There might be some misinformation circulating about the status of the injunction actions against the UC COVID vaccine mandates. I am not involved in either of the two cases against the UC of which I am aware, but for what it’s worth, here is what I know and what I think.
1. The Frontline Doctors lawsuit: There is no injunction against the UC in this case. Per previous posts, the motion for preliminary injunction was denied. That denial was affirmed by the 9th Circuit court of appeals. Greg Glaser has filed the paperwork with the Supremes, (liberal justice Kagan is the justice overseeing filings from the 9th Circuit). My view is that if conservative justice Amy Comey Barrett wouldn’t accept Indiana University’s emergency filings challenging IU’s Covid vaccine mandate, for sure, (a fortiori for the legally inclined) Justice Kagan will not. As most of you know, typically, liberal and democratic judges are much more deferential to government public health regulation than republicans and conservatives or libertarian-leaning judges. That explains why the Supreme Court affirmed the California restrictions on religious gatherings starting in the summer of 2020 in the South Pentecostal cases, but reversed itself (in effect) after Justice Barrett replaced the late Justice Ginsburg in the Cuomo case.
2. A second injunction action against the UC Covid mandate has recently been filed in the same federal district (but a different division), by the highly regarded vaccine rights attorney Aaron Siri and his firm. It is essentially the same lawsuit as the Frontline Doctor’s lawsuit, meaning that the plaintiff (only one in this case) argues that since he already had Covid, there is no evidence that he needs the vaccine and hence the mandate is illegal/unconstitutional as applied to him.
But this argument was already rejected by the 9th Circuit in the Frontline Doctor’s case, and because of that, I think the district court in this case, is bound by direct precedent to deny the preliminary injunction for failure to show a likelihood on the merits. (There is a new equal protection claim, but I think that’s a clear loser. Having had Covid is not a protected class. And, every court has held that vaccine preferences is not a fundamental right (and don’t shoot the messenger; it is what the courts have either specifically or tacitly held).
The preliminary injunction motion is scheduled to be heard at the end of September. As is everything coming from Aaron and his office, the papers are extremely professional, clear, and very cogent. You will certainly enjoy reading them, so here they are:
Like I have said in prior posts regarding the Frontline Doctor and the Indiana University cases, Jacobson and Zucht and the subsequent federal and state cases require district and appellate courts to deny legal attempts to enjoin vaccine mandates, despite the attempts by attorneys to distinguish these precedents.
I think the primary purpose of these cases is to get to the Supremes as quickly as possible in what is referred to as shadow supreme court oversight, meaning obtaining Supreme Court review in an emergency setting before the case is fully litigated. That happened in the religious services cases in California and New York, but did not happen in the Indiana U vaccine mandate case, and I don’t think that will happen in either of these two cases against the UC. But we shall see.
I have checked the docket in this case and there is no TRO request listed as having been granted or even having been made. Rather, as stated, there is a preliminary injunction hearing scheduled for late September.
So, whatever unsubstantiated rumors are circulating about there having been a TRO issued against the UC Covid mandate is just that, and so far as I can tell from the docket and the paperwork, it is not true. Further, due to the limited nature of the relief requested for the sole plaintiff in the case, even if a preliminary injunction were to be granted, it would only apply at most to members of the UC community who already had Covid. But for the above reasons, my view is that is not going to happen because of Jacobson and more specifically the recent 9th Circuit precedent on the same basic facts and same legal issue in the Front Line Doctor’s case. I’m sorry to be a Debbie Downer again (and again and again).
People have to make decisions, like now. Some of those people might appreciate the facts (that there is no TRO against the UC mandate) and a realistic assessment (in my view anyway) of the arguments and likely result of the pending cases.
Rick Jaffe, Esq.