NC Supreme Court Allows Lawsuit After Child Was Given COVID-19 Shot Without His or Parental Consent
- by Carolyn Hendler, JD
- Published
- Bioethics
The State Supreme Court in North Carolina has ruled that a mother may sue the public school system and a physician’s group for giving her son the COVID-19 shot without her informed consent. In a split 5-2 decision, the state’s highest court overturned the trial and Appellate Court decisions that denied the mother’s right to sue due to the Public Readiness and Emergency Preparedness Act (PREP Act).1
Healthy Child Forcibly Given COVID Shot
Tanner Smith was a fourteen year-old child attending 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.”2 3
The following day, Tanner’s stepfather 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 vaccination clinic along with the testing center at the school on that same day. While Tanner’s stepfather 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 stepfather, who was waiting outside the clinic, was not called.4
Clinic Workers Administering COVID Shots Said “Give It to Him Anyway”
Tanner made it clear to 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 say, “give it to him anyway.” Despite his protest and the clinic’s failure to get informed consent from a parent, Tanner was given a Pfizer/BioNTech Comirnaty COVID shot.5
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.6
The trial court dismissed the complaint ruling that the PREP Act shielded the defendants from liability but the decision was appealed. The NC Court of Appeals affirmed the trial court’s decision. While North Carolina state law provides “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 broad reach of the federal PREP Act pre-empts state law.7
The NC State Supreme Court Takes a Different Approach
North Carolina’s highest court disagreed with the lower courts and found that the defendant’s conduct was not entirely protected by the PREP Act. The NC State Supreme Court wrote:
[W]e are tasked with considering whether Congress intended the PREP Act to immunize state actors who forcibly vaccinate a child without his or his parent’s consent, thereby committing a battery and infringing their fundamental rights under the state constitution. The PREP Act’s plain text leads us to conclude that its immunity only covers tort injuries. Because tort injuries are not constitutional violations, the PREP Act does not bar plaintiffs’ constitutional claims.8
The court found that the North Carolina Constitution, under the Law of the Land Clause which is similar to the 14th Amendment Due Process clause, gave Emily Happel the fundamental right to control the upbringing of her son, including the right to make medical decisions on his behalf and, along with Tanner, the right to his bodily autonomy.
Chief Justice Paul Martin Newby writing for the majority opinion wrote:
[T]he constitutional right to full ‘custody and control’ over one’s minor children would ring hollow if it did not include the right to consent on the child’s behalf, as well as the right to seek a constitutional remedy when the State disregards the absence of that consent. Our state constitution and caselaw have long implied the existence of the precise right plaintiffs claim here. We directly recognize it today.9
The split 5-2 court opinion stated that the Law of the Land secures the right to bodily integrity, which means that a competent person has the right to refuse forced, nonmandatory medical treatment. The court distinguished the U.S. Supreme Court’s 1905 ruling in Jacobson v. Massachusetts, which stated that people are subject to certain restraints for the public good from the decision in Cruzen, which found that one has a right to refuse medical treatment because individualized medical decisions such as in Cruzen do not invoke the public welfare.10
The high court further distinguished the instant case from these notable court decisions in that Emily and Tanner do not contest a vaccine mandate. Instead, they protest, “an unwanted, nonmandatory medical touching that in this instance just so happened to be a vaccine.”11 Accordingly, the court did not apply the notorious Jacobson decision to the matter at hand.
North Carolina Law Not Preempted by Federal PREP Act
Generally, state law is preempted by federal law when there is a federal law on a point that conflicts with state law because federal law is the supreme law of the land and overrides state law. However, in this case, by analyzing the language of the Prep Act itself, the court found that the PREP Act does not usurp state law. The court stated that “we do not believe that the PREP Act intended to effectively erase deeply engrained and fundamental constitutional rights.”12
The court hung its hat on the fact that plaintiff’s state constitutional claims are not, “claims for losses” as set forth in the PREP Act. The PREP Act clearly states that the immunity provided by the PREP Act is limited to, “all claims for losses.”13
The Prep Act’s definition of a loss includes death, physical injury and property damage. The majority opinion found that these types of losses fall squarely under tort law. A tort is defined as an act or omission that causes harm to another such that a civil wrong was committed and courts may find liability.14 A tort claim is a different type of claim than a claim that one’s fundamental constitutional rights were violated. After careful analysis, the court concluded that Congress did not intend for the PREP Act to provide immunity against state constitutional claims.15
Family Law Claims are Exclusively Decided By State Law
The majority opinion further clarified that Emily and Tanner’s claims fall under family law and that Emily has a right to control Tanner’s upbringing. Family law has long been held to be exclusively determined by state law without interference from federal law. The court wrote:
Nothing in the PREP Act “positively requires” state family law’s preemption…That failure provides even more reason to conclude that Congress did not intend to preempt the state constitutional claims plaintiff brings in this case.16
Justice Philip Berger wrote a concurring opinion with Justice Barringer joining him in finding that the PREP Act goes too far in granting immunity to health care workers. The Justice points out that immunity under the PREP Act should be “predicated on a lawful administration of a covered countermeasure” and not grant immunity for outright wrongful acts such as forced vaccination without consent, which would amount to a battery.17
The court was split among party lines with Republicans siding with the majority opinion and Democrats dissenting. Justice Allison Riggs, who wrote the dissent, claimed that the majority carved out an exception for state constitutional claims from the broad immunity conferred by the PREP Act by using a “series of dizzying inversions” and undermined the very protections the PREP Act was meant to provide.
Justice Riggs wrote:
While I agree that the constitution protects rights to bodily integrity and those of parents to care for their children, I cannot concur in their articulation here.18
The court remanded the case back down to the Appellate court to determine the state constitutional claims consistent with this opinion.19
Plaintiff’s attorney, Steven Walker said:
I was very pleased to see the Court recognize the serious liberty implications of government actors administering medicine or other treatment without the consent of the patient or the patient’s parent.
If you would like to receive an e-mail notice of the most recent articles published in The Vaccine Reaction each week, click here.
Click here to view References: