Judge Upholds Illinois Vaccine Mandate

A federal district court judge has upheld a vaccine mandate ordered by Illinois Governor Jay Robert Pritzker, from a challenge brought by six Naperville firefighters. The lawsuit filed in September claimed the vaccine mandate exceeded the governor’s authority, and violated the firefighters’ constitutional rights.

In a lengthy ruling, US District Court Judge John Robert Blakey concluded Governor Pritzker had the authority to issue the mandate, the City of Naperville had the right to enforce it, and neither violated the rights of the firefighter-plaintiffs. For those with the interest in the subject-matter and time to read the entire 87-page (53-pages as formatted by Lexis) decision, it extensively covers the law related to COVID-vaccine mandates in exceptional (albeit FF-nauseating) detail.

For those not so inclined, here are some of the highlights (which themselves are quite lengthy):

  • Plaintiffs’ suit alleges that the mandates adopted by the Governor and the City of Naperville infringe their constitutional rights.
  • The complaint includes allegations that EO 2021-22 [the vaccine mandate] violates the constitutional guarantee of due process (Count I) and equal protection (Count II) under the Fourteenth Amendment.
  • Plaintiffs’ primary legal challenge sounds in due process (both substantive and procedural) and equal protection.
  • With respect to substantive due process, Plaintiffs maintain that the Order impinges upon two, long-recognized fundamental rights:
  • the right to bodily autonomy, free from intrusions by the state; and
  • the related right of privacy.
  • On bodily autonomy, Plaintiffs rely on Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), which held that a “competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment”.
  • On privacy, Plaintiffs rely on Roe v. Wade, 410 U.S. 113 (1973) and its progeny for the notion that “some liberty interests, including the right of privacy and the right of bodily autonomy, trump a concern about the possible loss of life.”
  • Liberty is important, but it is not absolute: “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”
  • Instead, there are moments when an individual’s liberty must bow to an exercise of the state’s police power in the interest of public health.
  • With these concepts in mind, the Jacobson Court [Jacobson is the leading SCOTUS case on vaccine mandates dating back to 1905] defined a deferential “substantial relation” standard of review for a court’s evaluation of compelled vaccination during an active smallpox pandemic within the community: courts should intervene only “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”
  • The Jacobson case, however, does not stand for the proposition that anything goes in mandating vaccines.
  • Before closing, the Court warned that in other cases the police power of a state may be exercised in ways so arbitrary or oppressive as to justify judicial interference.
  • [C]ontrolling precedent requires that this Court [to] apply rational basis review to Plaintiffs’ constitutional challenges.
  • Essentially, when rational basis applies, the inquiry may be broken down into analytical steps: first, the court needs to identify some legitimate government purpose for the challenged law; second, the court must examine the relationship between the purpose and the government’s chosen approach. If there is a rational relationship between the two (i.e., ends and means), then the Court must uphold the state action.
  • Having set out the Court’s preliminary fact-finding role and subsequent deference in evaluating the “rationality” question, the Court now turns to Plaintiffs’ claim that the mandate is irrational on the facts and thus unconstitutional as a matter of law.
  • The thrust of Plaintiffs’ due process challenge is two-fold: (1) the mandate is based on a misconception that vaccinated individuals are less likely to spread the SARS-CoV-2 virus than the unvaccinated and naturally immune; and (2) natural immunity provides incredibly strong protection against infection from COVID-19, and it does so on par with any vaccine protection.
  • Thus, Plaintiffs argue that even if the Order is only subject to the rational basis standard, it irrationally ignores the fact that “natural immunity to COVID-19-that is, immunity caused by infection with COVID-19 and recovery-is incredibly strong” and that there is no discernible difference in protection between the naturally immune and vaccinated.
  • This Court need not [analyze the transmissibility of COVID between vaccinated and unvaccinated] even though the evidence does not establish that COVID-19 vaccines, in fact, reduce the degree of SARS-CoV-2 viral transmission, the question of whether they might reduce the rate of transmission still constitutes an issue falling within the bounds of rational speculation.
  • Consequently, the Defendants’ “degree of transmission” theory provides a “conceivable” basis for the mandate under the rational basis test, at least as to those without natural immunity.
  • That is all that the rational basis test requires.
  • [E]ven without evidence, “rational speculation” is enough, as a matter of law, to uphold legislative choices under rational basis test.
  • This is enough to doom Plaintiffs’ substantive due process challenge.
  • To demonstrate a procedural due process violation at trial, the plaintiff must establish: (1) a cognizable liberty or property interest; (2) a deprivation of that interest; and (3) a denial of due process.
  • The thrust of Plaintiffs’ procedural due process challenge is that “the Executive Order is illegal under Illinois law, and therefore violates Plaintiffs’ rights to procedural due process.
  • In response, the Governor raises the shield of sovereign immunity.
  • Given the limited factual record (and Plaintiffs’ failure to properly develop separate procedural and substantive due process theories), this Court cannot say that Plaintiffs have demonstrated that the Order amounts to an unreasonable government interference with their right to earn a living.
  • Consequently, Plaintiffs have failed to establish a likelihood of success on their procedural due process claim.
  • The Equal Protection Clause of the Fourteenth Amendment provides that no state shall make or enforce a law that denies to any person within its jurisdiction the equal protection of the laws.
  • At worst, an equal protection violation occurs either where “a regulation draws distinctions among people based on a person’s membership in a ‘suspect’ class [or] based on denial of a fundamental right.”
  • Race, alienage, and national origin have long been recognized as “suspect classes.”
  • In the “absence of deprivation of a fundamental right or the existence of a suspect class,” the proper standard of review is the rational basis test.
  • Plaintiffs identify two classes that the disputed mandates treat differently: the vaccinated and the unvaccinated (including those with and without natural immunity).
  • While the mandates undoubtedly treat the groups differently, Plaintiffs have not identified any legal support for the notion that vaccination status alone is a traditional suspect (or quasi-suspect) class within the meaning of the Equal Protection Clause.
  • Nor, as discussed above, have Plaintiffs established that the rights involved constitute “fundamental rights” under the Constitution.
  • Plaintiffs do claim, however, that the unvaccinated constitute a politically demonized group, which the mandate seeks to harm.
  • In promulgating the Order, Plaintiffs argue, the Governor (and other political leaders) expressed “palpable hostility to the unvaccinated,” further demonstrating that the purpose of the mandate is punitive, rather than ameliorative.
  • If the purpose of the mandate is to punish, as Plaintiffs suggest, the Court should review the mandate more strictly.
  • Specifically, Plaintiffs point to the Governor’s effort to unjustly demonize vaccine-hesitant persons with the false statements that the “unvaccinated make up 99% of the deaths that are occurring in the State of Illinois,” and further that the current public health crisis is a “pandemic of the unvaccinated.”
  • In so doing, Plaintiffs endeavor to invoke a more searching form of judicial review.
  • Given the preliminary factual record, however, Plaintiffs have failed to show that the statements made by the Governor constitute sufficient evidence of animus and thus, absent more facts, traditional rational basis review governs their equal protection challenge.
  • Under the rational basis test and factual record presented, Plaintiffs have also failed to show that the mandate’s differential treatment of the vaccinated and unvaccinated violates equal protection.
  • For the reasons above, and consistent with the oral preview from the bench, this Court hereby denies Plaintiffs’ motion for preliminary injunction.

Here is a copy of the ruling, handed down yesterday, December 19, 2021.

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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