The recent case of Happel v. Guilford County Bd. of Educ., 2025 N.C. LEXIS 191, 2025 WL 879618 (N.C. March 21, 2005), will probably provoke a political debate, but that is not why your friendly neighborhood DDL blog has it up for discussion today.  In Happel, the North Carolina Supreme Court created an exception to the Public Readiness and Emergency Preparedness (PREP) Act , 42 U.S.C. section 247d-6d preemption for a state constitutional claim against governmental actors who allegedly “forcibly vaccinated a child without his or his parent’s consent.” 

The plaintiffs in the case were a 14 year old high school football player and his mother.  After the school spotted a cluster of Covid-19 cases among the football team, it suspended all team activities and required players to undergo testing and to be “cleared by a public health professional” before returning to practice.  The player showed up a clinic for what he thought would be only testing.  Instead, personnel at the clinic wanted to vaccinate the player.  The player did not consent.  The clinic attempted to contact the player’s mother to secure her consent, but could not reach her.  Then – and here is where the facts get ugly – “[i]gnoring additional protests from [the player] himself, the workers forcibly injected him with the first dose” of a Covid vaccine.  The player and his mother later sued the school board and medical personnel for battery and for constitutional violations. 

Notably, the Happel case did not involve a vaccine mandate. Rather, consent was supposed to be a prerequisite to administration of the vaccine. It just did not happen that way in this case. Have you heard the saying that hard cases make bad law? Sometimes easy ones do, too. 

The defendants relied on the PREP Act to immunize them from liability.  We’ve written about PREP Act immunity several times before, including here and here.  The PREP Act confers broad protections  for certain “covered persons” during public health emergencies, rendering them “immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure.”  To effectuate this purpose, the PREP Act expressly overrides or preempts any conflicting state laws.  The Secretary of Health and Human services had issued a declaration identifying the Covid-19 outbreak as a public health emergency, thereby activating the PREP Act’s immunity provision.

The defendants in Happel argued that they were “covered persons” applying countermeasures, and that they should therefore be immune from the plaintiffs’ lawsuit.  The trial court agreed with the defendants’ arguments about the PREP Act and dismissed the suit.  The Court of Appeals unanimously affirmed.   

But the North Carolina Supreme Court, exercising de novo review, reversed.  An early hint of that outcome is supplied by the majority opinion’s start to the Background and Procedural History section:  “During the Covid-19 pandemic, ‘we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country.’” (quoting from Arizona v. Mayorkas, 143 S. Ct. 1312, 1314 (2023)(Gorsuch, J.)).  Er, okay. 

The opinion goes on to recognize PREP Act preemption of all state-law tort claims, but also holds that “tort injuries are not constitutional violations.”  That means that the battery claim was preempted.  But the constitutional claim was another matter.  The North Carolina Supreme Court held that fundamental rights under the state constitution were in play.  Specifically, the court was concerned about the mother’s “parental right to control the upbringing of her son and plaintiffs’ shared right to [the son’s] bodily autonomy.”  The North Carolina Suoreme Court recognized both rights under North Carolina law, which is hardly a surprising result  

The majority decision held that the PREP Act preemption did not bar the constitutional claims. Remember how the preemption provision reaches “all claims for loss caused by, arising out of, or relating to, or resulting from, the administration to or the use by an individual of a covered countermeasure.”  The court rejected a “literalist interpretation” of that clause, which would seem to favor preemption.  Instead, the court reasoned that the state constitutional claims were not “claims for loss.”  To our eyes, constitutional deprivations look like species of loss, but the North Carolina Supreme Court saw things differently. It saw “loss” as a “measurable and compensable type ordinarily associated with tort law.”  The court saw tort law as protecting citizens from each other, while constitutional law protects citizens from the state.  So goodbye battery claim, but the constitutional claims get to stick around. 

With the caveat that the authors of this blog are usually pro-preemption, we think the majority’s preemption analysis is off the mark because it applies a presumption against preemption in opposition to the express preemption of the PREP Act.  The analysis also mixes in various implied preemption cases.  None of that analysis dislodges the simple fact that the PREP Act preemption clauses do not limit it to “tort” or other particular types of action. The court calls the PREP Act “ambiguous” as to whether it extends to “unconstitutional conduct.”  The court seizes hold of such purported ambiguity in declining to preempt – or “tamper with” – “state family law.”  

In rejecting the defendants “literalist interpretation” – and whatever happened to Justice Kagan’s conclusion that we are all textualists now? – the majority goes through a series of contortions (the dissent describes them as “dizzying inversions”) to poke a hole in the Act’s broad preemption clause. 

None of this is necessary, however, as the scope of preemption is determined by the scope of the HHS emergency declaration, and that declaration provided that “liability immunity is afforded only to the extent such program planners obtain Covered Countermeasures through voluntary means.” 

While the dissent has the better of the preemption issues, the “voluntary means” language of the declaration would seem to control the ultimate outcome, at least at this stage where the factual allegations are assumed to be true.  If courts are wise to avoid constitutional issues whenever possible, the North Carolina Supreme Court might have strayed a bit here.  With the Happel opinion and its blessing (for now) of a lawsuit against administration of the Covid-19 vaccine, the court certainly made news. The niceties of preemption analysis are worthy of debate.  But somehow, we suspect that the social media characterizations of the opinion will be on a less rarefied level.