A federal judge has explained he recently refused to block the Illinois governor and Chicago mayor from forcing COVID-19 vaccinations upon Chicago city workers, saying the workers’ evidence against the value of vaccines was “slim” and the city’s evidence in favor was “substantial.”
Judge John Z. Lee, of U.S. District Court for the Northern District of Illinois, issued the explanation Nov. 24, declaring the workers “do not have a fundamental constitutional right to refuse COVID-19 vaccinations.”
On Oct. 21, a group of employees of Chicago’s fire, water and transportation departments asked Lee to stop Illinois Gov. JB Pritzker and Mayor Lori Lightfoot from ordering them to be vaccinated and tested for COVID-19 or risk losing their jobs. The workers claim the mandate trespasses on their rights to bodily autonomy.
They also argued they are being denied due process, because they are not given the right to show they do not need the vaccine because of natural immunity. Further, they asserted it is almost impossible to obtain a religious exemption.
According to Plaintiffs, requiring them to be vaccinated and submit to regular testing as a condition of employment infringes their fundamental right to bodily autonomy. More specifically, Plaintiffs argue that the vaccination and testing requirements violate the fundamental right to refuse unwanted medical treatment as articulated in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990) and Washington v. Harper, 495 U.S. 210 (1990). From this, they assert that, because they have identified a fundamental right at stake, the Supreme Court’s decisions in Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), require the Court to apply strict scrutiny to the vaccination orders. […]
As an initial matter, Plaintiffs’ argument that the Defendants’ vaccine orders infringe their fundamental right to bodily autonomy runs squarely in the face of the Seventh Circuit’s recent decision in Klaassen v. Trustees of Indiana University, 7 F.4th 592 (7th Cir. 2021). There, the Seventh Circuit upheld Indiana University’s recent vaccination, masking, and testing requirements against a challenge from a group of students, who asserted nearly identical substantive due process claims. … The students, like Plaintiffs here, argued that the vaccine requirement comprised an invasion of bodily privacy that merited strict scrutiny.
The Seventh Circuit in Klaassen soundly rejected that argument. It instructed that the Supreme Court’s decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905), “shows that plaintiffs lack” a substantive due process right not to be vaccinated against COVID-19. Klaassen, 7 F.4th at 593. The court further noted that the University’s testing requirements “cannot be constitutionally problematic” considering the sweeping vaccine mandates that Jacobson authorized. […]
Plaintiffs alternatively argue that Jacobson, which figured heavily in Klaassen’s analysis, should not guide the Court’s due process analysis because “it is part of a bygone era in American jurisprudence” akin to the Supreme Court’s discredited decisions in Buck v. Bell, 274 U.S 200 (1927), and Korematsu v. United States, 323 U.S. 214 (1944). But the Supreme Court has given no indication that Jacobson is void, and this Court cannot ignore binding precedent simply because Plaintiffs find it to be antiquated. Indeed, just this past year, Chief Justice Roberts cited favorably to Jacobson. […]
Plaintiffs’ reliance upon the Supreme Court’s right-to-privacy cases does not support their claim that Defendants’ policies infringe a fundamental right. As Defendants point out, the issues at stake in Roe, Casey, Cruzan, and Harper were “rights to individual bodily autonomy [that] do not impact the public health.” […]
The core flaw with Plaintiffs’ claim that refusing vaccination is a fundamental right, then, is not that there is no privacy interest implicated when someone is required or coerced to take a vaccine that they do not want. There certainly is. Rather, the problem is that, when a person’s decision to refuse a vaccine creates negative consequences (even life-threatening at times) for other people, that interest is not absolute. […]
On the present record, Defendants have demonstrated that their vaccination policies have a rational justification. Defendants have submitted a substantial amount of evidence supporting the public health necessity of vaccination and testing in abating the ongoing COVID-19 pandemic. […]
For example, Dr. Arwady notes that City employees are “approximately twice as likely” to be infected with COVID-19 than residents of Chicago as a whole. […]
In response, Plaintiffs argue that Defendants’ vaccination policies have no rational basis, because there is evidence that “natural immunity” against COVID-19 is more effective than vaccine-created immunity in preventing transmission. And to support this contention, Plaintiffs rely upon two academic sources. The first is a study that, while showing that prior infection from COVID-19 results in some degree of immunity, does not compare natural immunity with vaccine-created immunity. The second is an unpublished, non-peer reviewed study conducted in Israel in January and February 2021, to which Defendants have raised serious questions regarding its methodological rigor and reliability. This is the sum total of Plaintiff’s evidence. […]
For a government regulation to have a rational basis, the state need not prove the premises upon which it based the action to a degree of scientific certainty. Rather, the government need only show that its rationale is supported by a “reasonably conceivable state of facts.” Minerva Dairy, Inc. v. 16 Harsdorf. This is a low bar. And, in relying on federal and state public health recommendations, credible academic sources, and the expertise of its own health officials, Defendants have met this burden, even if there might be some scientific disagreement on the issue. […]
Second, many of Plaintiffs’ employment contracts are governed by collective bargaining agreements between the City and public employee unions. Thus, any alleged procedural deficiency in the alteration of Plaintiffs’ employment contracts is properly aggrieved under Illinois labor law. […]
Plaintiffs are correct that they have “the right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference,” Greene v. McElroy, but the vaccine policies in question are not unreasonable, because they satisfy the rational basis test. […]
But no Plaintiffs have been denied a religious exemption on grounds other than failing to adequately articulate their individual circumstances, as the City Vaccination Policy requires. […]
Plaintiffs’ [Illinois Healthcare Right of Conscience Act] claims against the Governor must be dismissed at the outset, because Governor Pritzker has properly invoked sovereign immunity. […]
(B)ecause Plaintiffs lack a fundamental constitutional right to decline vaccinations during times of pandemic, see Klaassen, 7 F.4th at 593, they cannot rely upon the abridgment of that right to establish irreparable harm. […]
The Seventh Circuit has indicated that there are circumstances where termination of employment may lead to irreparable harm, but only when the particular injuries alleged “really depart from the harms common to most discharged employees.” Bedrossian v. Northwestern Memorial Hosp.. Plaintiffs here have not alleged any such extraordinary injuries. [Emphasis added.]
Also, interesting that they cite the landmark Roe v. Wade, the Japanese-American internment case and the inmate sterilization case. So dramatic. We’re talking about a vaccine, for crying out loud.