Spotlights 2023

December 22, 2023

Interest Groups in Litigation Against Childhood Vaccine Mandates

A number of lawsuits in the recent spate of anti-childhood vaccine litigation have had the financial backing of monied interest groups. These groups also appear to be coordinating their litigation strategy for the cases they are backing. While so far these challenges have produced only a few wins, the presence of wealthy backers means the suits are likely to continue, whether or not they are likely to succeed. Further, we can undoubtedly expect to see additional cases in the future. Those advocating for public health can take a page from their playbooks by collaborating across organizations to become more proactive in protecting public health authority.

ICAN

The most recent successful challenge to a state’s lack of religious exemptions for childhood vaccines is a Mississippi case funded by ICAN, the Informed Consent Action Network. The group’s website bills the organization as “empower[ing individuals] to make truly informed decisions about their own health and the health of their families.” A common tactic across these groups is couching their stance on vaccines in terms of informed consent and “man-made disease,” a term referring to vaccine related injuries, along with long-disproven claims that vaccines cause autism. They are advancing an “anti-government mandate” agenda primarily through lawsuits against public health authorities and through their media arm.

ICAN notched their first major win in Bosarge v. Edney, a case that found that Mississippi’s lack of religious exemptions to their childhood vaccine mandate violated the Free Exercise Clause of the First Amendment. Challengers in suits in other states unsurprisingly cite Bosarge in support of their claims that their states’ childhood vaccine mandates are unconstitutional. But they also appear to go one step further by repurposing the language of the Bosarge complaint for their own suits.

Advocates for Faith and Freedom

The religious liberty group Advocates for Faith and Freedom was founded in 2005, as a “legal ministry.” Their stated goal is to “safeguard[] the constitutional liberties that define the United States as a beacon of freedom and prosperity,” especially those arising out of the First Amendment, “such as freedom of speech and the free exercise of religion.” They are currently involved in multiple religious cases, primarily in California, that touch on a wide range of issues including vaccines, employment, trans rights, medical censorship, and more.

The group is currently involved in a challenge to the lack of religious exemptions to California’s childhood vaccine mandate. Royce v. Bonta was filed in the Federal District Court for the Southern District of California in October. Interestingly, large sections of the Royce complaint closely track the Bosarge v. Edney complaint. For example, both complaints describe the plaintiffs’ religious beliefs in the following terms:

“[The plaintiff and their spouse] prayed extensively and consulted the Bible when deciding whether or not to vaccinate [their child/children], and they arrived at the firm religious conviction that they must not. Because many of the required childhood vaccines were derived from aborted fetal cells, [plaintiff] believes vaccinating [his/her] children would cause [him/her] and [his/her] family to be complicit in abortion.”

The plaintiffs in each case describe arriving at their religious conviction through private prayer. Yet the language they use to describe these private events are nearly identical, suggesting that they coordinated their litigation efforts.

We The Patriots USA

We The Patriots USA, an anti-vaccine advocacy group, is based out of Idaho. Their stated goal is “to create a powerful network of Patriots to preserve and reclaim our God-given inalienable rights–including but not limited to the rights recorded in the United States Constitution–through education, advocacy, and litigation.”

We covered Milford Christian Church v. Russell-Tucker in last week’s newsletter. Milford was an unsuccessful challenge in the Federal District Court for the District of Connecticut to Connecticut’s decision to repeal its religious exemption to its childhood vaccine mandate. We The Patriots USA financially backed the plaintiffs in that suit. We The Patriots USA had previously challenged Connecticut’s vaccine mandate in We The Patriots, Inc. v. Connecticut Office of Early Childhood Development. The Second Circuit dismissed that case as well. The group has indicated they plan to apply to the Supreme Court for certiorari, with a stated goal of requiring religious exemptions nation-wide. We The Patriots USA has a page on their website detailing their ongoing efforts to overturn the Connecticut vaccine mandate. They specifically mention that they looked to the recent Mississippi case, Bosarge v. Edney, that overturned the lack of religious exemptions.

The We The Patriots USA v. Connecticut complaint and the Milford Christian Church v. Russell-Tucker complaint are very similar. They not only allege similar claims in nearly identical language, but they also use verbatim descriptions of vaccines and their risks. These similarities indicate that We The Patriots USA is not only backing the Milford case financially, but is perhaps coordinating on litigation strategy.

Children’s Health Defense

Another group looming large in the anti-vaccine space is the Robert F. Kennedy, Jr.-backed Children’s Health Defense (CHD). While not currently challenging a state childhood vaccine mandate, the group is involved in several suits challenging other vaccine policies. CHD’s focus areas are mostly pulled from common conspiracy theories, such as 5g cell towers being dangerous, the CDC suppressing COVID-19 information, and vaccines being ineffective.

Like many other groups, CHD uses obfuscating language to downplay their focus on eliminating vaccine mandates. Instead of stating they fight to eliminate vaccine mandates, the group states they “fight corruption, mass surveillance and censorship […] as well as advocat[ing] for worldwide rights to health freedom and bodily autonomy.” These goals sound admirable in the abstract, but upon a closer look devolve into a general anti-government stance. The fear and uncertainty surrounding the COVID-19 vaccine provided an opportunity for these groups to appeal to a wider audience of potential supporters.

October 27, 2023

Efforts to Vacate Federal Vaccine Mandate Cases

\The legal battles over the vaccine mandates instituted by the federal government in response to the COVID-19 pandemic are still being fought today. However, following the rescission of most mandates, the strategy pursued by the Department of Justice has recently shifted to vacating prior adverse decisions. This tactic, which seeks to reset the public health legal framework to what it was prior to COVID, has achieved some success, but has also faced pushback from some judges.

Background

As the pandemic wound down in 2023, the federal government began rescinding its COVID-19 vaccine mandates. However, this did not automatically stop the hundreds of lawsuits that were filed over the past two years, nor did it undo the injunctions that were in place.

In response, in recent months the federal government has begun to seek vacatur of injunctions that were entered against federal vaccine mandates. The precedent cited has been US v. Munsingwear, Inc., a 1950 Supreme Court case that held that when a case becomes moot before appeals are exhausted, the proper action is to vacate the lower judgment and dismiss.

If vacated, the injunctions and decisions imposing them will no longer carry precedential value. This will be important in the future, if there is another public health emergency requiring the federal government to issue vaccine mandates.

Current Landscape

As of yet, these attempts by the federal government to vacate injunction orders have not been successful. On the other hand, multiple cases where the initial preliminary injunction was instead denied have been dismissed as moot and the prior rulings vacated. Cases in the Fifth Circuit (Abbott v. Biden), Sixth Circuit (Livingston Educational Service Agency v. Becerra), Ninth Circuit (Donovan v. Vance), and D.C. Circuit (Navy Seal 1 v. Austin) have seen the lower court rulings vacated and the cases dismissed as moot.

Additionally, some federal attempts to vacate adverse decisions have already been denied. In at least two cases, judges have explicitly refused to vacate the prior rulings. In U.S. Navy Seals 1-26 v. Biden, the Fifth Circuit stated that the government “has not argued, much less shown, that the public interest would be served by vacatur.” In another recent case, Doster v. Kendall, the Sixth Circuit also refused to vacate a preliminary injunction order. One judge, in a concurring statement, wrote “That a party chooses to comply with our decision is hardly a reason to vacate it.” Doster v. Kendall is still pending, with a petition for certiorari filed in August with the Supreme Court.

A petition for certiorari on the question of vacatur is also pending before the Supreme Court in Biden v. Feds for Medical Freedom. That case was initially decided in January 2022, when the District Court for the Southern District of Texas held that the federal government had likely overstepped in mandating the COVID-19 vaccine for federal employees and issued a preliminary injunction. The Fifth Circuit, en banc, affirmed the preliminary injunction in March 2023. However, shortly after this decision came down, the vaccine mandate at issue was rescinded. Accordingly, the government petitioned for certiorari, asking the Court to remand and order the district court to vacate its preliminary injunction as moot. Should the Court grant review in Feds for Medical Freedom or Doster v. Kendall, the Court’s ruling will likely affect the decisions of circuit and lower courts regarding other motions to vacate.

Non-Mooted Ongoing Litigation

Furthermore, not all the federal vaccine mandate cases are moot. While in most of the federal vaccine cases the plaintiffs were placed on leave from their jobs while the litigation played out, in some cases individuals were terminated for failing to receive the COVID-19 vaccine. In such cases, like Schelske v. Austin, the matter is not actually moot because the individual suffered an injury in fact, loss of wages. These claims will continue to play out, unaffected by the rescission of the mandates.

January 20, 2023

Union lawsuits against city vaccine mandates

The Massachusetts Supreme Court heard oral arguments Friday, January 6th in Boston police and firefighter unions' lawsuit against the city of Boston for its COVID-19 vaccine mandate for city employees. A lower court blocked the mandate for union members last February, and the city appealed. The unions claim the city is not only violating their collective bargaining rights, but that the mandate will negatively affect already understaffed public agencies and current workers, causing irreparable harm.

Other unions around the country have brought similar suits, with varying results. Several courts have ruled in favor of union plaintiffs. In September 2022, a New York judge ruled that New York City’s vaccine mandate did not apply to police union members as it constituted “a new condition of employment.” In June 2022, a Minnesota judge ruled that St. Paul’s vaccine mandate constituted an unfair labor practice, as the city did not negotiate with union representatives before instating the mandate.

Not all unions have been successful, however. In February 2022, an arbitration panel ruled against a Philadelphia police union to uphold the city’s vaccine mandate. In June 2022, another arbitration panel ruled against a Philadelphia firefighter union, allowing the city to put on leave or fire employees who do not receive the vaccine.

In November 2022, an Illinois appeals court refused a police union’s request to invalidate an arbitration award in favor of Chicago that found the city could, within the collective bargaining agreement, unilaterally implement a vaccine mandate. The court stated that the unions “failed to identify a violation of a well-defined and dominant public policy requiring the invalidation of [the] arbitration award.” (Fraternal Order of Police, Chicago Lodge No. 7 v. Chicago, 2022 WL 16710025 (Nov. 4, 2022)).

According to the CDC, protection service employees, including police officers and firefighters, had the highest COVID-19 death rates in 2020.

September 22, 2023

Federal District Court in Mississippi requires religious exemptions to childhood vaccine mandate

On Tuesday, August 29th, 2023, final judgment was entered in Bosarge v. Edney, which held that Mississippi’s childhood vaccine mandate was unconstitutional and had to permit religious exemptions moving forward. The mandate was challenged under the Free Exercise clause of the First Amendment.

Background

Prior to the ruling, Mississippi was one of six states that did not permit religious exemptions to childhood vaccine mandates. Mississippi also currently has the highest childhood vaccination rate in the United States, and while 43 out of 50 states have seen measles cases in the past 10 years, Mississippi has not seen a case since 1992.

Mississippi has not always disallowed religious exemptions. Prior to 1979, religious exemptions were allowed, but only for those practicing a “recognized” religion that was known to require prayer or spiritual healing. In Brown v. Stone, a practitioner of an unrecognized religion sued on behalf of his child after his religious exemption was denied. The Mississippi Supreme Court held that only providing religious exemptions to some religions did, in fact, violate the Free Exercise clause, but did not order the remedy hoped for by the plaintiff. Instead, the court held that the state held an overriding interest in mandating childhood vaccinations to protect school children. Though the mandates might burden religious beliefs, “the exception, which would provide for the exemption of children of parents whose religious beliefs conflict with the immunization requirements, would discriminate against the great majority of children whose parents have no such religious convictions.” The court therefore ruled that the violation of the Free Exercise clause would be remedied by eliminating all religious exemptions, making Mississippi the second state at the time to do so.

The Present Case

The plaintiffs, Amanda Bosarge and other parents, sued Edney in his capacity as State Health Officer, the State Attorney General, as well as various local school principals, on behalf of their children. These children remained unvaccinated due to their parents’ religious beliefs, and under the Mississippi childhood vaccine law, they were therefore not allowed to attend public or private school. Backed by the Informed Consent Action Network, an anti-vaccine advocacy group, the plaintiffs filed suit in federal district court in September 2022, alleging that Mississippi’s policy denying religious exemptions violated their rights under the Free Exercise Clause of the First Amendment.

Judge Sul Ozerden, a George W. Bush appointee, issued a preliminary injunction on April 18th, 2023, holding that the plaintiffs had demonstrated they were likely to succeed on their claim and be found to be irreparably harmed if a process to receive religious exemptions was not immediately put in place.

Importantly, the Attorney General did not contest the plaintiffs’ claim that religious exemptions should be allowed, instead arguing that Mississippi law already permitted them. The court found uncompelling the Attorney General’s argument that the Mississippi Religious Freedom Restoration Act (MRFRA) indirectly allowed for religious exemptions, though neither the more specific vaccination statutes, nor the State Health Department’s policy allowed for them. The court did find compelling the Attorney General’s statement that barring the MRFRA, the mandate scheme would “substantially burden” some parents’ religious beliefs, and based on the prevalence of religious or philosophical exemptions in other states, a total ban on religious exemptions would not be “the least restrictive means” of protecting children’s health.

The preliminary injunction went into effect on July 15th, 2023, requiring the Mississippi Department of Health to develop a process to grant religious exemptions, or not enforce the vaccine mandate at all. Judge Ozerden held that even though preliminary injunctions ordinarily only apply to the parties involved, the admissions of the Attorney General supported making the ordered religious exemption process open to any who applied.

The court’s final order largely followed the same logic as the preliminary injunction. Drawing principally on the Supreme Court’s decision in Fulton v. Philadelphia, the Bosarge court’s opinion granting the preliminary injunction ultimately rested on the belief that medical exemptions and religious exemptions are the same, and to offer the former and not the latter violates the Free Exercise clause. The process to apply for a religious exemption created by the Health Department per the preliminary injunction was deemed acceptable by the court. The Health Department and state Attorney General advised the court that they would not oppose the motion for summary judgment or the permanent injunction.

What this means for public health

This case is representative of a larger trend attacking vaccine mandates, in particular childhood vaccines. Last week we covered Fox v. Makin, a Maine case similarly challenging a lack of religious exemptions that was allowed to proceed to trial. However, not all attacks have succeeded, with the Second Circuit recently upholding Connecticut’s 2021 repeal of religious exemptions in We the Patriots USA Inc. v. Connecticut Office of Early Childhood Development. More challenges to the remaining states without religious exemptions (California, Connecticut, Maine, New York, and West Virginia) on Free Exercise grounds are likely, though chances of success are less clear.

August 11, 2023

Second Circuit Upholds Connecticut Law Ending Religious Vaccine Exemptions for Students

On Friday, August 4, in We The Patriots USA v. Connecticut Office of Early Childhood Development, the Second Circuit, in an opinion written by Judge Chin, affirmed the district court's prior decision dismissing plaintiffs' complaints under the Free Exercise Clause, due process, and equal protection, ultimately upholding Connecticut's Public Act 21-6 ending religious vaccine exemptions for students as constitutional.

We The Patriots USA and CT Freedom Alliance, LLC, public interest organizations, along with several individual parents, sued several Connecticut agencies and three local school boards over Public Act 21-6. Public Act 21-6 amended broad vaccination requirements for children enrolled in public and nonpublic schools, children attending childcare centers and group childcare homes, and students enrolled in public and private institutions of higher education, such that religious exemptions to vaccination would no longer be permitted, while keeping medical exemptions in place. Plaintiffs argued that the Act violated the Free Exercise Clause, due process rights to privacy and medical freedom, equal protection, and liberty interests in childrearing. One plaintiff additionally alleged that the Act violated the IDEA.

On June 30th, 2021, the defendants moved to dismiss the complaint in district court, citing immunity for state agency defendants, lack of standing for the organizational plaintiffs, and failure to state a claim. The district court granted the defendants’ motion to dismiss on January 11th, 2022. The court concluded that the state agency defendants were immune from plaintiffs’ first four counts, that the organizational plaintiffs lacked standing, and that moreover plaintiffs had failed to state claims. Plaintiffs then appealed.

The Second Circuit temporarily suspended proceedings in the case pending their decision in M.A. v. Rockland County Department of Health, which involved another Free Exercise Clause challenge to emergency orders from the county. On August 4th, 2023, the Second Circuit upheld the lower court’s dismissal of the Free Exercise, due process, and equal protection claims, but vacated and remanded the district court’s dismissal of the IDEA claim. The court reviewed the public health background and legislative history of the Act, and then proceeded to address plaintiffs’ complaints on the merits.

The Second Circuit determined, in agreement with the district court, that the Act’s vaccination mandates were both neutral and generally applicable under standards set out previously by the Supreme Court, and as such only warranted rational basis review, which the plaintiffs conceded that the Act would survive. The court found that the Act, alongside its legislative history, "contain[s] no trace of hostility toward religion but rather reflect[s] significant accommodations on the part of the legislature". The court relied on several precedents to affirm the district court’s dismissal of the plaintiff’s substantive due process claims, particularly that there is no fundamental right to an education or to avoid vaccination, additionally finding that the mandate did not compel vaccination. They further concluded that the plaintiffs’ Equal Protection claim of age-based classification was appropriately dismissed, as the classification was rationally related to Connecticut’s interest in protecting the health and safety of students.

The Second Circuit disagreed with the lower court’s dismissal of the IDEA claim, stating that the district court had been overly restrictive in determining that one plaintiff’s child merely received special services and not special education. The Second Circuit held that the plaintiff had stated a plausible claim under the IDEA, vacating and remanding that part of the judgment for further proceedings.

Judge Bianco wrote a partial concurrence for the opinion, only disagreeing with the majority's dismissal of Plaintiffs' Free Exercise claim, taking issue with the majority's conclusion that the Act satisfied rational basis review during a motion to dismiss. Judge Bianco would have concluded that the plaintiffs stated a valid Free Exercise claim and that the appropriate level of scrutiny could not be determined at that stage, further stating that the majority's analysis "has troubling implications for the future of the Free Exercise Clause".

July 14, 2023

Michigan Court of Appeals Reverses Decision on Governor Whitmer’s Gatherings and Face Mask Executive Order

On June 29, 2023, in T&V Associates, Inc d/b/a River Crest Catering v. Director of Health and Human Services, the Michigan Court of Appeals, in a majority opinion written by Judge Gadola, reversed the Court of Claims’ previous decision and ruled that emergency orders limiting gatherings and requiring masking during the pandemic that were issued by Michigan’s health department were unconstitutional.

T&V Associates (T&V), a catering service and banquet facility, sued the Director of Health and Human Services (HHS), Elizabeth Hertel, for issuing the “Emergency Order under MCL 333.2253-Gatherings and Face Mask Order (The Order),” which was in effect from March 2020 to April 2021. Initially, Governor Whitmer had issued the Order pursuant to the Emergency Management Act of 1976 (EMA), MCL 30.401 and the Emergency Powers of the Governor Act of 1945 (the EPGA), MCL10.3.

In a previous decision, on October 2,2020, the Supreme Court of Michigan found Governor Gretchen Whitmer did not have authority under the state’s Emergency Management Act of 1976 (EMA) to declare a “‘state of emergency’ or ‘state of disaster’” regarding the COVID-19 pandemic after April 30, 2020. Hertel then issued the challenged order using her powers under MCL 333.2253, which grants the department powers to respond to epidemics.

On April 13, 2021, T&V filed its claim against the HHS, seeking declaratory judgment. Their claim stated that the defendant’s orders were unconstitutional and violated the plaintiff’s procedural and substrative due process. The lower court granted HHS’, motion for summary judgment on T&V’s claim under MCR 2.114(C)(8), which looked at the legal sufficiency of the complaint. The court stated the plaintiff failed to state a claim, the order was not unconstitutional, and it did not violate the plaintiff's due process.

On June 29, 2023, the Court of Appeals reversed the Court of Claims' decision. The appeals court examined the case's mootness, standing, the unconstitutional delegation of legislative power, and MCL 333.2253. The court determined the case was not moot as there was an actual controversy based on existing facts and rights. This was because the defendant limited the plaintiff's ability to operate its business; thus, the plaintiff was still affected by the defendant's actions. Additionally, although the defendant argued that there was no real controversy because the restrictions were no longer in effect, the judge contended that the plaintiff was an actual interested party and, therefore, had standing.

On the merits, the court sided with the plaintiff and found the executive branch’s exercise of power through the issuance of MCL 333.2253 under the EMA and EPGA was overwhelmingly broad. In finding that MCL 333.2253 constituted an unconstitutional delegation of legislative power to the executive branch, the court noted that the term “epidemic” was itself broad, and could apply to a wide range of threats.

The dissent, by Judge Yates, disagreed with the decision to reverse the Court of Claims’ holding. The Judge stated this case is “as moot as moot can be,” because HHS rescinded the Order and the T&V had closed its banquet facility. Therefore, T&V’s demand for declaratory relief is misplaced because they had ceased commercial operations and MCL 333.2253.

February 3, 2023

Eleventh Circuit Hears Oral Arguments in the CDC Transportation Mask Mandate Case

On January 17, 2023, a panel of the United States Court of Appeals for the Eleventh Circuit heard oral arguments in the CDC’s transportation mask mandate case, Health Freedom Defense Fund v. Biden. Judge Charles R. Wilson (appointed by President Clinton), Judge Adalberto Jordan (appointed by President Obama), and Judge Andrew L. Brasher (appointed by President Trump) questioned attorneys on both sides about the CDC’s mask mandate for airports, airplanes, and other transport issued in January 2021.

In April 2022, Florida federal district court Judge Kathryn Kimball Mizelle, issued a nationwide injunction against the mandate, finding the mandate exceeded CDC’s statutory authority. Also in April, another judge, Florida federal district court, Judge Paul G. Byron, ruled that CDC did have the authority to issue the mandate.

The judges questioned counsel on the CDC’s authority under Sec. 361 of the Public Health Services Act, and whether CDC violated the Administrative Procedure Act by not going through the rulemaking process before issuing the mandate.

The attorney representing the Health Freedom Defense Fund, one of the parties challenging the mandate, argued that adopting the CDC’s interpretation of the Public Health Services Act could give the agency the authority to issue a vaccine mandate.

Judge Jordan and Judge Wilson seemed to lean towards CDC’s interpretation of the statute, which would give the agency authority to issue the mask mandate. “If they [CDC] don’t have that authority, what authority do they have?” asked Judge Wilson. Judge Jordan questioned why the narrower definition of “sanitation” was the correct way of reading the Public Health Services Act, a key question in whether CDC is able to issue the mandate under the statute.

In terms of whether the CDC violated the Administrative Procedure Act by issuing the mandate via an emergency order, rather than a regulation, Judge Brasher called it a “slam dunk case” for plaintiffs. Judge Wilson didn’t seem as sure. Distinguishing the case from Alabama Ass’n of Realtors v. HHS, in which the Supreme Court struck the CDC’s eviction moratorium, Judge Wilson compared the “$50 to 80 million impact on landlords around the United States” with “require[ing] someone to wear a $2 mask.”

Public Health Law Watch submitted an amicus brief last year in support of the government.

January 20, 2023

Union lawsuits against city vaccine mandates

According to the CDC, protection service employees, including police officers and firefighters, had the highest COVID-19 death rates in 2020.