NC Court Rules Federal PREP Act Protects Forced Vaccination Without Parental Consent
- by Carolyn Hendler, JD
- Published
- Federal & State Courts
A North Carolina Court of Appeals found that a clinic, where personnel gave a 14-year-old boy a COVID-19 shot without his consent or parental consent, was protected by the Public Readiness and Emergency Preparedness Act (PREP Act). The court concluded that the Guilford Board of Education, which hosted the clinic, was also covered by the PREP Act.1
Despite calling the act of forcing a child to get a COVID-19 shot against his will and without his parent’s consent, “egregious,” the court unanimously concluded that the PREP Act preempted state law and protected the defendants from being held liable for battery, violation of Tanner’s mother’s constitutional liberty and parental rights, and violation of Tanner’s bodily autonomy and plaintiffs’ federal constitutional rights.2
The minor child, Tanner Smith, attended Western Guilford High School in Greensboro, North Carolina when the school district sent a letter to his parents stating that Tanner was one of the students who may have been exposed to the SARS-CoV-2 virus and that, unless he got tested, he would not be able to “return to football practice until cleared by a public health professional.” The letter set forth that one of the local schools would be hosting a free clinic offering testing the following day. The letter explained that, “consent for testing is required.”3 4
The following day, Tanner’s step-father took him to the clinic at the local school for the free testing so that Tanner could return to football practice. The school district failed to inform the parents that a there was also a free vaccination clinic along with the free testing at the school that same day. While Tanner’s step-father waited in the car, Tanner filled out a form that he believed was for the free testing needed to return to football practice. At that time, one of the clinic workers attempted to reach out to Tanner’s mother but she was not available. Tanner’s step-father who was waiting outside the clinic was not called.5
Clinic Workers Said “Give It to Him Anyway”
Tanner made it clear to the the clinic workers that he was there for a COVID-19 test and not for the COVID shot and that he did not want a shot. However, one of the clinic workers was heard to have said, “give it to him anyway.” Despite his protest and the clinic’s failure to get parental consent, Tanner was given a Pfizer/BioNTech Comirnaty COVID shot.6
Trial and Appellate Courts Rule PREP Act Pre-Empts State Law
Tanner and his mother sued the school district and the vaccine clinic alleging battery, violation of Tanner’s mother’s constitutional liberty and parental rights, violation of Tanner’s bodily autonomy and violation plaintiffs’ federal constitutional rights.7 The trial court dismissed the complaint due to the PREP Act shielding the defendants and the decision was appealed.
The Court of Appeals affirmed the trial court’s decision. While North Carolina state law provides that “a health care provider shall obtain written consent from a parent or legal guardian prior to administering any vaccine that has been granted emergency use authorization and is not yet fully approved by the U.S. Food and Drug Administration (FDA) to an individual under 18 years of age,” the court found that the PREP Act pre-empts state law.
The court acknowledged that the intent of the state law is to protect bodily autonomy and parental rights and that the violation suffered by the plaintiffs when Tanner was given the shot against his wishes was outrageous, but ultimately concluded that the state statute was preempted by the federal PREP Act.
The court wrote:
Its intent is to prevent the egregious conduct alleged in the case before us, and to safeguard the constitutional rights at issue—Emily’s parental right to the care and control of her child, and Tanner’s right to individual liberty.” Notwithstanding, the statute remains explicitly subject to ‘any other provision of law to the contrary’ under the broad provision preempting state law in the PREP Act.8
The PREP Act Grants Immunity to “Covered Persons”
The PREP Act, which went into effect in 2005, states that when the Secretary of Health and Human Services declares that a disease, health condition or threat to public health or threat of same constitutes an emergency, the Secretary may recommend the use of one or more countermeasures.
The PREP Act provides:
Subject to the other provisions of this section, a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration under subsection (b) has been issued with respect to such countermeasure.9
The PREP Act Extends to Allowing Forced Vaccination
The court pointed out that this immunity extends to “any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure.” The PREP Act also has a broad provision preempting state law that provides that no state law may be in effect that conflicts with the PREP Act.10
To further define who was covered or granted immunity under the PREP Act, the Secretary set forth a declaration on Mar. 17, 2020 that defined “covered persons” as including, “manufacturers, distributors, program planners, and qualified persons, and their officials, agents, and employees, and the United States.”11
The court concluded that the Pfizer/BioNTech Comirnaty shot given to Tanner was considered a covered countermeasure. The court held that ONS Medical Society was considered a “covered persons” under the PREP Act as a program planner and community group that administered a vaccine clinic and provided vaccines to patients. The court further found that the school board was granted immunity under the PREP Act as it was a “state or local government…[that] provides a facility to administer or use a Covered Countermeasure.”12
The court wrote:
Bound by the broad scope of immunity provided by the PREP Act, we are constrained to hold it shields Defendants, under the facts of this case, from Plaintiffs’ claims relating to the administration of the COVID-19 vaccine.13
The Appellate Court held that the injury to Tanner, vaccination against his wishes and without his parents’ consent, is considered under the PREP Act because the PREP Act is extremely broad, providing immunity for “all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure.”
The PREP Act defines “Loss” as any type of loss. The court explained:
Wisely or not, the plain language of the PREP Act includes claims of battery and violations of state constitutional rights within the scope of its immunity, and it therefore shields Defendants from liability for Plaintiffs’ claims.14
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