Update On the UC COVID Mandate Challenge filed by Frontier Doctors

Update On the UC COVID Mandate Challenge filed by Frontier Doctors

As expected, the Ninth Circuit Court of Appeals denied emergency relief seeking to reverse the district court’s denial of the preliminary injunction to stop the UC’s COVID vaccine mandate for members of the UC community who already had the disease. The thinking behind the lawsuit was that having a narrow group of plaintiffs who already had the disease, given the lack of definitive evidence that vaccinating these folks is needed or creates a significant proven benefit, might at least get a judge to seriously consider the legality of the vaccine mandate for this small group.

Well, so far it hasn’t. But as I pointed out in previous posts, the play was always to try to get this before the Supremes as quickly as possible via this tactic of quick appeals seeking emergency relief. Per previous, that how the Cuomo and the California cases all of which involved restrictions to church services got decided by the Supremes so fast.

My friend and colleague Greg Glaser has very recently filed an emergency application to the Supremes. The way it works is that papers are filed with the Supreme Court justice who covers the circuit. You all recall that recently, Justice Barrett rejected the emergency application filed by Indiana University students challenging IU’s general COVID mandate, without even referring the case to the entire court. I remind you all that she is a Republican whose elevation to the Supremes caused the switch in the results from the earlier California Supreme Court decisions upholding the restrictions on religious services to the Cuomo decision which held similar restrictions to violate the religious provision of the First Amendment.

The justice overseeing the Ninth Circuit is Elana Kagan, a democrat, hard-core liberal, and part of the then majority which previously upheld the California restrictions to religious services (which is now the minority on the issue). In my view (and the view of many others) Liberals give much greater latitude/deference and trust to the government than Republicans or libertarians. So, Greg is going to have quite an uphill battle to convince Justice Kagan to intervene or send the case up to the full court to seek the votes necessary for the court to hear the case on an emergency basis. We should know the outcome of Greg’s application by early next week.

Finally, lately, Greg Glaser is everywhere in challenges to mandated government action. I want to dispel the almost Shakesperean rumor that Greg Glaser is not a real person, and that this name is being used by a secret cabal of a couple of dozen attorneys pumping out lawsuits all using the name “Greg Glaser.”

I have met Greg Glaser and I can confirm that he is a real person. That much I can vouch for. That there are a dozen lawyers using his names on papers, I can’t, because I don’t see how one person (who is actually a full-time practicing real estate attorney) can put out all the paper that gets filed under his name. The only thing I can assure readers is that I’m not using his name on papers I file. But I do agree with the prevailing rumor that he’s got a team of lawyers filing papers using his name, and that number may in fact be bigger than what is rumored, based on the volume of paper being filed.

Here are his papers to the Supremes in this case which he just filed a couple of days ago. You will like them.


Rick Jaffe, Esq.

12 thoughts on “Update On the UC COVID Mandate Challenge filed by Frontier Doctors

    1. new answer: in general mandates are legal. California health law does seem to say that any new vaccines have to have a PBE. That is untested, in court so far, and that’s different than the EUA issue. I had thought that the legislature would have amended to law to eliminate that requirement, but it hasn’t so far. But one thing I’ve learned is that during a pandemic, the authorities do what they have to do regardless and trust the courts to back them up. Let’s see how school districts doing a mandate deal with this issue. There might be an action.

      But yes, theoretically there has to be an opt out. I think the argument by the school will be that the statute is not being amended to add the COVID vaccine the statutory immunization schedule, but rather because of the pandemic and hence there does not have to be a PBE. I had to bet, I’d bet that’s the way the courts will interpret that statute because of the pandemic. Most of you don’t think the vaccine is working, but that’s a minority view that is not shared by the government, public health officials or the courts, at least so far.

    2. I thought one of the recent California vaccine laws (within the past 6 years) said that the legislature would have to approve any new vaccine requirements for K-12.

      1. it did but it is unclear whether the courts will consider the COVID mandated vaccine an addition to the school vaccination schedule, and I suspect that the court’s won’t because this is a public health emergency not a general vaccine mandate, but we’ll see.

      2. Yes, that’s also how I understand it. I’m shocked that they’re being so brazen & asking Rick his opinion.

      3. Fortunately or unfortunately both my kids have IEP‘s. I’m hoping we can get through this without this affecting them. Obviously, the injection will happen over my dead body. If it gets to that point will be absolutely leaving the state no question. My husband is a helicopter fire pilot for LA County. LA Co mandating for 10/1 but says religious or medical exemptions allowed. I suspect religious will go out the window one it’s FDA approved & and it’s already been established that CMA will go after any Doctor who writes medical exemption for any vaccine here in California…so not looking good on that front. LA Co union members are pushing the union to back them/fight for vaccine choice as other Ca Fire fighting unions have…Anaheim, Sacramento and some others. We are all waiting and hoping the step up!!

  1. Do you know of help for college students in other states? I’m in touch with someone who is worried that she will be disenrolled. This is in Oregon, which requires that religious/philosophical and medical exemptions be made available, but you never know what rights are going to be flouted under the declared emergency.

    1. Not sure what kind of help the student is looking for. As you know from reading my posts, mandates are constitutional, especially now that one of the vaccines is fully approved/biologically licensed.
      Like I said in many many of my posts, get the shot, get a religious exemption or get a new job or find someplace else to go to school. It’s just that clear and simple, and it keeps getting clearer and simpler and more insistent as the Delta wave is causing dramatically increase levels of infection.
      The courts aren’t interested in hearing From outlier medical doctors who don’t work in infectious disease, and they’re not gonna care to wits about random articles that go against the excepted view that the vaccines are highly effective in preventing hospitalizations and deaths.

      I wish it were different, so I could tell people in good conscience that they should pay me to file lawsuits about this issue, but I can’t.

      1. I don’t think the vax mandate issue has been fully adjudicated yet; it seems to me that the Supreme Court is going to have to revisit Jacobson at some point, as the circumstances of this pandemic are quite different, as is the degree of resistance/hesitancy (roughly a quarter of the population). With growing protests, more people losing jobs and becoming “disenrolled” (Orwellian euphemism of the day)
        from school, and indecision among employers and government authorities about how far to go, some legal clarification on limits is sorely needed. The most glaring unresolved issue is natural immunity–the argument in favor of applying a one-size-fits-all vaccination policy to those who have antibodies to Covid is extremely weak from a scientific standpoint (it’s essentially a political decision based on utilitarian grounds) and is contravened not just by “outlier medical doctors” but a substantial number of infectious disease experts from around the world. Another issue is defining the point at which a vax mandate (or mask mandate, or any health-related mandate for that matter) infringes on personal freedoms to the point that it DOES become unconstitutional. This is not a local, short-term outbreak with an clear end point in view. Her immunity many never be achieved, the disease may become as endemic as the flu. Thus far, eradication efforts have been a dystopian failure (anybody want to live in Australia right now?). When does a mandate become coercive? Does a loss of livelihood, as opposed to an temporary inconvenience, qualify? More importantly, can a highly restrictive and discriminatory mandate be indefinite in time and geographical extent? Surely not.

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