COVID-19 Medical Freedom Warriors Seek to Use the Courts to Take on Vaccines

The undoubted bad behavior of governments during the pandemic has undermined their authority and tends to hand authority to the courts, which may not always be very friendly to personal liberty

While numerous bills were introduced in state legislatures prior to the pandemic challenging state vaccine requirements, politicization of vaccines has intensified since the COVID-19 pandemic. As politicians and in some cases, state health officials make moves to cater to angry, at times conservative or medical freedom-focused populations reacting to what many felt were overreaching COVID-19 pandemic programs, the health crisis led to a notable surge in vaccine-related litigation across America. To some extent, the vaccine policy area has moved from lawmaking and legislators into the courts, but TrialSite notes legislation continues to play a key role in vaccination policy. However, could litigation increasingly constrain what public health-minded legislatures can do to protect the public with vaccination schemes statewide?

SCOTUS shoots down some federal mandates

Since COVID-19 TrialSite reports on a growing presence of the courts as a source of power and vaccine policy---for example, profound issues related to vaccine science and public health powers may now be settled more by judges than by legislatures or public health experts via administrative actions.

An area with precedent, over a century of settled law confirms the constitutionality of state vaccine mandates—however, these increasingly may fall into question as dissenting justices of the US Supreme Court could lean toward undoing such legal tenets.

The highest court in America heard cases pertaining to federal and employer powers to compel vaccination, and in some cases shot down presidential edict during the pandemic on grounds of constitutionality, or lack thereof. More on that below.

CICP backlogged

A major thrust involving a confluence of forces, from traditional anti-vaxxers to newbies in the health freedom movement, to groups with claims such as the COVID-19 vaccine injured, targets the lower courts. In these forums, could some conservative-minded appellate judges possibly make moves to grind down liability protections for vaccine manufacturers? Meanwhile, political pressure against vaccine liability protection may grow, given the huge backlogs linked to the U.S Countermeasure Injury Compensation Program (CICP), established to compensate persons injured by COVID-19 countermeasures (vaccines).

How many are injured from COVID-19 vaccines?

TrialSite has reported on the appalling state of those programs, an utter failure leaving possibly tens of thousands of people with nowhere to turn. Some medical freedom movement figures claim the figure of COVID-19 vaccine injured to be in the many millions. TrialSite has estimated the number to be between a quarter-of-a-million to about two million people nationwide grappling with some set of challenges impacting quality of life. To put these figures in context, about 230 million people in the U.S. were deemed fully vaccinated during the pandemic.

With no end in sight, litigation could represent profound challenges for what government health agencies refer to as vaccine confidence or the lack thereof. Even public health itself during the pandemic, due in part to politicization from all sides, but also a range of behavior from over-reach to incompetence on the part of the government, has led to even questions about the legitimacy of public health agencies such as the Centers for Disease Control and Prevention (CDCP itself).

Does Jacobson v. Massachusetts stand the test of time?
Could the result of all of this be seismic changes in law around the country?

For example, states’ traditional rights to mandate vaccination could be under fire given the backlash against vaccination since COVID-19. For example, with the intense array of rules, mandates and the like emerging during the pandemic, now numerous lawsuits play out, reaching the highest levels including the Supreme Court.

In fact, on that topic, several cases have made their way to the high court, and the justices, conservatively leaning, have demonstrated a proclivity for revisiting past policies promulgated at the state level. Laws under the gun include Jacobson v. Massachusetts (1906) and Zucht v. King (1922)—both cases affirming a state’s ability to use its police powers to compel vaccination.

While Jacobson didn't touch on religion exemption cases working their way up, the highest courts are looking at these issues. Known as the COVID-19 Bar, the milieu of lawyers involved with challenging what’s known as the COVID regime, they suggest that Jacobson was decided in an era when the Supreme Court was upholding forced sterilization laws, and the eugenics movement sought to perfect the human race with unbridled and faith in science as an example of a different point of view.

Is Gorsuch a Justice to watch?

Justice Neil Gorsuch, a conservative-minded judge nominated by former President Donald Trump has expressed particularly more radical views when considering the mainstream medical and health policy establishment’s paradigm.

For example, Gorsuch has voiced agreement with expanding religious exemptions to immunization requirements, plus went on the record about COVID-19 public health actions stating they were, “the greatest intrusions on civil liberties in the peacetime history of this country.”

Moreover, in another case, Gorsuch suggested that public health actions need a material check on powers, lacking any imminent disease threat.

However, if such a ruling were ever to become reality the public health establishment would argue that this would undermine the ability of states’ public health agencies to strive for and maintain herd immunity against vaccine-preventable diseases, not to mention stopping outbreaks.

Importantly, in Zucht v. King (1922), the Supreme Court ruled that public schools can constitutionally exclude unvaccinated students, even when there isn't an outbreak of a particular illness. The 9–0 decision was made on November 13, 1922, after the case was argued on October 20, 1922.

But what if Gorsuch and others became a majority on this matter? Could they eventually overturn Zucht? That would dramatically change the face of public health in the United States. Will Gorsuch find the opportunity, based on mounting litigation working its way up the lower courts and above thanks to conflicting decisions—to apply his thinking which could literally eliminate modern public health powers?

What’s the status of religious exemption cases?

In Mississippi last year, a judge at the federal court level ordered the state to allow religious exemptions to immunization requirements. The result? What essentially is the upending of a 44-year-old state law established at the Supreme Court level, ruling that a lack of those exemptions does not violate religious freedom? How? By placing such religious freedom beliefs of a minority over more far-reaching public health interests.

In the above case, it was reported in the Mississippi Free Press on September 29, 2023, that the state’s attorney general would not oppose the ultimate decision favoring the anti-vaccine—or some might say pro-freedom litigants.

While such decisions may lead to less vaccination with traditional childhood scheduled immunizations, meaning diseases such as the measles could rise, public health agencies are also concerned about more systematic efforts of religious-focused anti-vaccine groups use of the topic as a front to systematically attack tried and true vaccination programs more broadly.

Ongoing litigations threaten federal powers

To many persons in what is broadly referred to as the medical freedom movement, President Joe Biden’s proclamations in August 2021 were an affront on freedom. A milieu of actions, from mandates to policies to bolster COVID-19 immunization rates, Biden’s administration took this approach despite the fact that the federal government traditionally wields little power involving healthcare laws. Rather, these laws fall under the state and local jurisdiction.

Biden’s actions generated resistance across a range of interests, including TrialSite. While this media is not “anti-vaxx” or even part of a “medical freedom movement,” we simply reported on the contradictions in the series of mandates and requirements Biden announced. One challenge was that by that point in time, the unfolding science was evident, that the COVID-19 vaccines did not stop viral transmission. Since they were not sterilizing vaccines and the durability of the vaccines was mediocre to say the least (e.g. waning in protection as quickly as in 90 days) the impetus to compel vaccination seemed a real stretch. After all these “vaccines” behaved more like temporary therapeutics.

Biden tapped into and exploited a collection of laws, powers and policies, from the Center for Medicare and Medicaid Service (CMS) contingencies for accepting federal health-related money to the Occupational Safety and Health Act involving government contractors to military personnel. The White House’s moves were challenged, with the Supreme Court ultimately diverging on the Biden mandates. While the Medicare requirement was kept, the Supreme Court shot down the other Biden mandates.

But even the CMS ruling, that contractors or organizations funded with CMS monies needed to mandate the COVID-19 vaccine, was ultimately terminated by the Biden administration itself. Was this move by Biden further evidence of a strengthening of the medical freedom movement?

Other upending of the public health system?

Attorneys favoring universal vaccination and robust public health authority express concern about recent court decisions. In one case, a New York judge rejected standard government vaccination policy because the COVID-19 vaccine failed to stop all viral transmission. Public health advocates fret that such decisions inhibit the exercise of public health authority on what they would argue were based on faulty premises. While not all vaccines fully stop transmission, they tend to certainly slow the spread, along with contributing to substantially lower morbidity and mortality rates. With courts intervening, inhibiting the public health authority to achieve its aims not only threatens the public health but also the balance of powers in the United States.

Supreme Court ruling tosses out “de minimus” standard
Has the medical freedom movement’s backlash to COVID-19 impacted what’s been an accepted authority on behalf of an employer to mandate vaccination on the job? Absolutely! See SCOTUS’ Groff v. DeJoy in 2022. In this case, the court clarified the undue hardship legal standard by addressing various lower court tests developed over the last 50 years that evaluated undue hardship in terms of whether an accommodation imposed “more than de minimis costs” or “substantial costs or expenditures” to the employer.

Based on this decision, employers must now prove “substantial increased costs” rather than the de minimis cost standard. We see a mounting number of cases driven by the Equal Employment Opportunity Commission (EEOC) involving numerous cases targeting employers due to the denial of religious exemptions to the COVID-19 vaccines. Will employers face more aggressive EEOC enforcements involving refusal to grant mandate exemptions? Some experts believe so.

What about the PREP ACT?

Importantly, manufacturers who marketed countermeasures during the pandemic (and after) benefit from broad liability waivers granted to vaccine makers such as Pfizer and Moderna, thanks to the Public Readiness and Emergency Preparedness Act (PREP Act). The presumption here is that any and all vendors involved with the development and administration of COVID-19 countermeasures benefit from universal liability protection by the government, again thanks to this legislation. But the emergence of some lawsuits has spooked government, industry, and other attorneys representing the countermeasure value chain. For example, in a handful of cases, the courts of appeal ruled that the PREP Act was not meant to preempt state tort claims, given that the emergency act fails to offer adequate judicial alternatives for injured plaintiffs.

Courts suggest ways around PREP Act

For example, ruling that the PREP Act wasn’t meant to fully supersede state law claims, the Third, Fifth, Seventh, and Ninth federal circuit courts have suggested that the PREP Act cannot completely preempt state law claims, thus allowing these claims at the state level to proceed. So, for example, negligence/willful negligence, or wrongful death, or perhaps some form of fraud could trigger state-based actions, meaning a federal action might be avoided in association with the case. TrialSite is currently tracking this topic. In one major case, M.T. v. Walmart Stores, Inc. invoking the PREP Act led to the ruling that this Act fails to afford an acceptable judicial alternative for injured parties.

In another major test, however, the Court of Appeals of Kansas found that the PREP Act does in fact preempt vaccine-related tort claims. As mentioned above, TrialSite has reported on emerging judicial conflict at the level of the federal appeals court, meaning the high likelihood of litigation over the PREP act.

Could Pfizer, Moderna, or even health systems that administered the mRNA COVID-19 vaccines confront hostile courts in the future? Any litigation that makes it through the seemingly impenetrable wall of PREP Act could open up discovery and a process not conducive to pharmaceutical industry innovation, especially if product liability claims breached such a legislatively constructed fortress.

Do we have the right to refuse?

With a marked rise in vaccine litigation post the COVID-19 pandemic and a fledgling medical freedom movement—which generally refers to a range of beliefs and activities advocating for individuals to have autonomy and choice regarding their own medical decisions, a host of issues, such as the right to refuse certain medical treatments or interventions; or for that matter, the right to choose alternative or complementary therapies, will increasingly confront courts at all levels.

Medical Freedom Movement’s future

Over a century of case law and precedent, involving an incrementally evolving, empowered public health reality could be under assault, or at least under fire, from a growing cadre of interests interested in the right to make informed decisions about one's own health care without undue interference or coercion. Ironically at least some stakeholders within the medical freedom movement take a staunchly anti-abortion stance, which has been embraced as part of the women’s freedom movement over the past decades. Will the medical freedom movement, often intersecting with debates around vaccine mandates, medical privacy, informed consent, and governmental or institutional policies that affect individual health choices, accelerate post-COVID-19, or on the other hand, slow down as the populace tires of anything and everything COVID-19?

Personal autonomy versus public health

Proponents argue that individuals should have the freedom to make decisions about their own bodies and health care without interference from external authorities, while critics may raise concerns about public health implications and the potential for misinformation to influence decision-making. This latter point of view raises serious concern about some of the court decisions made during the COVID-19 pandemic period. They view such decisions as a step backward from modernity. The medical freedom movement reflects broader discussions about personal autonomy, individual rights, and the balance between personal choice and public health considerations in the realm of medicine and healthcare, and no doubt the courts will continue to be where the parties clash.

https://www.trialsitenews.com/a/covid-19-medical-freedom-warriors-seek-to-use-the-courts-to-take-on-vaccines-is-this-a-march-backward-c2c9a5ee

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Also see my other blogs. Main ones below:

http://edwatch.blogspot.com (EDUCATION WATCH)

http://antigreen.blogspot.com (GREENIE WATCH)

http://pcwatch.blogspot.com (POLITICAL CORRECTNESS WATCH)

http://australian-politics.blogspot.com (AUSTRALIAN POLITICS)

http://snorphty.blogspot.com (TONGUE-TIED)

https://immigwatch.blogspot.com (IMMIGRATION WATCH)

https://awesternheart.blogspot.com (THE PSYCHOLOGIST)

http://jonjayray.com/blogall.html More blogs

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