coerced students to be vaccinated or violated their right to informed consent because it gave them several months to decide whether they wanted to be vaccinated, apply for an exemption or pursue degrees elsewhere.
CHD disagreed, arguing:
“This lawsuit would not exist if Rutgers wasn’t requiring students to take a vaccine. Of course, Rutgers forced its students to take the vaccine against their will — the consequence of kicking a student out of college is intended precisely to coerce a student to act in a particular way, against the student’s individual judgment.
“This Court should not turn a blind eye to such coercion, as the district court did, and as Rutgers does.”
After the appeals court rules, whichever side loses is likely to appeal to the Supreme Court, Gomez said.