We have tried to be pretty balanced in addressing a number of decisions over the last few months relating to lawsuits brought by the euphemistically labeled “vaccine hesitant” and their brethren who advocate aggressively for entitlement to “alternative” medical treatments like anti-parasitic (veterinary) drugs.  We have been restrained in treating these lawsuits as having been brought in good faith even though the law did not support the relief sought therein.  As far as we can tell, the courts hearing these lawsuits have treated them seriously and written thoughtful orders with none of the clever zingers that sometimes draw attention when issued in decisions on less charged cases.  While it is certainly true that many of what we now consider bedrock civil rights principles have been established though seminal lawsuits that cited some of the same constitutional provisions as these cases cite, we confess that we are prone to assume that these cases are without merit.  Somewhat similar to how we find offensive any comparison between requirements to wear a mask in certain settings and Nazi laws requiring Jews to wear identifying badges or armbands, the implicit and sometimes explicit parallels in the complaints and briefs in these lawsuits to actual violations of civil rights do not sit right with us.  This certainly goes for challenges to the policies of educational institutions.  As any parent of a child who has attended any public or private school knows, they have policies about what vaccines and/or medical screenings are required and when exemptions or exceptions apply.  As anybody reading this blog, watching reputable news programs, or otherwise paying attention these days probably knows, the Supreme Court established pretty clear precedent on “vaccine mandates” back in Jacobson v. Massachusetts, 197 U.S. 11 (1905).

Yet the lawsuits keep coming despite the rejection of similar arguments by many courts, many of which are detailed here, here, here, and here.  We cannot say if the arguments in Children’s Health Defense, Inc. v. Rutgers, The State Univ. of New Jersey, No. 21-15333 (ZNQ) (TBJ), 2021 WL 4398743 (D.N.J. Sept. 27, 2021) (hereinafter, “CHD”), were more extreme than in other cases percolating through the court system.  We suspect, having done a bit of investigation but not having read the complaint or briefs ourselves, that this case is, sadly, not an outlier.  The basic facts are that a corporation—with a name that seems disconnected to the case—five named individuals, and 13 Does sued Rutgers and a bunch of related defendants in an attempt to strike down the portion of the Rutgers policy “requiring students to be vaccinated prior to returning to campus.”  The policy was issued in the spring, but the suit was brought in late August, right before students returned to campus.  The decision focuses on one plaintiff, Pinto, whose situation reminds us of some proposed class representatives we have seen through the years.  We will explain that later.  The plaintiffs offered up seven counts based on a range of constitutional, state and federal law, equitable, and even contract grounds, seeking a temporary restraining order.  That was converted into a request for a preliminary injunction in the decision.  We will explain that later too.

Although the case was predicated on the twin notions of urgency and irreparable harm, the first thing the plaintiffs did after filing their motion for a temporary restraining was try to recuse the judge assigned to the case.  Could that be because he is the first Muslim-American Article III Judge?  Could it be because he was nominated by President Biden rather than some former president?  Regardless of the reason, plaintiffs did not pursue the option under Fed. R. Civ. P. 65 of seeking an immediate ex parte temporary restraining order.  Then, after the motion to recuse was denied, the plaintiffs sought and received an extension on the briefing schedule.  Along the way, they expanded the relief they sought (to include registration for the Spring 2022 semester).  2021 WL 4398743, *4 n.2.  Still, the order, now ruling on what was treated as a motion for preliminary injunction, was issued within a week of finishing the briefing and a month of filing the case.  Pretty fast, especially with a motion to recuse in the mix.

Boiled down, the plaintiffs wanted Rutgers to amend its policy to account for the purported particular circumstances and preferences of one student who refused to be vaccinated against COVID-19 (but probably had received many other vaccinations before getting to be a senior in college).  The Rutgers policy generally required such vaccination (among others), but exempted a category of “fully remote” students, among other exemptions.  Pinto, of course, did not meet the criteria as a “fully remote” student and claimed the enforcement of the policy as written violated her rights “to informed consent and to refuse unwanted medical treatment.”  Id. at *2 & *6.  As defined at Rutgers, a “fully remote” student was one in an online degree program, who had not matriculated as a regular student, did not get a student ID, etc.  Id. at*3.  Pinto had been a regular student, but claimed that she only wanted to take one final online class to graduate and promised that she would not come to campus.  (The sob story about one last class was not true, as she would need to take at least one other, in-person, class to graduate.  Id. at *7.)  She also claimed without support to have a natural immunity against COVID-19 and a history of unspecified health problems—presumably to suggest why she would not want to vaccinated as opposed to why she would—but she had not applied for the available medical exemption.  Id. at *3.  We pause here because we assume that Pinto was selected as something of a test case to invalidate the existing Rutgers policy and strike so blow against public health-driven vaccination policies.  Like many purported class representatives, though, it looks like her story was not so compelling after a bit of digging.

The standards for a preliminary injunction are fairly well-known and have not changed much since before we were in law school.  The four part test starts with a likelihood of success on the merits—which is often decisive—and includes consideration of irreparable harm to the movant, harm to the non-movant, and public interest.  The CHD court walked through each of these in turn.  First up was whether plaintiffs established that there was a likelihood of success on the merits.  As you might expect given Jacobson¸ Klaassen, and some other cases we have discussed before, they did not.

Here, although Plaintiffs have rights to informed consent and to refuse unwanted medical treatment, as Jacobson explained, these rights are not absolute.  Jacobson 197 U.S. at 26.  Second, like Jacobson, it is for the legislature not the Courts to determine what modes of protection would likely be effective against the vaccine.  Third, given the severity and number of cases and deaths during the COVID-19 pandemic so far, there is a real and substantial relation between the Policy and the need to protect public health.  Last, as the Jacobson Court noted then, other states and countries in Europe have likewise enacted similar vaccine policies giving more legitimacy to the Policy at issue.  Therefore, based on Jacobson, Plaintiffs are not likely to succeed on the merits.

Id. at *5.  Given that the legal authority did not support striking the Rutgers’ policy, plaintiffs also argued that their ad hoc exemption should be added to it.  That also failed.

Plaintiffs are understandably eager to distinguish Ms. Pinto’s particular case by self-applying the label of “fully remote student” and contending that her decision not to be vaccinated therefore cannot pose a risk to students on campus.  But Rutgers defines what constitutes a fully remote student, not Ms. Pinto, and she does not meet Rutgers’ definition.

Id. at *6.  The term “slippery slope” is overused in legal advocacy and analysis, but this really would have been a slippery slope had plaintiffs grafted Pinto’s exemption onto the Rutgers policy.  Other individualized exemptions would surely have followed until the policy had no teeth.

Speaking of slippery, plaintiffs also did not establish irreparable harm absent a preliminary injunction.  Their choice to wait five months from the announcement of the policy to seek injunctive relief (not to mention their prioritization of trying to recuse the judge over seeking a TRO) was a “self-inflicted harm.”  Id. at *7.  Plus, because the claim that Pinto only needed the fall on-line class to graduate was false, any harm from the policy was not irreparable.

By contrast, an injunction against Rutgers would cause “administrative harms” in terms of the “time, costs, and efforts.”  Id. at *7.

Defendants would be required to develop and adopt policies and make new procedures to accommodate Plaintiffs’ whenever they were on campus.  These policies may require the following:  (1) prior notice anytime any of the Plaintiffs appear on campus, (2) physical safety accommodations for others in the Rutgers’ community while also accommodating the unvaccinated students, and (3) maintenance and safety measures in every room and building the unvaccinated students appeared.

Id.  Similarly, forcing Rutgers to change its policy as requested “would place the health and safety of others inside and out of Rutgers’ community at risk.”  Id.  Thus, there was “a strong public interest against granting injunctive relief.”  Id.

So, plaintiffs did not get a TRO or preliminary injunction, but Rutgers had to defend itself in court and judicial resources had to be expended for what, to us, seems like a selfish and politically-motivated challenge.  We expect it will not be the last challenge like this to a college or university’s vaccination policies, no matter how many such challenges are rejected along the way.  While there certainly have been situations where persistence in the face of repeated legal setbacks ultimately yielded important decisions in favor of civil rights, we cannot see a reason that would happen here.  Nor do we think a reversal of Jacobson would be a step forward.  Public health in the U.S. has been advanced significantly in large part because of vaccination programs since Jacobson, something not terribly surprising if you recall that the program of smallpox inoculation for the Continental Army played some role in allowing there to be a U.S. in the first place.