Photo of Bexis

Bexis was a mere college freshman, and a Princeton football manager, on September 28, 1974.  In the first game of the season, Rutgers played Princeton at Princeton’s old (and rather decrepit) Palmer Stadium.  With about three minutes to go and Rutgers up 6-0, Rutgers fans swarmed the field and tore down both sets of goalposts.  When Princeton tied the game up with less than half a minute left, without goalposts we could not kick an extra point.  A two point conversion failed, and Rutgers escaped with a tie.

Not quite half a century later, Rutgers scored an actual win.  This time Bexis is pleased.  In Children’s Health Defense, Inc. v. Rutgers, the State University of New Jersey, ___ F.4th ___, 2024 WL 637353 (3d Cir. Feb. 15, 2024) (“CHD”), the Third Circuit affirmed the right of a publicly supported university to require COVID-19 vaccination as a prerequisite to its students’ in-person attendance.  We blogged about this outcome in the district court, and its precedential affirmance is even more significant.

In reopening after its pandemic shut-down in 2021, “Rutgers announced that student vaccination would be a condition of attending fall classes in person or having physical access to campus resources.”  Id. at *1.  It provided medical and religious exemptions, and also gave its students options to attend “fully remote” or “to disenroll and attend a different university.”  Id.  Students with exemptions “were excluded from university housing, required to test weekly, and . . . required to mask.”  Id. at *3.

Nonetheless a baker’s dozen of antivax students (12 of whom had exemptions) and an antivax organization sued, id., asserting various theories that purportedly gave them the right to infect fellow students at will.  Id.  They lost, “based on the application of well-settled law and in line with every other federal court to have considered similar challenges.” Id. at *1 (footnote omitted).

Their first argument was FDCA-based implied preemption.  As much as we like preemption, no basis for preemption exists based with respect to the informed consent requirement of the statute’s provision governing emergency use authorized (“EUA”) products, such as (at the time) COVID-19 vaccines.  First of all, only one of the plaintiffs ever sought vaccination, so the rest were never entitled to informed consent at any time.  Id. at *5.  Second, the FDCA (21 U.S.C. §360bbb-3) didn’t obligate the defendant university to do anything at all.  Rather, it “obligate[d] only the Secretary of Health and Human Services” to create “‘conditions designed to ensure’ informed consent.”  CHDI, 2024 WL 637353, at *5.  Since the FDCA didn’t “impose any obligations” on anybody but the FDA, “it cannot conflict” with anything these defendants did or didn’t do.  Id.

Even more dispositive of the plaintiffs’ preemption argument – there was no conflict at all with anything in the FDCA.  The plaintiffs simply “were not deprived of the right ‘to accept or refuse’ the vaccine.”  Id.  They didn’t have to be vaccinated (all but one of them refused); they just wouldn’t have the same privileges at Rutgers as vaccinated students.  Their “choice may have been difficult,” but, that’s life in the big city.  “[T]here is no unqualified right to decide whether to ‘accept or refuse’ an EUA product without consequence.”  Id.  Impossibility preemption is “demanding,” Wyeth v. Levine, 555 U.S. 555, 573 (2009), and these antivaxxers didn’t come close.

The next ground is state specific, and we don’t care as much about it.  CDHI held that a university had full power under New Jersey law to condition returning to campus on students being vaccinated.

Even aside from the terms to which the students agreed on as a condition of matriculation, [New Jersey regulations] provided [defendants] with statutory authority to temporarily exclude a student with medical or religious exemptions from classes and from participating in institution-sponsored activities during outbreaks. . . .  In view of [defendants’] explicit statutory authority to take the actions it did, we perceive no error.

CHDI, 2024 WL 637353, at *6 (citation and quotation marks omitted).

We’ve written on substantive due process and vaccination mandates several times before.  Indeed, one of those posts traced every vaccination-related citation to the principal United States Supreme Court decision, Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), for over a century.  Once again, Jacobson (the decision, not defendants’ attorney who argued CHDI) was dispositive.  CHDI, 2024 WL 637353, at *8.  “[F]ederal courts have uniformly held [that] there is no fundamental right to refuse vaccination.”  Id. at *7 (footnote collecting COVID-19 decisions omitted).  Jacobson was directly on point, and nothing has superseded or impaired its holding.

Plaintiffs relied solely on decisions that were “categorically distinct.”  Id. at *9.  Cases involving “health decisions with consequences for only the individual involved” stood in “stark contrast” to vaccination mandates, which concerned “broad-based matters of ‘public health and safety.’”  Id. (quoting Jacobson, 197 U.S. at 12).  “[I]n 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.”  Id. (footnote omitted).

In short, there is no fundamental right to refuse vaccination, nor any unconstitutional condition implicated here.  Accordingly, we apply rational basis review . . . as did the Court in Jacobson and as we have done traditionally with the policies of other universities.

Id. at *10 (citations omitted).

CHDI then held that mandatory vaccination requirements pass rational basis review with flying colors.  “Curbing the spread of COVID-19 is ‘unquestionably a compelling interest.’”  Id. (quoting Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 18 (2020)).  Minimizing COVID-19 among students in accordance with “the recommendations of experts, including at the CDC and FDA” was “undoubtedly rational.”  Id.  The plaintiffs’ overblown claim of financial conflict of interest due to the university’s participation in vaccine development did “did not alter” the court’s rationality conclusion because:  (1) as already held, protecting student health was a compelling interest; (2) the benefits of the vaccines had been determined by governmental authorities; and (3) the conflict allegations were without factual basis – “bare-bones” allegations asserted on “information and belief.”  Id. at *10-11.

Plaintiffs’ equal protection claims were equally bogus.  First, the allegations of disparities between “similarly situated groups (students versus staff) were, like the plaintiffs’ conflict-of-interest claims, purely ipse dixitId. at *13.  In fact, “students and faculty are not similarly situated,” but rather “those populations are treated very differently under the laws governing vaccination.”  Id.

[S]tudents, even before the pandemic, were subject to [defendants’] immunization policy, which required them to submit their complete vaccination history at least six months before enrollment, required in-person students to be vaccinated against even less virulent viruses like influenza, and reserved [defendants’] right to deny unvaccinated students access to housing or class registration in the “case of a public health emergency.”

Id. (citation and footnote omitted).  Students – all the individual plaintiffs – thus, had to be vaccinated and knew it.  Staff, however, were subject to collective bargaining.  Id. at *14.  Defendants thus “easily passe[d] the low threshold for a ‘rational basis’ to require vaccination for students.”  Id.

Nor could plaintiffs who had already had COVID-19 prove they were similarly situated to students who had instead been vaccinated and avoided catching the disease.  That claim was scientifically false according to the CDC, and “no laboratory test existed” that could establish the purported equivalence.  Id. at *15.

Preemption, New Jersey state law, substantive due process, and equal protection all failed in CHDI.  Four failed downs is a loss of possession in football – and affirmance of dismissal with prejudice here – whether or not the goalposts still stand.