Supreme Court Rejects Challenges to COVID-19 Shot Mandates
- by Carolyn Hendler, JD
- Published
- U.S. Supreme Court
The U.S. Supreme Court has rejected appeals to two COVID shot mandate-related cases brought by Children’s Health Defense (CHD). In one case, CHD appealed a lower court ruling that the non-profit group lacked standing to sue the U.S. Food and Drug Administration (FDA) over its authorization of the COVID-19 shots for young children. In the other case, CHD challenged the COVID shot mandate for students at Rutgers University in New Jersey.1
The Supreme Court did not issue an explanatory statement along with their denial of these appeals.2 By refusing to hear the cases, the Supreme Court has allowed the opinions of the lower court to stand.3
Appellate Court Dismissed CHD’s Claims Against the FDA
CHD, together with five sets of parents, sued the FDA over its emergency use authorization COVID shots for minors. The District Court dismissed the case finding that the Plaintiffs did not have standing to sue and the 5th Circuit Appellate Court affirmed that ruling. Plaintiffs alleged that when the FDA granted pharmaceutical companies an Emergency Use Authorization (EUA) to distribute the experimental biologicals, it did not adhere to the requirements of the Administrative Procedures Act (APA) reasoned decision-making requirements. Plaintiffs sought an injunction forbidding the marketing or promotion of the shots.4
A Plaintiff will have standing to sue when it has been demonstrated that the Plaintiff has suffered an injury in fact that is, “concrete, particularized, and actual or imminent;” the defendant caused the injury; and the injury would likely be redressed by the court.5 The injury must also be concrete, which has been defined as “whether the alleged injury to the Plaintiff has a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.”6
The Appellate Court agreed with the District Court that the Plaintiffs did not satisfy their burden of showing that their injury was concrete, particularized or imminent, rather than merely speculative.
The Appellate Court wrote:
To begin, it is insufficient that Plaintiff allege that some hypothetical third party might, at some hypothetical point in the future and through some hypothetical means, will vaccinate their children against their wishes.7
The Appellate Court added that CHD also lacked standing because the organization has not “diverted significant resources to counteract” the EUA granted to the COVID shots by the FDA. The Appellate Court ruling went on to state that the Plaintiff also has not shown that the FDA’s authorization, “concretely and ‘perceptibly impaired’” its ability to fulfill their mission. The courts dismissed the action due to lack of standing.8
Appellate Court Dismissed Challenge to Rutgers COVID Shot Policy
CHD and 13 Rutgers University students sued the public university over its COVID vaccine policy, which required all students attending in-person classes to get the controversial shots. Twelve of the 13 Plaintiff students asked for and were granted religious or medical exemptions. The Appellate Court affirmed the district court’s opinion that the Plaintiffs failed to state a claim for relief.9
The 3rd Circuit Appellate Court found that all of the students and CHD had standing to sue Rutgers University and therefore addressed the merits of the case.10
The Appellate Court agreed with the lower court that Rutgers COVID vaccine policy did not conflict with the federal EUA law, which provides that when presented with an experimental product, one has to be given the option to accept or refuse the product because Rutgers students were given three options: (1) take the shots; (2) refuse the shots and apply for an exemption or (3) continue their education on line or at another university.11
The Appellate Court pointed out:
That choice may have been difficult. But there is no unqualified right to decide whether to “accept or refuse” and EUA product without consequence… Nor is there an unqualified right to attend a university, let alone the university of one’s choice, without conditions.12
The Appellate Court Relied on Jacobson v. Massachusetts (1905) Ruling to Uphold COVID Shot Requirement
The Appellate Court also found that although Rutgers University, a state school, is not considered a state actor for eleventh amendment purposes, it is deemed a government instrumentality when it comes to federal and constitutional civil rights laws. Plaintiffs argued that the university does not have the right to require the COVID-19 shots as a condition of attendance or to keep unvaccinated students out of school housing. The Court disagreed. It found that New Jersey statutes and codes granted Rutgers University the right to impose restrictions on students including vaccine requirements, and that the Supreme Court in the seminal ruling in Jacobson v Massachusetts in 1905 affirmed the constitutional authority of states to mandate smallpox vaccine to protect the community from disease and gave historical precedence to requiring vaccination for in-person school attendance.13
In Jacobson v. Massachusetts, Henning Jacobson, a Swedish immigrant and Lutheran minister, took issue with a Massachusetts Board of Heath law that demanded individuals get a second smallpox vaccination or be subject to a $5 fine. Jacobson and his son had both suffered reactions to previous smallpox vaccinations. Jacobson took the case all the way to the Supreme Court alleging that the smallpox vaccination requirement violated his 14th Amendment right to liberty and equal protection under the law and arguing that he and his son were genetically predisposed to negative vaccine reactions as evidenced by their serious reactions to previous smallpox shots.
The 1905 Supreme Court majority found that during smallpox epidemics, state legislatures have the constitutional authority to impose mandatory vaccination laws to “secure the general comfort, health and prosperity of the state”.14
Court Finds COVID-19 Shot Requirement Did Not Violate Student’s 14Th Amendment Rights
Plaintiff students made the argument that Rutgers’ COVID vaccine policy violated their substantive due process under the 14th Amendment. Finding that there was no fundamental right to refuse vaccination, due to settled law based on the Jacobson decision, the Court used the rational basis test to determine whether Rutgers’ COVID vaccine mandate violated the 14th Amendment of the U.S. Constitution.15
In order to decide whether a law violates the 14th Amendment, courts will utilize one of three judicial review tests: (1) strict scrutiny; (2) intermediate scrutiny and (3) rational basis test. Of al three tests, the easiest hurdle to overcome is the rational basis standard because it simply requires that there be a rational connection between the law and the law’s means and goals.16
The Supreme Court relied on Jacobson and distinguished more recent cases the Plaintiffs relied on, such as Cruzen v. Director, Missouri Department of Health, which found that a competent person had a right to refuse medical treatment because it determined that the COVID shots did not fall under the category of personal health decisions and instead was a matter of “public health safety.”17
The Supreme Court’s Increasing Reliance on Jacobson v. Massachusetts
Explaining why the decision in Jacobson remains paramount, while dismissing vaccines as, “a minor intrusion,” the Appellate Court pointed out that the Supreme Court has come to rely heavily on Jacobson in recent years…18
The Court’s more recent pronouncements confirm Jacobson’s vitality. Just last term, the Supreme Court declined to recognize a substantive due process right against substantial and lengthy intrusions on a person’s right to control her body where even one “life or potential life” is at risk. See Dobbs, 142 S. Ct. at 2277 (citation omitted). Surely, then, it would not now recognize a fundamental right to avoid the “relatively modest” intrusion of a vaccine, Roman Cath. Diocese of Brooklyn, 141 S. Ct. at 71 (Gorsuch, J., concurring), where innumerable lives are at risk. To the contrary, in the last three years alone, the Supreme Court has cited Jacobson five times, and the federal appellate courts, for their part, have uniformly relied on Jacobson in dismissing challenges to vaccination requirements.19
Court Finds Individuals with Natural Immunity Are Not Similar to the Vaccinated
Plaintiffs argue that they were denied equal protection under the law because the students were required to take the novel shot prior to faculty and staff having the same requirement. The Court disagreed, finding that the faculty and staff were not similarly situated as the students because New Jersey law only requires students and not faculty to take ACIP recommended vaccines.20
Using the rational basis standard, the Appellate Court easily found that Rutgers had a rational explanation and a compelling interest for their COVID vaccine mandate and dismissed the Plaintiff’s equal protection argument.21
The Appellate Court also took issue with the Plaintiff’s position that students who had previously recovered from COVID and were naturally immune to the virus were similarly situated as vaccinated students and therefore must be treated similarly. Citing the U.S. Centers for Disease Control and Prevention (CDC) recommendation that those naturally immune from a previous SARS-CoV-2 infection were more likely to get COVID again, the Appellate Court sided with Rutgers University policy, stating that since the policy was not arbitrary or irrational, it was constitutional.22
The Appellate Court concluded:
And again, even if Rutgers’ Policy was “to some extent both underinclusive”—by (initially) excluding certain staff members—“and overinclusive”—by including students with ‘natural immunity’—“perfection is by no means required” under rational basis review. Vance v. Bradley, 440 U.S. 93, 108 (1979) (citation omitted).
By refusing to hear these cases challenging the COVID vaccine mandates, the Supreme Court has sent the message that they do not have an issue with these rulings at this time and the Appellate Court rulings upholding Jacobson v Massachusetts stand.23
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