In response to the COVID-19 pandemic, pharmaceutical companies like Pfizer worked diligently to develop safe and effective vaccines. Following the FDA’s approval of these vaccines, many state governments and private employers—including those in the educational and medical fields—implemented policies requiring certain individuals obtain them. Some individuals subject to these policies have been challenging them in court ever since under a variety of constitutional and statutory arguments, largely without success. These cases typically alleged that government mandates violated the right to bodily integrity under the Fourteenth Amendment and that private employer mandates violated laws that prohibit discrimination based on disability and/or religious beliefs.

In August 2023, a new crop of cases began appearing in federal courts, this time challenging public or private healthcare employer mandates under the Fourteenth Amendment’s due process and equal protection clauses, certain federal statutes, and numerous other purported “laws.” The thrust of these cases is that COVID vaccines were necessarily “investigational” and, therefore, vaccine mandates subjected individuals to “medical research” without their informed consent. The lawsuits appear to be driven by self-described “innovator, researcher, strategist, and ideation consultant” Brian Ward and a crowdfunded effort calling itself the “Strategic Medical Liberty Initiative.” Since the first of these lawsuits was filed in Oregon federal court in August 2023, similar cases have been filed in federal courts in Washington, Colorado, Texas, California, and Pennsylvania, all with plaintiffs alleging their employment ended as result of their non-compliance with their employers’ vaccine mandates.

While these cases are only in their early stages, defendants invariably filed motions to dismiss the complaints arguing that plaintiffs’ federal law claims should fail for any number of reasons, ranging from sovereign immunity for government entities and qualified immunity for government actors to fundamental deficiencies like statute of limitations bars and the lack of private rights of action under most or all of the statutes referenced. Perhaps the central argument so far in these motions to dismiss has attacked the very premise of the constitutional (and some of the statutory) claims: there is no protected right at issue here, unvaccinated individuals are not a protected class, and the various federal, state, and even international laws cited in the complaints afford plaintiffs no relief.

As of the date of this article, only one court has ruled on these arguments, and it straightforwardly agreed with the defense. On December 21, 2023, Judge Robert Bryan of the federal court in Tacoma, Wash., granted Wash. Governor Jay Inslee’s Motion to Dismiss. In Curtis v. Inslee, more than 80 plaintiffs filed suit against Gov. Inslee (in his official and personal capacity) and their former employer, PeaceHealth, a not-for-profit healthcare system, generally bringing claims of improper termination premised on the refusal to be vaccinated against COVID despite the employer mandate and various violations of the Fourteenth Amendment. The court found that, despite plaintiffs’ contention, the FDA fully approved the Pfizer-BioNTech vaccine well before both the Governor’s and PeaceHealth’s mandates required the individual plaintiffs to be vaccinated.

With respect to the Fourteenth Amendment claims, the court found that plaintiffs were not part of a “suspect class” that would justify heightened protections under the Equal Protection Clause and that the vaccine mandate did not implicate a fundamental right protected by the Due Process Clause, which meant Washington’s vaccine mandate was subject only to rational basis review (i.e., it needed only to be rationally related to a legitimate government interest). And on the face of the complaint alone, the mandate met the rational basis standard. Judge Bryan quoted the 2022 Supreme Court decision Biden v. Missouri, 595 U.S. 87 (2022), to reason that there was a legitimate interest in requiring vaccinations of healthcare workers during the COVID pandemic to reduce employee-to-patient transmission, and that Washington’s mandate was rationally related to that interest. Judge Bryan also agreed with Gov. Inslee that no private right of action existed for the numerous federal laws or other authorities asserted by plaintiffs, including 21 U.S.C. § 360bbb-3, 45 C.F.R. pt. 46, a decades-old report called the “Belmont Report,” and even the International Covenant on Civil and Political Rights. Finally, the court found no relief available to plaintiffs under several other federal laws, that Gov. Inslee was entitled to qualified immunity from suit on all federal claims, and that plaintiffs had failed to state various state law claims sufficiently. As a result, the court dismissed all claims against Gov. Inslee.

Judge Bryan’s opinion presents a rough start for the “Initiative” behind the numerous cases all making these same arguments that may be difficult to overcome. Courts across the country routinely look to other jurisdictions for guidance on similar, and especially on identical, issues, and precedent can be a powerful tool for litigants on either side of the arguments. One thing remains clear – employer mandates were and are intended to protect staff, patients, and communities during one of the most challenging times in medical history and the fate of many of those mandates will be decided by federal courts in numerous states in the coming months.

For more questions about these types of claims, please contact James Spung, Tessa F. Carberry, or another member of our Healthcare Litigation team.