Now that I am finished with Kelly Sutton’s medical board hearing, (or at least the evidentiary part of the case), it is time to focus on the COVID mandate situation. (And by the way, if you are interested in the California medical exemption issue, you might want to consider donating to her legal defense fund. here is the link:
The Lawsuits against the COVID mandate
Most of you know about the two recent lawsuits against the COVID vaccine mandates, but let me give you my take on them.
The Methodist Hospital employees lawsuit
As you know, over 100 employees of the Methodist Hospital sued to try to stop the Hospital’s COVID mandate. The case didn’t go well in the first round. The judge denied the plaintiffs’ motion for a preliminary injunction, basically saying injunctive relief was unnecessary because if they would prevail at trial they could get money damages in the form of lost wages, etc. That’s a fair point insofar as an injunction is an extraordinary remedy only available if money damages are not adequate. I suppose you could argue it either way about a job, but the judge said money was an adequate remedy. Several days later the judge dismissed the case, the operative and memorable part of the judge’s opinion was that the hospital is trying to protect its employees and its patients against the pandemic disease and that takes precedence over the “vaccine preferences” of individual employees. If you are against vaccine mandates, the judge’s decision is disheartening. Some say that the precedential effect is limited since arguably the core issue in the case had to do with Texas employment law.
FYI: I spent 20 plus years practicing law in Houston, and I have appeared in front of the judge in the Methodist case several times, and he would be the Right Honorable Lynn Hughes. I guess he is about my most favorite federal judge I have ever appeared in front of. I view him as a libertarian and a guy who is not afraid to do justice even if it means he gets reversed on appeal. He is also not afraid to take on and rule against the government. In fact, in my book, Galileo’s lawyer, one of the cases I discuss is an injunction action I filed on behalf of a group of dying patients who have kicked off an experimental treatment by the FDA and the other big hospital in Houston, MD Anderson. He did right by these patients, and I feel forever indebted to him for that. As I said, Judge Hughes knows how to dispense justice. The point being that if a libertarian and fearless judge like Lynn Hughes is not going to uphold the “vaccine preferences” of a minority of people, that is not a good sign. Or, at least it isn’t until the US Supreme Court gives guidance beyond and different from Jacobson, which to the great chagrin of most of you, is still the law of the land.
And Judge Hughes did not pay much attention to the whole “EUA vaccines are experimental, can’t be mandated, and require informed consent” argument.
One thing that most people do not understand is that vaccine mandate laws are a matter of state law, not federal law (except for federal employees). Jacobson and all the other cases upholding state or local mandatory vaccine laws are based on the state’s power to protect the public under the state’s police powers. The cases hold that there is no federal constitutional right protecting against a state’s decision to issue a vaccine mandate under the 14th Amendment (which only protects people against government action). Ok, technically the case holds that there might be a right to challenge, but there is extreme deference given to the authorities who have police power. While the constitutional tests/language about review standards have changed since 1905 when Jacobson came down, the deference to the state’s police power has not, at least not yet.
Jacobson was the rationale and precedent for the California courts’ rejection of all the SB 277 lawsuits, or at least the parts of those decisions which dealt with the federal constitutional claims. (Federal and state education claims faired no better). So I think the short of it is that changing the result in these cases in all likelihood requires having the Supreme Court revisit Jacobson, unless the case involves a different legal principle or theory.
The Indiana University Lawsuit
Recently, a number of students studying at Indiana University filed a lawsuit trying to stop the COVID vaccine mandate. A preliminary injunction motion has also been filed but has not yet been heard. Indiana has dealt with the vaccine passport issue and the legislature has apparently ruled that vaccine passports are not legal. Originally, the university’s mandate required proof of vaccination via this passport. However, the University changed that and now requires some kind of online proof, on the hopes that this change would not run afoul of the vaccine passport prohibition. The plaintiffs are arguing that the University’s policy is still illegal under Indiana’s law. Of course, they make the obligatory federal constitutional arguments as well. It will certainly be interesting to see how the trial court rules on the preliminary injunction motion, but even if the judge rules for the students, if the ruling is narrowly based on the Indiana statute, that will not be of help to other litigation like what will be coming in California. Now let us turn to California.
The UC COVID vaccine mandate status
July 15th is going to be an important day from what I have heard and read about the UC COVID mandate. July 15th is the day that at least some employees will have to comply with the COVID mandate, which means either getting the vaccination or applying for a religious or other allowable exemption. I also hear that July 15th is the date that the final policy for the COVID mandate for students will be issued. If so, I would hope and expect that it would follow the employee mandate, especially since that was one of our biggest complaints when we filed against the UC flu mandate, namely that employees were given a religious accommodation, but students were not. I hope the UC learned its lesson.
Many of you have asked whether there will be COVID mandate lawsuits against the UC and other universities in California. There might well be and I am working on one right now but it is going to depend on community support. In the next few days, I will start a gogetfunding campaign and see what kind of financial interest I get for filing one or more actions.
Here are a few things about what I expect the UC mandate to include. The mandate applies to everyone including people who have already had the disease. So far as I can tell, there are not any studies yet which show any benefit of any COVID vaccine for people who had the disease. The infectious disease Mafia is basically making an argument for the vaccine for these folks by analogy, and something about that getting the disease does not actually give you as good immunity as the vaccines, which seems crazy to me and most immunologist who are not card-carrying members of the aforementioned Mafia. They argue by authority and analogy that natural immunity needs a booster or something like that. They do everything but cite a single study that shows that the vaccines confer any benefit to people who have had the disease. Only in the infectious disease mafia world (and regrettably in the judiciary) is science based on analogy acceptable.
There is the problem of the narrowness of the ACIP contraindications, and the fact that since the vaccines are still emergency use authorized only, it is unclear how thorough the data is to support the relatively narrow ACIP general guidelines.
Another thing that really bothers me (and all of you) is the 5000+ deaths reported by VAERS as associated with the vaccines. As most of you know, that is more than all the reported deaths from all vaccines since the inception of VAERS. Apart from a few cases of that heart condition thing, I am not aware that either the FDA or the CDC has investigated let alone reported on whether or not that 5000+ deaths had a causal relationship with the vaccines.
I am aware that Norway has looked at the first 100 vaccine-associated deaths and determined that 10 were causally connected to the vaccine, another 26 were possibly connected, and 59 were “unlikely connected to the vaccine. I am not aware of any federal government agency reporting the same kind of analysis of the 5,000 plus US deaths associated with COVID vaccines, which is shocking but not surprising, because the authorities probably don’t want to know the answer. It is possible that some of these problems might worry a judge and not just blindly follow the ID mafia’s religious-like incantations of safety and benefit.
So like I said, I’ll start a go-get funding campaign on the case, talk to some possible big donors and the folks I worked with on some of the other cases and see where we are and what we can do. If it all works out, we should be filing mid to late July. I am still thinking about the employee mandate July 15th deadline for compliance and how that can be, but I am not ready to talk about that just yet.
Rick Jaffe, Esq.