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Another day, another court ruling: Refusing vaccination is not a fundamental right

Tuesday, Nov 30, 2021

* Cook County Record

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.

* I’m going to post several excerpts because it’s a very important opinion

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.]

Plaintiffs are also in Cook County court on the state labor law issue

Unions for city workers have made headway, in separate court actions, to block the vaccine mandate on grounds it goes against collective bargaining agreements. The unions have argued the mandate didn’t let them arbitrate grievances concerning the mandate. Those cases remain pending. However, the city has told a Cook County judge it expects to have arbitration on the unions’ vaccine related grievances completed before the Dec. 31 COVID vaccine mandate deadline.

If you see any other excerpts that should be posted here, let me know in comments. Thanks.

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.

…Adding… A commenter boiled this opinion down to one succinct sentence: “It’s not all about you.”

- Posted by Rich Miller        

46 Comments
  1. - Pot calling kettle - Tuesday, Nov 30, 21 @ 11:46 am:

    This bears repeating: “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”

    That’s it in a nutshell. I might have it printed on a t-shirt.


  2. - Lt Guv - Tuesday, Nov 30, 21 @ 11:49 am:

    Amen.


  3. - Skeptic - Tuesday, Nov 30, 21 @ 11:51 am:

    What @Pot said. And to boil what the court said down to its essence: “It’s not all about you.”


  4. - H-W - Tuesday, Nov 30, 21 @ 11:54 am:

    So very thorough, and such commonsense.


  5. - H-W - Tuesday, Nov 30, 21 @ 11:59 am:

    == Plaintiffs are correct that they have “the right to — follow a chosen profession free from unreasonable governmental interference,” Greene v. McElroy, but the vaccine policies in question are not unreasonable ==

    Unreasonable people have the right to work. They just do not have the right to work wherever they wish. I am sure there are plenty of employers who will hire them without vaccines.


  6. - NonAFSCMEStateEmployeeFromChatham - Tuesday, Nov 30, 21 @ 12:10 pm:

    Fire all the vax refusees and strip their pensions and benefits.


  7. - Pundent - Tuesday, Nov 30, 21 @ 12:12 pm:

    Good to see the court drawing a clear distinction between the rule of law and the rule of feelings.


  8. - Narc - Tuesday, Nov 30, 21 @ 12:14 pm:

    Can the press please stop framing this as people being “forced” to get vaccinated? They’re perfectly able to continue working there and stay purebloods, pristine and unviolated by the satanic vaccine. They just have to get regularly tested. If anything this is a testing requirement, which is waived if you get vaccinated.


  9. - 47th Ward - Tuesday, Nov 30, 21 @ 12:14 pm:

    You’re not looking too hard, are you Al?

    https://www.nebraskamed.com/COVID/covid-19-studies-natural-immunity-versus-vaccination


  10. - JS Mill - Tuesday, Nov 30, 21 @ 12:17 pm:

    =I have yet to find any peer reviewed research that people recovered from a disease benefit from a vaccine.=

    Dr. Robert Murphy, and infectious disease physician and professor of medicine. He is the John Philip Phair Professor of Infectious Diseases at Northwestern University where he serves as executive director of the Institute for Global Health and the Center for Global Communicable Diseases, disagrees with you.

    I think I will go with his expertise.

    With regard to the ruling, it validates what many of us already thought. And this one counts. Your rights do not supercede the rights of others.


  11. - duck duck goose - Tuesday, Nov 30, 21 @ 12:26 pm:

    I am flummoxed by the argument that I have the constitutional right to be Typhoid Mary. Not even Typhoid Mary had the right to be Typhoid Mary.


  12. - Huh? - Tuesday, Nov 30, 21 @ 12:31 pm:

    =I have yet to find any peer reviewed research that people recovered from a disease benefit from a vaccine.=

    Push the google key.. CDC says you are wrong.

    “… there is substantial immunologic and increasing epidemiologic evidence that vaccination following infection further increases protection against subsequent illness among those who have been previously infected. …”

    https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/vaccine-induced-immunity.html

    Must getting health information by be reading facebook.


  13. - Captain Obvious - Tuesday, Nov 30, 21 @ 12:33 pm:

    This rationale could be used to justify a mandatory flu vaccine as well. After all, the flu kills 50,000 every year on average (a very negative consequence). So what’s the number or standard to infringe my rights? Seems like the flu vaccine should be mandatory as well under the logic outlined above. Pandemic every year and as the Oswego oracle is fond of pointing out, those people can’t undie. It seems like the covid vaccine and flu vaccine are about equal in overall effectiveness. Can still get the virus with both. So again, what standard is in place to determine when my rights can be infringed?


  14. - Flying Elvis'-Utah Chapter - Tuesday, Nov 30, 21 @ 12:37 pm:

    On cue, Captain Obvious with the slippery slope argument.


  15. - Nick Name - Tuesday, Nov 30, 21 @ 12:38 pm:

    ===We’re talking about a vaccine, for crying out loud.===

    Never underestimate the stubbornness, anti-science mania, and conspiracy theory nuttiness of anti-vaxxers.


  16. - 47th Ward - Tuesday, Nov 30, 21 @ 12:39 pm:

    ===So again, what standard is in place to determine when my rights can be infringed?===

    I thought it was obvious: when public health authorities determine that a public health emergency exists that requires infringement on your rights.

    I mean, where have you been this past two years? It’s been in all of the papers.


  17. - Roadrager - Tuesday, Nov 30, 21 @ 12:44 pm:

    Every day, these people are being encouraged to swing their fists as they please without any regard for the noses of anyone who may be around them. Good on this federal judge for calling that what it is, but the problem is that other federal judges seem to see no problem with it, which means this is far from over.

    Related, “This is far from over” seems to be a slogan I can apply broadly to present-day life, and I do not care for it.


  18. - Oswego Willy - Tuesday, Nov 30, 21 @ 12:47 pm:

    === After all, the flu kills 50,000 every year on average (a very negative consequence). So what’s the number or standard to infringe my rights? Seems like the flu vaccine should be mandatory as well under the logic outlined above. Pandemic every year and as the Oswego oracle is fond of pointing out===

    This is a global pandemic.

    When you equate it to the flu, it’s obvious your ignorance is about owning someone to feel good.

    In less than 2 years, in the US, more died with coronavirus than in the civil war, that took 4 years.

    This ain’t no flu.


  19. - Cheryl44 - Tuesday, Nov 30, 21 @ 12:48 pm:

    Your rights aren’t being infringed. My place of work suggests very strongly we get flu shots, but then they show me on many other ways they appreciate my work besides making it less likely I’ll get sick.


  20. - Surfer - Tuesday, Nov 30, 21 @ 12:53 pm:

    - NonAFSCMEStateEmployeeFromChatham - Tuesday, Nov 30, 21 @ 12:10 pm:

    Fire all the vax refusees and strip their pensions and benefits.

    That’s funny…in order for that to happen pritzkerwould need to mandate vaccines for all state workers, which he hasn’t let alone required testing.this I know for fact.


  21. - illinifan - Tuesday, Nov 30, 21 @ 12:54 pm:

    Captain Obvious, The flu vaccine this year is estimated to be 40-60% effective (some years only 30%)https://www.cdc.gov/flu/vaccines-work/vaccineeffect.htm VS the Covid vaccine being about 90% effective https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/work.html. Second the flu has been around and medical staff have identified some effective treatments, vs COVID is new and treatments are still being developed. Third, in 2019-2020 there were 35 million flu cases with 20,000 deaths. COVID has caused over 48 million cases and killed over 775,000 people in the US. COVID therefore has a higher mortality rate than flu. Different illnesses, different results, different responses. That should be obvious.


  22. - JS Mill - Tuesday, Nov 30, 21 @ 12:58 pm:

    =It seems like the covid vaccine and flu vaccine are about equal in overall effectiveness. Can still get the virus with both. So again, what standard is in place to determine when my rights can be infringed?=

    Well, if you can read, I recommend that you read the judgement Rich was kind enough to share with the class. The Federal judge lays it out very clearly.

    But you want a number and exact number and if you don’t get it then there must be something wrong is the vibe I am getting. I guess you are never going to be satisfied, but if it helps this most recent pandemic killed 600,000 in the first year. As math goes that is a much bigger number than 50,000. At least 550,000 more.


  23. - Oswego Willy - Tuesday, Nov 30, 21 @ 1:38 pm:

    === Is an article in “Nature npj Vaccines” sufficiently peer-reviewed to meet your criteria?===

    Where exactly is this peer review you are or are not trying to… what are you doing exactly?


  24. - Pot calling kettle - Tuesday, Nov 30, 21 @ 1:38 pm:

    ==what standard is in place?==

    From the ruling: “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.”


  25. - Mary - Tuesday, Nov 30, 21 @ 1:53 pm:

    “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.” Yet in Illinois, the decision to have an abortion is 100% certainly life-terminating. We have held that is not enough, and that the right to abort is a fundamental right that cannot be infringed.


  26. - Geesh - Tuesday, Nov 30, 21 @ 1:53 pm:

    Non afscme
    Give it a rest
    We get it
    You don’t like state employees or their pensions
    That’s not what this discussion is about


  27. - Oswego Willy - Tuesday, Nov 30, 21 @ 1:55 pm:

    === abortion===

    As a male, can someone cough on me, and make me pregnant.

    Can a female be coughed upon and get pregnant?

    I mean, geez Louise.


  28. - Demoralized - Tuesday, Nov 30, 21 @ 1:56 pm:

    ==Pandemic every year==

    The flu is not a pandemic every year. Maybe go back and use the Google to help you understand the concept of a pandemic.


  29. - Anon - Tuesday, Nov 30, 21 @ 2:09 pm:

    Here’s a question: why haven’t the Governor and GA passed a law to exempt vaccination from collective bargaining laws and making it an exclusively management right? It seems to me that if they want to bolster their authority to impose this public health measure, they would undercut the union’s argument first.


  30. - Anyone Remember - Tuesday, Nov 30, 21 @ 2:23 pm:

    === “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). ===

    Next they’ll make the same argument about Marbury v. Madison.


  31. - SWIL_Voter - Tuesday, Nov 30, 21 @ 2:32 pm:

    “ Next they’ll make the same argument about Marbury v. Madison.”

    Don’t threaten me with a good time


  32. - Ducky LaMoore - Tuesday, Nov 30, 21 @ 2:35 pm:

    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. […]

    You are not allowed to create and/or maintain a nuisance no matter how small in stature that it may be.


  33. - Pot calling kettle - Tuesday, Nov 30, 21 @ 2:39 pm:

    ==the right to abort is a fundamental right that cannot be infringed==

    That is not the case in Illinois or anywhere else. Setting up a “straw man” argument won’t get you very far on this blog.

    It would seem to me that dictating what can happen in a person’s womb before a fetus is viable (let alone before someone even knows they are pregnant) is far more intrusive than requiring a mask, a weekly test, or even a vaccine. If you are “pro-life,” masking, testing, and vaccine mandates should be a given.


  34. - Grandson of Man - Tuesday, Nov 30, 21 @ 2:49 pm:

    Other people’s rights are tough loads to handle for the entitled. If our ancestors acted that entitled and in denial over deadly enemies, thinking they’re a hoax, attacking and distrusting their own leaders and brain trust as “deep state” and so on, as we are seeing with COVID, we wouldn’t be here today.


  35. - Oswego Willy - Tuesday, Nov 30, 21 @ 2:50 pm:

    ===If you are “pro-life,” masking, testing, and vaccine mandates should be a given.===

    It is the oddest of odd… pro-life, no vaxx, no maskers.

    There’s no duality to pro-life, that’s their mantra I was told


  36. - NonAFSCMEStateEmployeeFromChatham - Tuesday, Nov 30, 21 @ 3:20 pm:

    ==You don’t like state employees==

    I am a state employee–but one who isn’t an AFSCME member. And one who wants this pandemic to at least somewhat be mitigated (as COVID will never go away).


  37. - Future - Tuesday, Nov 30, 21 @ 3:32 pm:

    The big 9 are sending a message.

    WASHINGTON — The Supreme Court on Monday brushed aside an appeal from a group of Massachusetts health care workers who said their hospital’s Covid vaccine requirement violated their religious freedom or would present a risk to their health.

    Justice Stephen Breyer, who handles appeals from that part of the country, turned down the request without seeking a response from the hospital or referring the matter to the full court — signs that he believed the case lacked merit.

    The application for an emergency stay was filed by employees of Mass General Brigham who refused to be vaccinated and were fired or placed on unpaid leave. The workers sought religious or medical exemptions but were turned down. They later sued, arguing the hospital had violated federal laws prohibiting discrimination.


  38. - H-W - Tuesday, Nov 30, 21 @ 3:52 pm:

    === Is an article in “Nature npj Vaccines” sufficiently peer-reviewed to meet your criteria?===

    I am not impressed. I looked at NPJ (Nature Portfolio Journals), and it has many of the signatures/hallmarks of a paper mill. Predatory publishers often list several dozen editors (most professional journals only have a few). They also are a recent “publishing house” that publishes a few dozen journals on a few dozen topics, rather than representing expertise in one or two areas of knowledge and research.

    I get the impression NPJ is more equivalent to a vanity press for profit.


  39. - Oswego Willy - Tuesday, Nov 30, 21 @ 4:02 pm:

    The reality to “peer review”… published doesn’t mean vetted or peer reviewed.

    So, and I’m being not snarky, it’s still a bit confusing, is that what one might “say” is peer reviewed merely by being published, or where is that tradition peer review where one can say “there it is, obviously”

    So any help, I’d appreciate it.


  40. - Pot calling kettle - Tuesday, Nov 30, 21 @ 5:20 pm:

    OW: “Peer-reviewed” means a paper has been reviewed by qualified peers in the field and found to meet the standards of the field. The abstract of this paper is pretty clear https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4975196/

    H-W: I don’t think anyone is trying to impress you. While such vanity press publications certainly exist, Nature is not one of them. The npj series is described here: https://www.nature.com/nature-portfolio/about/npj-series If any publisher knows how the peer-review process works and how to implement it properly, Nature is such a publisher. I suspect your skepticism has more to do with results that don’t conform to your view.


  41. - Oswego Willy - Tuesday, Nov 30, 21 @ 5:47 pm:

    === “Peer-reviewed” means===

    Appreciate that. I do. Thank you.

    My point was in some instances it appears “peer review” is either dismissed when “published” and becoming generic to the flippant looking for cites.

    All good. Appreciate that for myself and hopefully for others too.

    I do think the courts are looking at the law instead of science which is the correct take as those looking for loopholes want a “science” or “health choice” take instead of looking out for society.

    As well said as it is, the strength is the truth it is… it’s not all about you”. Lessons everywhere


  42. - ArchPundit - Tuesday, Nov 30, 21 @ 6:16 pm:

    Courts should defer to the legislature in terms of what constitutes a public health emergency, which the legislature delegates to public health authorities. Where the courts likely would step in would be if there is clear evidence that there is no emergency according to how the law defines it. Covid-19 meets the definition as the communicable disease that is an emergency as it has the highest death total of any communicable disease in the history of the United States. The 1917-8 flu had a higher rate of death, but lower totals.

    That said, death isn’t the only issue in public health emergencies such as those declared for polio back before the 1960s.


  43. - ArchPundit - Tuesday, Nov 30, 21 @ 6:17 pm:

    Also, having been in the ICU from Tuesday through Sunday with my wife who had open heart surgery, get your shots. Health care workers are amazing for what they have had to put up with and they don’t deserve your nonsense.


  44. - Yellow Dog Democrat - Tuesday, Nov 30, 21 @ 6:47 pm:

    “The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.” - On Liberty, John Stuart Mill


  45. - none - Tuesday, Nov 30, 21 @ 8:36 pm:

    This bears repeating: “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”

    That’s it in a nutshell. I might have it printed on a t-shirt.

    and how does this argument hold up with abortions?


  46. - Oswego Willy - Tuesday, Nov 30, 21 @ 8:44 pm:

    === and how does this argument hold up with abortions?===

    Are pregnancies a global deadly pandemic?


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