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The Texas Abortion Law Mess

The Texas Abortion Law Mess

The right-wing wingnuts running Texas have finally figured out how to practically nullify Roe v. Wade. Many fear that other states will follow the Texas legal template of insulating the Texas government’s actions by deputizing the nationwide anti-abortion activists to enforce the new restrictions.

It’s a good tactic, what I would call the swarm. If a majority of the members of the Supreme Court were institutionalists, rather than agenda-driven political hacks in black robes, the Supremes would have stopped it last week. They will have another opportunity in a few weeks, but I think the vote will be the same (or so I fear).

The New DOJ Lawsuit

Yesterday, the Feds filed a lawsuit challenging the law in the Western District of Texas. Most of the district judges in that district are smart and fair. Based on past cases, the district court might well enjoin the abortion law, (despite some possible standing issues). I can’t say the same for the Fifth Circuit, not on the abortion issue anyway.

I going with the preliminary injunction will be overturned by the Fifth Circuit eventually, and in the short term, the Fifth will probably stay the injunction. The Supremes will probably do what it did last week (unless despite her religious beliefs Amy Barrett reveals herself to be a closet institutionalist).

This case is going to up the ante on the Mississippi abortion case which will be decided the next term (starting in early October). The challenges to the Texas law become moot if the Supremes overturn Roe. A few of the five conservative justices have already gone on record saying that the decision was wrongly decided. At their confirmation hearings, the three recent Trump appointees made the right noises that they haven’t decided the issue, never ever thought about it, (or that they never heard of the Roe decision but swore that they liked fish eggs).

The Fed’s filing this lawsuit is surely welcome news to the pro-choice community (which is a large majority of the people in the US). And there might well be some good news in the short term from the district judge in the form of an initial preliminary injunction.

However, I don’t think the good news will stick, because at this point in time, both the Fifth Circuit and 5 Supreme Court members either are morally opposed to abortion or because of their original intent/textual view of the Constitution, they believe the founders did not actually create (or intended to create) Constitutional protection to women who want abortions.

(Under this obtuse view of the Constitution, the document is frozen in time. Thus, the rights given to Americans for however long the republic lasts, were only those rights explicitly thought about by a bunch of mostly old white guys, many of whom were farmers and slave owners. And yes, it’s really that moronic! And let’s remember, these were the folks that came up with the moral abomination but practical necessity of counting slaves as 3/5th’s of a person for census congressional representations or whatever the hell it was for. And did I mention that George Washington was bled to death by the best available standard of care medicine, (but perhaps I digress because of some of my other current cases).

So, I think we’re in for a roller coaster ride. The District Court will grant an injunction in the federal action, but I think that will be stayed by the Fifth Circuit, maybe immediately or after some limited briefing schedule. Then the abortion providers will be back facing the private bounty hunters. (except for recent state court injunction against the main anti-abortion group, and possibly others, for as long as that injunction is in place). Like I said, It’s a mess.

What about Congressional action?
Theoretically possible, but unlikely to the point that it’s not happening. There won’t be 10 or even 5 senators who will vote for the bill. It’s DOA at the Senate, except it will linger because the Dems nominally control the Senate. If you call control not being able to pass any legislation not related or stuffed into an appropriations bill, due to the filibuster rules.

Private Texas Attorneys to the rescue?

I have heard about efforts to solicit Texas lawyers to defend the anticipated lawsuits against abortion providers filed by the nationwide cadre of private bounty hunters. That’s certainly a good idea, but I don’t think it will make the abortion providers feel much safer. I think the pro-choicers need to get more aggressive, legally and otherwise.

Legally and lawsuit wise, you’ve got a lot of lemons, so make lemonade.

You’ve going to have a bunch of random anti-abortionists around the country complaining and seeking bounty against abortion providers. Well, another way to describe these bounty hunters is “co-conspirators.” A conspiracy is just a plan involving two to more people to achieve an illegal objective. Proof of a conspiracy requires proving a plan and an overt act. The overt act does not have to be an illegal act. It just has to be an act in furtherance of the objectives of the conspiracy.

Right now, there is a constitutionally protected right to abortion, and denial of a federal right is illegal and actionable, (and that is a basis of the federal lawsuit). So if and when these bounty hunters show up, seems to me they could be sued. The beauty part of conspiracy is that the plan doesn’t have to work or be formally implemented. It’s just proof of a plan and an overt act (and that the defendant agreed to participate, which can be by direct or circumstantial evidence).

What about the fact that Texas law allows and in fact authorizes what they are doing? Doesn’t matter. If people violate federal law in executing a state law, they are still liable.

Back in the 90’s I filed a lawsuit against New Jersey state insurance fraud investigations who I claimed were extorting money out of chiropractors and physicians whom the fraud department suspected of insurance fraud. The state statute specifically allowed the fraud department to offer civil settlements and so they claimed in their defense that was what they were doing. Although the judges on the case were skeptical of my case initially, they eventually got it, let the case proceed and right before trial the state gave up, settled, and while not admitting they did anything wrong, they agreed to stop doing it. The fraud department was then reconstituted. (The case is described in Chapter 6 of Galileo’s Lawyer.

The legal point/precedent is that it is possible to illegally execute or act under state law if what you are doing is a violation of federal law. I even had a RICO claim against these state fraud investigators, and I’m sure some clever pro-choice lawyers can figure out how to get these bounty hunters on RICO as well.

Well, what about the fact that they’re from all over the country?

Even better I say. Lemonade from lemons, or taking the fight to their home jurisdiction. Federal or state court? Both, but primarily state, if for no other reason, to try to keep these cases from the US Supreme Court based on the above. I hope I am wrong about the Supremes. In a few months, we will know the answer.

My bottom line is that I think the pro-choicers have to up their game to meet these new challenges, including the fact that the Supremes (or five of them) are likely to abandon their institutional obligations to the court and country.

As I look over the entire battlefield, what I see is that the Country is on the pro-choice side and I think pro-choice has greater, if largely as yet untapped resources. Those untapped resources were not necessary because until now, Roe, while knocked up a bit, has survived.

But now, it’s obviously different. So I would hope and guess that with proper nationwide organization, there will be an order of magnitude increase in the support (and no doubt, so the pro-choice organizations hope) to take this fight to the next level.

Rick Jaffe, Esq.

Status of the UC COVID Vaccine Mandate Cases

Status of the UC COVID Vaccine Mandate Cases

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:

Siri UC Injunction

Siri UC Case Complaint

Siri UC McCollough Dec.(1)

Siri UC Faculty Declaration

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.

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.

It’s Time to Start Thinking about What’s Next in the COVID Mandate Challenges

It’s Time to Start Thinking about What’s Next in the COVID Mandate Challenges

The first round in the legal challenges to the state universities’ mandate for the COVID vaccine (including a religious accommodation) are all but over, or at least they will be if and when the Indiana University students emergency motion to the Supreme Court does not get a hearing. There should be an answer in a few days. If the Supremes accept the case and order briefing, well then this round isn’t over. I have noted my scepticism, but we’ll see soon enough.

Assuming the Supremes don’t take up the issue now, the question is what (if anything) is next?

If I were a legal general thinking about the next issues that need to be addressed, the first thing I’d think about is the changing landscape, and by that I mean focusing on what the public health situation looks like right now, and that would be according to the public health officials. I focus on that, rather than what any of you reading this might think is the situation or any of the outlier experts think because judges reviewing legal challenges only take seriously mainstream opinions by experts recognized by the public health establishment. That’s not something any of you (including the prominent vaccine lawyers and advocates) want to hear, but I think that it a fair analysis of what the judges have said and done recently. And of course, it is completely consistent with and specifically stated by the Jacobson opinion (per my recent post which I quoted the “common view” language from the opinion).

So what do the public health officials know right now? (And it’s obviously a moving target since it seems that things are changing very quickly)

Obviously, the Delta virus has a much higher degree of transmissibility than previous versions of the virus to the point where it is now accepted that the vaccines do not prevent the transmission of the disease. For sure, the vaccines were not granted EUA approval based on preventing catching or transmitting the virus, but rather preventing deaths (and maybe reducing hospitalizations). But now that the initial evidence is in that it does not prevent transmission of the Delta variant. I think this finding was in part based on the recent Cape Cod cluster. The results of this data I believe precipitated the CDC’s flip on the mask mandate for vaccinated people

If so, then it seems that could void or lessen the rationale and the fear people have that the unvaccinated are the primary spreaders of the disease. If the data in the next weeks and months stays the same on this point, that might have some implications of the reasonableness of continued university mandates, at least to the extent they are based on the fear that the unvaccinated are the spreaders of disease. I do note that some of the vaccines in school mandates are for non-contagious diseases (tetanus) or for limited contagious diseases. So there is precedent for mandatory vaccination apart from the risk created by the individual to others. Still, it is an interesting issue that might be worth pursuing.

There are two other implications or consequences which follow or may follow from the fact that the vaccine does not prevent the transmission of the Delta variant. First, and something we are just starting to see; things are starting to get canceled or pushed back. Events and in-office work start dates for example. Many of the companies that had set September back to office deadlines are pushing the deadlines back to January. We are also September public events starting to be canceled, like Stevie Nix canceling her September conferences. I think the next shoe to drop might or will be universities or public schools. One Georgia school has just sent everyone home due to an outbreak.

If things keep getting worse, I can see some universities going back to virtual classes again, or at least having that as an option. We could see reluctance from university staff and teachers about going back, even with the vaccination, because of break-out cases. I also think that despite the public health establishment’s reassurance that the vaccinated won’t go to the hospital and die, some have and some will continue to be hospitalized and die, in which case, we’ll be to where we were last year, and might remain there until the next break or until there are treatments which are widely acknowledged to work. That might seem overly pessimistic, but don’t bet against what people (and especially the establishment) will do when they are afraid.

If schools that have a COVID mandate do go back to zoom learning or give students and teachers the option, then of course that impacts the rationale for the mandate for students who do remote learning. My impression is that for now, mandates apply even to remote learning, which seems odd and beyond the obvious rationale of a university mandate. So, that is another area that needs to be looked at.

Finally, Los Angeles Country is considering requiring vaccination for public events like concerts and restaurants, and gyms. The cases from last year are all over the place. We know that the Supremes will apply strict scrutiny for a restriction that applies to churches. But LA County is actually thinking about barring the unvaccinated from retail establishments. Does that including grocery stores? I don’t know, but I think that would be a step to far. It’s hard to believe that the courts would uphold a regulation that disallowed citizens from buying groceries, but hey it’s California, so who knows. I am sure that many Angelenos are paying very close attention to those city council meetings. That would be a good place to make your voices heard (in a respectful and rational manner). I have to believe that a majority of council members haven’t completely lost their common sense. And if they have, there will be multiple lawsuits challenging that regulation and I think the courts will strike down a county ban on at least that part of the retail aspect of the reg. I should point out that while I think a country requirement for vaccination to shop (at least grocery shop) would be struck down, I think individual stores could legally impose such a requirement, just as they can impose a mask requirement. However, stores are in the business of making money, and eliminating 30% of potential customers is not the best way to make money. So I don’t see that happening in the current state of COVID affairs.

What about Mandatory Public School Vaccination?

Of course, there is no EUA for the under 12, and California does currently have a restriction on new vaccines in the vaccine schedule which requires a PBE (last time I checked). I think the bigger problem is going to be what happens if and when Delta hits the California schools. The authorities are going to have to weigh closure versus somehow trying to mandate vaccinations for school children who are not excluded from the EUA.

Also, looks like the Pfizer vaccine will have full approval/licensure by the end of this month, or early September. Of course, that obviates the “experimental” attack on the vaccine.

The backup position no doubt will be that approval was rushed, political and that the vaccine has not proven to be safe because there are no long-term studies. Plus, there are the standard lines of attack that vaccines approval have no control group, as well as the informed consent and right to bodily integrity arguments that have been raised in pretty much every prior attack on mandatory vaccination cases. And let’s not forgot the mother and father of all attacks on vaccines, namely, the conflict of interests and that the manufacturers are immune from civil liability. These last to me seem tone deaf in the middle of a pandemic, but that’s just my opinion. I think all of these arguments will be about as successful in court in COVID mandate litigation as they have been in the prior mandate litigations, meaning the courts will reject them in the COVID litigation context. If these arguments didn’t work in contagious disease-free times, then they certainly won’t work ( a fortiori, to the Latin or legally inclined) during a new wave in the pandemic. And no, I don’t think you will be able to convince the courts that there is no pandemic or that it’s not deadly, (to anyone of you who are still holding on to that view).

So, that’s how I see the new legal issues and potential challenges to be shaping up as we are about to enter the Delta variant mandate world.

Rick Jaffe, Esq.

Anyone want to listen to an interesting academic debate on the pros and cons of the COVID vaccine Mandate?

Anyone want to listen to an interesting academic debate on the pros and cons of the COVID vaccine Mandate?

FYI, in general, my posts either try to explain the law (lately, mostly about vaccine issues, but sometimes about stem cells) or relate information about my cases (lately, mostly involving my vaccine/medical exemption cases, but also about my stem cell cases that I can talk about). I try to keep my legal discussions narrow and focused on what the law is and how I think the courts will rule on specific issues.

I try to avoid the big philosophical and ethical issues, for many reasons, but mostly because I haven’t found them to be particularly persuasive with the courts, and I’m a pretty practical bottom-line guy. That doesn’t mean I don’t enjoy a good discussion of the big issues.

So I am happy to report that my friends and colleagues Greg Glaser and Ray Flores recently participated in a debate on the COVID mandate instituted by universities. The pro mandate side was represented by a couple of academic ethicists. There was also a very sharp physician who heads up a UC hospital ethics department.

There was much argument about what the data showed or didn’t show, what has to disclosed in terms of informed consent, of course, the issue of compelling a EUA “experimental” medical intervention, the justification (or lack thereof) for mandating a vaccine in the absence of evidence that it prevents transmission (and not there is evidence that it does not prevent transmission of the Delta variant), how children enter into the picture (and that discussion seemed a little dated as more children are being infected and being admitted to hospitals), and in general the ethics of mandating the vaccine for the so-called “greater good.”

In so many of my posts, I feel like a Debbie Downer, explaining why I think the courts will rule against your passionately held beliefs, and telling you why you don’t have the constitutional rights you think you have.

To make amends, here is the link to this one-hour debate. I promise that you will enjoy listening to it and will especially enjoy listening to your heroes Greg and Ray who expertly articulate exactly what you all think and believe. You will literally be cheering them on (out loud even if you are alone!) I see this UC physician, Aaron Kheriaty as the new bright star on the COVID mandate issue. He was absolutely terrific. (So good, that I hope he doesn’t lose his job).

I didn’t get the feeling that the pro mandate people had deep knowledge about the issues. I thought there were better arguments, counter facts and legal distinctions to be made, on the law, ethics, and data/medicine. In short, the pro side wasn’t exactly represented by the heavy hitters (the media talking heads or say Dorit Reiss or that UCLA law professor). I think having more knowledgeable folks on the pro side would have been more interesting. Or, maybe, Greg, Ray, and Aaron were just that good.

It is what it is, and as I said, you will really enjoy hearing your legal champions make their arguments.

Here it is:

Enjoy the W!

Hats off to Greg, Ray, and the new kid, Dr. Aaron.

Rick Jaffe, Esq.

This Could be a Telling Week in the Legal World of Vaccine Mandates and SB 277 Medical Exemption Cases

This Could be a Telling Week in the Legal World of Vaccine Mandates and SB 277 Medical Exemption Cases

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.

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.


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.

Riverside Federal Judge Denies Frontier Doctor’s Injunction Request against the UC COVID Mandate; Mandamus in the Court of Appeals Filed

Riverside Federal Judge Denies Frontier Doctor’s Injunction Request against the UC COVID Mandate; Mandamus in the Court of Appeals Filed

On Friday, July 30, Riverside Federal Judge Jesse Bernal denied an injunction motion filed to stop the enforcement of the UC’s COVID mandate against students and employees who have previously had the disease. This was a strategically narrow lawsuit that excluded members of the UC community who have not had COVID. But narrow or not, the judge denied the injunction request. No surprises in the decision (especially if you have been reading my recent posts(Jacobson, the low to non-existent rational relationship standard, and it’s not the job of the courts to weigh challenges to accepted science, it’s the state’s call, yada, yada. Much shorter than the Indiana University district court’s opinion, but same result and reasoning. This is now the third federal district court that has rejected a COVID mandate. (The first being Houston district judge Lynn Hughes in the case against the Methodist Hospital mandate).

My friend and colleague Greg Glaser is involved and he has (amazingly) just filed for a mandamus in the Ninth Circuit Court of Appeals. Hope he does better than the IU students who lost in the Seventh Circuit. But like in that case, I think Greg is trying to put this before the Supremes, so I don’t think he’s expecting much from the Ninth Circuit, even though there are many more conservatives on the court than in the old days.

Here are Greg’s papers. The District Court’s opinion starts at around page 50 of the pdf.

AFLDS v UC – 9th Circuit Writ Filed (1)

Good Luck to you Greg!

Rick Jaffe, Esq.

As Expected, The Seventh Circuit Court of Appeals Denied the Injunction Request of the Indiana University Students against the COVID Vaccine Mandate

As Expected, The Seventh Circuit Court of Appeals Denied the Injunction Request of the Indiana University Students against the COVID Vaccine Mandate

As predicted, the federal appellate court denied the request for an injunction pending appeal of the IU students lawsuit against the COVID mandate. Hey, it’s an appellate court and it is bound by Jacobson.

The decision is only a few pages, but it did mention an issue raised by a commenter about wanting to force a university to have remote learning. The court of appeal said no can do. The university gets to make that call, not the courts.

Here is the decision. Nothing really surprising in it.

Bopp 7th Appeal Denial(1)

I have to believe that the lawyers knew they were going to lose and didn’t so much care. Now they will file a petition with Justice Barrett to seek a temporary injunction pending appeal.

Per my previous post, I don’t think they’ll get it, and I don’t think the Supreme’s will take it up because it’s not the hot button issue for the conservative members of the court which is infringement on religious practices. But you never know.

It would really throw a monkey wrench into public health determinations by state and local governments if they did not have the ability to issue vaccine mandates during what most people believe is a new wave of the pandemic, and that is why I have said that I expect the Supremes to punt for now. We will see.

Rick Jaffe, Esq.

My Advice to UC Students (and their Parents) and UC Employees About the Mandate

My Advice to UC Students (and their Parents) and UC Employees About the Mandate

I am repeatedly asked by parents and UC students what they should do about the UC mandate and what about the legal challenges. Ditto by/from UC employees.

I am actually aware of only one filed legal challenge and that is the federal lawsuit recently filed in Riverside County federal court by the Frontier doctor group. That lawsuit does not cover all UC students, but only those who have had COVID, under the theory that if you’ve had the disease (and presumably you still have the antibodies) you don’t need the vaccine.

I keep hearing about a general lawsuit challenging the general mandate on behalf of UC students but I haven’t seen the papers, nor can I confirm that it has been filed.

Here is my advice:

I think you should assume that no legal challenge, filed or to be filed against the UC will stop the mandate from going into effect in August, and no lawsuit will stop the mandate for any part of the upcoming school year. I have some freedom to say this because I am not involved in any such case and I don’t want to be because I don’t think there’s a snowball’s chance in hell that a district or superior court is going to stop the UC mandate for a vaccine intended to stop the spread of the pandemic virus.

Like it or not (and I know you all hate it), Jacobson is the law of the land, and the law allows state and local governments to impose what they think (and the courts will agree) are reasonable rules including vaccine mandates (as opposed to actually forced vaccination which is a completely different issue).

All trial courts and appellate courts are required to follow Jacobson until the U.S. Supreme Court says otherwise. And yes, the Jacobson constitutional test (reasonably relationship) is outdated and now we have the three levels of scrutiny. However, I think the district judge in the Indiana University case got it right when he held that IU’s policy is governed by the lowest level of scrutiny (rational relationship, which is barely a test/requirement). I know the plaintiffs in these cases are arguing for strict scrutiny, but I don’t think that will fly (and it’s not much of a prediction on my part since the Indiana judge rejected it).

I know that the plaintiffs are also trying to wrap themselves in the mantel of the Supreme Court’s Cuomo case (which struck down religious restrictions during the pandemic). The judge in the IU case rejected it. I predict that the court of appeals will reject it also (and the denial of the preliminary injunction is up on appellate review). The plaintiffs will then seek emergency review with the Supreme Court. My crystal ball is a little foggy about whether they’ll get a review by the Supremes, but I’m vaguely seeing that the application will be turned down, which would not be a substantive rejection.

I’m going with that because I don’t think there will be four judges who want to deal with this kind of case in the middle of what I think all nine justices think is a very dangerous public health crisis (and I know most of you don’t agree with that assessment). Therefore, the best move for the Supremes is to punt and let the case come up through normal channels and time frames (like a couple of years) in large part so the state public health officials and governments can deal with the crises.

I think that’s a simple and easy call because let’s face it, they’re not lining people up and injecting them yet. If and when they start doing that, I think the Supremes will weigh in quickly, and that’s a case I would be extremely interested in, in part because I think the Supremes would be happy to overturn the actual precedent that allowed the government to do that (and that would be Buck v Bell, and O.W. Homles infamous jingle that “three generations of idiots are enough” which he said to justify forced sterilization). Like I said, for that case, count me in, and I can assure you all that is a case where the courts (and even the lower courts) will apply strict scrutiny.

But in these current and future UC cases, I am not seeing a fundamental right for any student or worker to study or work at the UC, which means a rational relationship, which means the plaintiffs get tossed out of court.

This is my legal opinion as to why I think you should assume that none of the lawsuits against the UC will succeed. Therefore, all UC students and employees are going to have to get vaccinated, get an accommodation/exemption (and you can forget about a medical exemption because ME’s like the ones given under SB 277 will not be accepted, the short of it being, no contraindication (or precaution) no exemption, period), or find someplace else to study or work.

I think your choices are that clear and that simple.

With all the crap and nonsense flying around about these lawsuits, someone has to tell people who are facing these tough choices what’s what, and since no one else seems to be stepping up to the plate, I guess I’m that guy.

Rick Jaffe, Esq.

No Decision Yet on Ken Stoller’s Case. When I know, you’ll know

No Decision Yet on Ken Stoller’s Case. When I know, you’ll know

Per the title, there is no decision yet from the Right Honorable James P. Arguelles on Ken Stoller’s appeal (writ of administrative mandate) of the Medical Board’s license revocation order. I know many of you have a lot at stake. The judge said it would take a couple of weeks. It’s only been 8 days, and there is a great deal of paperwork for him and his staff to review. So, let’s give the guy time to do his job. Trust me, I will post his decision with my initial and quick analysis very shortly after I receive it.

On a related front, I am involved in two other investigations involving the same issue. In those investigations, the Board is seeking the medical records of the physicians who wrote SB 277 medical exemptions. I filed opposition papers to the Board’s motion to compel compliance with the investigation subpoenas. Usually, these cases are losers, meaning that the courts grant the Board’s request based on a declaration from a pediatric infectious disease doctor who opines that the ME’s do not appear to comply with the “standard of care.” That’s usually enough for the courts, or so the four courts which had addressed the issue previously decided. (I was involved in one of the four cases).

But, my client wanted me to oppose the motion, so I did. I submitted a declaration from the vocal superstar clinical trials expert Jack Weiler who attacked the Board’s view of settled vaccine science. The thrust of our argument was that SB 277 created a different standard of care from ACIP guidelines, and as a result, the Board’s infectious disease expert’s declaration did not support the requisite “good cause.” (The Board can only defeat the patient’s state constitutionally protected privacy right if it establishes “good cause” for the records, which is usually done by the Board having an ID doc saying that the ME appears to be outside the “standard of care”.)

And yes, this is exactly the position we are taking in Ken Stoller’s appeal/writ, just in a different procedural context, i.e., an appeal/writ of a board order, versus a motion to compel compliance with an investigational subpoena. (basically, bookends of a board case, Stoller being the end of the case, the motion to compel is the beginning of a Board case, before a complaint (accusation is filed). But it’s the same legal issue. Our response to the motion to compel was upwards of 300 pages.

The motion was supposed to be heard yesterday, with the tentative decision coming out on Wednesday. Both this motion and Ken Stoller’s case are being heard in the Sacramento Superior court, but in different departments. There is a writ section that has a few judges who only hear writ/appeal cases, which usually involve government action. The motion to compel is being heard by the “Law and Motion” section which also has a few judges, and these judges decided all sorts of motions. (sorry for getting into the weeds, but it might be helpful context).

So, last week in Ken Stoller’s writ case, Judge Arguelles issued some written questions in advance of the oral argument which seemed to suggest that the Board used the wrong standard of care. The oral argument seemed to reaffirm this view (but you never how these things are going to turn out until you see the written decision).

The record in a writ case is much, deeper and better than the record in a mere motion, and procedurally, a writ gives the judge much more time to think about things. We have been submitting papers to Judge Arguelles since mid- March, whereas in a motion, the respondent (the doctor) has one shot. More problematical is that for each hearing day in the Law and Motion calendar, the judge has to churn out between 10 and 20 opinions on a wide variety of issues and different procedural contexts. I’m never optimistic about winning in Law and Motion on cases like this just because of the limited procedure and the assembly-line nature of the proceeding.

The judge hearing the motion to compel compliance had 18 motions on her docket to decide yesterday, and per the practice, the day before, she issued 17 substantive tentative decisions. In our case, on her own motion, she put the hearing off until August 12th, on her own motion!

I see two possible explanations: First, she needed more time to study the papers given our extensive response. Second, you guessed it; Maybe there is courthouse talk that something big is coming on this issue.

FYI about Judge Arguelles, he’s the guy giving the Governor a very hard time. He was the judge who doubled the time to obtain signatures for the recall petition. I think that was the time necessary to put the recall petition over the top to set up the recall vote.

Second, the Governor’s election lawyer made a mistake in the Governor’s submission for the recall ballot. He forgot to put in that Governor Newsom was running as a Democrat. Via a writ proceeding, the Governor sought to add that fact to the recall ballot. And you guessed it, Judge Arguelles said no, because the law was clear and there are no exceptions.

How is that relevant? Well, maybe it isn’t, but I think judges in a courthouse (same county) don’t like stepping on each other’s toes by writing inconsistent opinions which have to be cleaned up by the appellate courts. So, it is possible that between the amount of papers filed and the fact that there is another judge who is going to address the dispositive issue with a much better record, the judge on the motion to compel decided that she needs a little more time to study the papers and see what Judge Arguelles says. (and believe me, if he decides for us, I will make sure the motion judge gets a framed copy of his decision).

One more data point: Also on Wednesday I had a short hearing with another Law and Motion judge on another Board investigation of another doctor who wrote SB 277 ME’s, but this was just to set the hearing date on the Board’s motion to get this other doctor’s medical records. I asked for a little more time than he would normally give and explained the situation. He gave me the extra time.

So, there are a lot of interrelated moving pieces here. I have been working on this issue now for the past three years, and I am paying very, very close attention. I know how consequential Judge Arguelles’ decision will be to many of you. Believe me, when I know, you’ll know.

Rick Jaffe, Esq.