Legally/lawsuit wise, and to state the obvious, there is much going in California and around the country on mandatory vaccination and exemptions/accommodations for students and employees.

The Indiana University students who are seeking to overturn IU’s COVID mandated have filed the paperwork with the Supreme Court seeking an emergency review of the Seventh Circuit’s denial of a temporary injunction against the mandate, which the district court refused to grant (the preliminary injunction that is).

This is the same or similar procedure that had been successfully used by plaintiffs challenging the church public gathering limitations/closure orders in the Cuomo case.

(Here is my post about that case.https://wp.me/p7pwQD-OS).

This legal tactic was also used in two Supreme Court emergency appeal cases that had upheld similar restrictions when Justice Ginsburg was on the bench.

If the Supremes do not take up the case on this emergency review, well, that would be a pretty good indication that there are not four justices who think that the fundamental religious issues in play in Cuomo are at play in a vaccine mandate case. But even if the Supremes don’t take up the IU case, Cali. vaccine attorney Greg Glaser will surely file paperwork for Supreme Court review on his case against the COVID mandated on behalf of UC students and employees who have already had COVID. So there will be at least two shots at this.

Per my previous posts, I don’t think the Supremes are going to want to address the issue during what looks to be the new pandemic wave. But even if they do decide to address the issue on the minimal record that exists, what comes to my mind is the adage “be careful what you wish for.”

Anti-vaxxers are becoming the relentless target of the media (except for Fox). I think the record presented in these two legal challenges is quite weak. (One outlier academic physician whose job is unrelated to infectious disease and some other physicians who I think would have a hard time being qualified as experts on the relevant issues at an actual trial on these issues.)

But even aside from the weakness of plaintiffs’ experts, the Jacobson court addressed this precise issue of minority expert opinions who criticized the need for/safety of smallpox vaccine versus the consensus view and extensively quoted from a then-recent New York case which apparently summarized the Supreme Court’s thinking on the issue. This might help you understand why the courts DO NOT take seriously challenges by those who have a minority view, even if such challenges are supported by experts. You won’t like it, but you will understand why none of these cases go anywhere in court.

“‘It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession. It has been general in our State and in most civilized nations for generations. It is
practiced with proper care on healthy subjects. . . ‘ . 4. It is highly desirable, in the interests of the health and lives of our countrymen, that vaccination should be rendered compulsory.’ ” Edwards’ Vaccination (1882).
The English Royal Commission, appointed with Lord Herschell, the Lord Chancellor of England, at its head, to inquire, among other things, as to the effect of vaccination in reducing the prevalence of, and mortality from, smallpox, reported, after several years of investigation: “We think that it diminishes the liability to be attacked by the disease; that it modifies the character of the disease and renders it less fatal, of a milder and less severe type; that the protection it affords against attacks of the disease is greatest during the years immediately succeeding the operation of vaccination.”
generally accepted in theory and generally applied in practice, both by the voluntary action of the people and in obedience to the command of law. Nearly every State of the Union has statutes to encourage, or directly or indirectly to require, vaccination, and this is true of most nations of Europe. . . .

“A common belief, like common knowledge, does not require evidence to establish its existence, but maybe acted upon without proof by the legislature and the courts. . . .
” The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action; for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not.. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a republican form of government. While we do not decide and cannot decide that vaccination is a preventive of smallpox, we take judicial notice of the fact that this is the common belief of the people of the State, and with this fact as a foundation, we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power.”

The bottom line to the Jacobson court was that it was not the job of the courts to second guess the decisions of the legislature (the state or its agencies) which decisions are based on consensus science, and consensus science now is that regardless of the technical EUA status of the COVID vaccines, they are safe and effective in preventing death and hospitalizations, and the fact that some experts might disagree doesn’t matter. I think it is that simple. or was to the Jacobson court.

I think that any objective (i.e., a nonpartisan non-vaccine rights) attorney understands that Jacobson is the law of the land right now anyway, at least on the vaccine mandate issue.

And I will go a step further.

If the Supremes take up one of these vaccine mandate cases, it is my opinion that the core tenets of Jacobson will be upheld, though they will put it in contemporary constitution language by holding that there is a rational relationship between the mandate and what the state schools are trying to achieve, public health-wise. To put it another way, I think the law of the land is and will continue to be as the Indiana district court articulated it in its very thorough opinion. (Of course, that is just my opinion which few if any reading this will agree with, and for sure is different from the opinions of basically all-partisan vaccine rights attorneys, but I view the views of such attorneys to be more aspirational or wishful thinking, but again, that is just my opinion).

However, there are other competing considerations in fundamental religious rights cases like the Cuomo case, which caused the new conservative majority to in effect overturn the earlier Supreme Court cases which affirmed similar restrictions on religious gatherings. However, my opinion is that the Supreme Court will not extend Cuomo to cover a pure vaccine-mandated case, and that, even with a conservative majority, Jacobson will be eventually be upheld by the Supremes when it finally gets to them. It would be very helpful for the country and especially the people against vaccine mandates to get a definitive ruling from the Supremes, one way or the other, so as to at least stop the misinformed opinions out there about what rights people have or do not have.

But as stated in earlier posts, I am guessing that will not happen with these two school mandate cases. We should hear about whether the Supremes take the IU case later this week. It will be breaking news in the media either way. It will probably take a few more weeks on the UC case to find its way to a decision on emergency relief by the Supremes. If neither case is taken up by them, then Jacobson is still the law of the land and will be followed by all federal and state courts, and challenges to the general COVID general mandates will continue to be rejected by the courts. That’s the way I see it unfolding anyway, until there is a decision by the Supremes.

So, what does that mean practically for all of you philosophically/religiously opposed to the COVID vaccine or to vaccine mandates in general?

That’s easy, and I’ve said it many times before. Get vaccinated, get an exemption/accommodation, and comply with the onerous testing, reporting, and masking requirements (and the only practical accommodation is the religious one, since a medical exemption requires ACIP compliance), or prepare to be fired/find a school that does not mandate the vaccine. Those are your only choices. There is nothing I or any lawyer can do about that.

(And, or a variety of reasons, I don’t offer medical exemption writing or review legal services, so if you try to contact me about your religious exemption or your “rights” to challenge your employer’s (state or private) vaccine mandate, sorry, but I won’t be responding. Nothing personal. I write these posts to offer some legal perspective for whatever it’s worth (and it might not be worth much to the many who are passionately opposed to vaccine mandates) but that is the extent of my involvement with this issue other than lawsuits I may pursue on behalf of and funded by organizations, and doctors I defend. And, I am not filing any challenges to the COVID mandate for adults.)

The Florida Situation

Things are getting bad in Florida and a few other Southern states, at least if you believe the news (and I do on this). Cases and hospitalizations are increasing, somewhat dramatically. I think Florida is an excellent test case. I am told that in Florida, it’s like the pandemic doesn’t exist. Up until Delta, that has worked out for the state. We will see what happens in the next 60 days. If kids start dying there (or in other places), things will get very bad for the unvaccinated.

On the legal front, last night a federal judge granted a cruise ship line’s request for a preliminary injunction barring enforcement of Florida’s vaccine passport prohibition. The cruise ships want to follow the CDC guidelines requiring vaccination and/or reporting of vaccination status, but the Florida law bars them from doing so. But now they can, pending the trial (or reversal on appeal). The more Delta progresses, the more likely the decision will be affirmed obviously.

This case was decided on first amendment grounds, not on Jacobson, which only received a passing reference. For those interested in diving into the weeds of the vaccine passport legal issue, here is the judge’s decision. It’s very good.

43_051023674708_OrderGrantingPreliminaryInjunction(1)

strong>What about SB 277?

This week could be big for me and my physician clients on the SB 277 issue and the families of the children who received SB 277 based medical exemptions. The big case is Ken Stoller’s writ mandate presently pending a decision by Judge Arguelles. He said he needed a couple/few weeks and it’s not been over two weeks, so I would think we should get a decision this week. Between his written questions to the attorney and the hearing, he seemed to understand that the law allowed physicians to write ME’s that did not comply with ACIP guidelines which the Board, its expert, and the ALJ denied (the latter at least implicitly).

If the judge stays with that view, then the Board’s order should be overturned, and either there would be a rehearing under the SB 277 standard, or the case against Ken gets tossed because the Board has the burden of proof and it chose to try the case under the wrong standard of care. (And you don’t have to guess about which result I argued hard for at the hearing). If the Board’s order is overturned, then families may have to battle it out with their children’s schools. But it’s probably best to take one step at a time. We all should be that lucky to have to deal with that problem!

I have the same SB 277 issue in another case going to hearing later this week in the context of a motion to compel compliance with an investigative subpoena for the medical records of a physician who wrote two non-ACIP based ME’s, and one more of these motions being heard early September.

In the movie script I’d write about this, we’d get Judge Arguelles’ decision today or tomorrow and the other two judges would concur with him (and in my script, we would prevail). But it may not work out that way, and the first Sacramento judge to weigh in on the SB 277 issue might be a Law and Motion judge hearing the motion to compel. I am hoping not, because there is a much deeper record in the case before Judge Arguelles. But, it’s out of my hands.

So from my perspective, this is the big stuff that is happening in the vaccine mandate world we currently live in.

Rick Jaffe, Esq.