Court Refuses to Block Oregon Vaccine Mandate

A lawsuit filed by a firefighter and five public employees seeking to challenge Oregon’s COVID19 vaccine mandate because they already had the disease, has failed to block the October 18, 2021 implementation deadline.

Joshua Williams, identified in the complaint as station chief at Aurora Fire and Rescue, filed suit last month in US District Court along with Jennifer Lewis, David Klaus, Michael Miller, Phillip Kearney, and Jay Hicks. The suit alleges that Governor Kate Brown and Director of the Oregon Health Authority Patrick Allen violated their Constitutional right to privacy, bodily autonomy, and personal liberty by mandating the vaccine despite their already having had COVID19.

The suit sought an emergency temporary restraining order. In denying the request, US District Court Judge Ann Aiken held:

  • Plaintiffs do not wish to be vaccinated and have brought this action challenging the requirement that they be vaccinated as a condition of their continued employment.
  • A plaintiff seeking a preliminary injunction must show (1) that he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of the equities tips in his or her favor; and (4) an injunction is in the public interest.
  • The surge in COVID-19 cases put enormous pressure on Oregon’s medical resources and infrastructure.
  • “Caring for this large number of patients with COVID-19 along with other patients presenting for care has strained the ability of hospitals to provide care for everyone, forcing most to postpone non-urgent care, and leaving many people in Oregon suffering as they wait for non-urgent procedures, such as hip transplants.”
  • Aside from the risk of death, “[i]ndividuals who contract COVID-19 may suffer prolonged illness with severe complications, such as heart attack, stroke, blood clots and respiratory failure as well as long-term post- COVID conditions.”
  • “Vaccination remains the most effective tool to reduce the spread of COVID- 19.”
  • “Unvaccinated individuals exposed to COVID-19 are very likely to become infected in the absence of mitigation measures and may then transmit the virus to others,” while “[f]ully vaccinated people get COVID-19 (known as vaccine breakthrough infections) much less often than unvaccinated people.”
  • The vaccines have demonstrated continued effectiveness in protecting against the Delta variant of COVID-19.
  • “While hospitalizations and deaths soared among those not fully vaccinated, individuals who were fully vaccinated made up only a small percentage of hospitalizations and deaths during the current surge of cases in Oregon.”
  • “The majority of COVID-19 cases, hospitalizations and deaths during this surge are among those who are not fully vaccinated” and “counties with higher vaccination rates are associated with lower case rates.”
  • “To constitute a violation of substantive due process, the alleged deprivation must shock the conscience and offend the community’s sense of fair play and decency.”
  • The Supreme Court has held “that the ‘shock the conscience’ standard is satisfied where the conduct was intended to injure in some way unjustifiable by any government interest or in some circumstances if it resulted from deliberate indifference.”
  • Here, Plaintiffs contend that the vaccine mandates implicate a fundamental right to bodily integrity and privacy and that strict scrutiny should apply.
  • As the Seventh Circuit recently noted, “such an argument depends on the existence of a fundamental right ingrained in the American legal tradition.”
  • Plaintiffs’ argument was foreclosed more than a century ago by Jacobson v. Massachusetts, 197 U.S. 11 (1905), in which the Supreme Court sustained a criminal conviction for refusing to be vaccinated.
  •  In Jacobson, the appellant challenged a statute passed by the Massachusetts legislature that authorized the board of health of any city or town to require the vaccination of the town’s inhabitants, if it was necessary for public health or safety.
  • Under that statute, the board of health for Cambridge, Massachusetts issued a smallpox vaccine mandate and only allowed exceptions for children.
  • The appellant, Jacobson, refused to be vaccinated and was criminally charged and convicted by a jury.
  • On appeal, Jacobson argued that the vaccine mandate violated his constitutional rights.
  • The Supreme Court rejected Jacobson’s argument, holding that the exercise of liberty has always been subject to restraints imposed for the good of the whole commonwealth and that the police power of the state rests upon the ability to set such restraints.
  • In the specific case of vaccination, the Court observed that the Massachusetts legislature had conferred authority to impose vaccine mandates on the local health board because of their “fitness to determine such questions,” and that the delegation was not constitutionally improper.
  • The Court observed that “in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under pressure of great dangers, be subjected to such restraint to be enforced by reasonable regulations, as the safety of the general public may demand.”
  • The Court rejected the notion that a vaccine mandate violated either the liberty interests secured by the due process clause of the Fourteenth Amendment or the equal protection guarantees.
  • The Court also observed that questions concerning the efficacy of vaccination as a means of disease control was something considered by the state legislature in delegating authority to the local health boards and Massachusetts “was not compelled to commit a matter involving public health and safety to the final decision of a court or jury,” and reserved the question of judicial involvement to instances where the states undertake a “plain, palpable invasion of rights secured by the fundamental law” under the guise of police powers or when they enact a statute purportedly for the benefit of public health or safety but which “has no real or substantial relation to those objects.”
  • “Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution.
  • As the Supreme Court memorably summarized in its conclusion:
    • We are unwilling to hold it to be an element of liberty secured by the Constitution of the United States that one person, or a minority of persons, residing in any community and enjoying the benefits of its local government, should have the power thus to dominate the majority when supported in their action by the authority of the state. While this court should guard with firmness every right appertaining to life, liberty, or property as secured to the individual by the supreme law of the land, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law. The safety and the health of the people of Massachusetts are, in the first instance, for that commonwealth to guard and protect. They are matters that do not ordinarily concern the national government. So far as they can be reached by any government, they depend, primarily upon such actions as the state, in its wisdom, may take; and we do not perceive that this legislation has invaded any right secured by the Federal Constitution.
  • Courts have also consistently held that, following Jacobson, challenges to vaccination mandates are properly considered under rational basis review.
  • Applied to the present case, the Court has no trouble concluding that the vaccine mandates are rationally related to a legitimate state interest.
  • Because the vaccine mandates easily survive rational basis review, the Court concludes that Plaintiffs have not shown a likelihood of success on the merits of their claim for violation of their substantive due process rights, nor have they shown serious questions going to the merits of that claim.
  • Whatever hardships Plaintiffs face in choosing between accepting vaccination or leaving their employment are substantially outweighed by the interests and needs of the State of Oregon and her people.
  • The Court concludes that Plaintiffs have failed to demonstrate that either the balance of equities or the public interest weighs in favor of the requested injunction.
  • In sum, the Court concludes that Plaintiffs have failed to carry their burden….
  • The Court therefore DENIES the requested injunction.

Here is a copy of the decision:

Here is a copy of the complaint:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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