Unless you’re following this full time and have a spreadsheet, there is so many new mandate orders and resulting litigation, it is hard to keep track of everything that is happening. Up until the new variant, I think we could see some patterns in the decisions.
Someone with more technical skills than me might be able to make a matrix of it all, but all I can do is categorize it.

I put all these lawsuits into three basic categories: 1. Straight-up privacy/bodily integrity challenges to state (and federal) vaccine mandates. 2. Challenges based on the failure to provide (or the denial of) a religious exemption under either the Consitution or federal employment law. And third, lawsuits against the Federal government’s vaccine mandate for employees, which so far are based on OSHA, CMS law and regulations, and federal contractors regulations/rules.

Federal Vaccine Mandates

As I said in my previous post, I think federal mandates outside of travel into the United States and Government employees are an overreach and will never go into effect. Mandating vaccines has long been viewed as within the exclusive jurisdiction of the state and local governments. Recently, the Sixth Circuit (which is hearing all of the challenges to the federal OSHA mandates) denied the government’s attempt to shorten the briefing schedule. And another federal court has just enjoined the mandate for federal contractors for some states. And at least ne federal court has stayed the CMS (Medicare) based mandate.

I am calling this a trend. Federal judges are very sensitive about respecting the boundaries or limitations of federal power, especially in areas like this which have a long history of state and local government exclusive authority. You might think that the new variant would buttress the argument of the feds, but I don’t think so. If anything, in my view, it weakens it. The latest variant shows that this might keep happening over and over again and would result in an indefinite expansion of federal power. I just don’t see the federal judiciary buying it.

Today, December 7th, a Georgia judge enjoined the federal contractors’ mandate for the entire country. So, the federal contractors’ mandate is completely DOA for the time being.

Religious Exemptions and Accommodations

There was some initial hope via preliminary injunctions and stays that religious exemptions would be a strong basis for challenging vaccine exemptions based on a few cases around the country. However, so far the federal appellate courts have not bought the argument. So far, the courts have held that there is no First Amendment free exercise right to a religious exemption. Twice already, the Supremes have refused to accept these cases onto its shadow docket. Recently, a California appellate court temporarily blocked the San Diego school district’s COVID mandate because there was an exemption for pregnant women but not a religious exemption, which the court found problematic. Once the school district eliminated the pregnancy exception, the court dissolved the stay.

Eventually, the religious exemption issue might get to the Supremes, but they don’t seem to be in a rush to decide the issue. For now, the Constitutional right to a religious exemption does not appear to be a thing. What I think is a thing is if some people get the religious exemption right while others in the same institution do not. But technically, that would be an equal protection violation. (That was what we argued in the UC flu mandate case, and it was probably strong enough to get the UC to offer the religious accommodation option to students, which had been denied to them in the University’s initial flu mandate.)

Straight State or Local Mandates

So far, general vaccine mandates imposed by state and local governments and private companies have been upheld against asserted privacy/bodily integrity/informed consent attacks. The soon-to-be-former Mayor of New York just imposed a city-wide mandate for all private-sector employees. I think it is quite likely that there will be at least a stay of those mandates, perhaps obtained by one of the two big groups involved in the NY State health care workers mandate suits (which I have discussed in many previous posts.) We’ll see if there is any change in the law that heretofore has upheld vaccine mandates when duly authorized by state or local law. These suits may raise the religious exemption issue, but as per the above…

The impact of the new variant?

Finally, the new variant could have an impact on the law and arguments being made to the courts. Very preliminary reports are that people with natural immunity are being infected at a much higher rate than might be expected if natural immunity was as protective as was thought to be under earlier variants. That would of course undercut the argument against vaccine mandates for the previously infected. But we need to wait to see how the data from around the world shakes out on this.

I don’t see much data yet about whether vaccines prevent the new variant. I would be interested to see what the South Africans say about that.

The other side of it is that preliminarily, the new variant appears to be less deadly and cause less severe hospitalization, but the authorities are cautioning that it is too early to tell. Also, look to the medical establishment and the media to claim that the new variant is less deadly because of all the COVID shots people have received. I’m not sure how that could be proven since I think it is a well-known survival characteristic of viruses. But credit for it, they will sure take.

If the new variant does turn out to be less deadly then maybe we are closing on the endemic stage of the pandemic where it’s something like the flu. If and when that happens, then the whole mandate issue can be revisited legally since we have not historically had adult mandates for other endemic viruses like the flu. Obviously, the less severe this and other down the road variants are or become, the better the chances the courts might start giving more consideration to the personal autonomy/informed consent type arguments. I don’t think we’re quite there yet, but we shall see. But that’s also when we will hear that the vaccine is making the variant less virulent. I can’t wait to see what the vaccine critics have to say about that.

Breaking News: Good Job and Good Luck Patty Finn!

Noted vaccine rights attorney Patty Finn has just obtained a stay against the City of New York et al for its vaccine mandate for the police force. The preliminary injunction hearing is set for December 14th. Good job and Good luck Patti! Here is the Order to Show Cause issuing the stay. 160914_2021_Anthony_Marciano_v_BILL_de_BLASIO_et_al_DECISION___ORDER_ON_15 (2)-1(1)

Rick Jaffe, Esq.