Now in this Winter of Covid discontent, made inglorious by the silliness and selfishness of anti-vaxxers, we warm ourselves with a look back at how a court dismantled the absurd arguments challenging vaccine mandates. Sure, we have written about similar cases a lot lately – here for example. “Yet once more, O ye laurels, and once more.”
It occurs to us that over the past year, courts have been islands of rationality in a sea of conspiracy theories and know-nothingism. In court one cannot simply bloviate. Assertions get tested and arguments analyzed. We’re proud to be in a profession that smacks down BS.
There was a lot of BS to smack down in Bauer v. Summey, 2021 U.S. Dist. LEXIS 203204 (D. S.C. Oct. 21, 2021). South Carolina and various political subdivisions had enacted vaccine mandates for their employees. The mandates allowed for exceptions for religious beliefs and medical conditions.
Some employees challenged those mandates under the federal and South Carolina constitutions and sought a preliminary injunction. What were the constitutional theories? Pretty much all of them. The plaintiffs invoked procedural due process (a clunky, redundant phrase made necessary by the existence of the other sort), substantive due process (an absurd concept that makes us question what we said earlier about courts being rational), equal protection (which originally meant that Southern states had to prosecute crimes perpetrated against their black citizens), and various and sundry other theories. The Bauer court expressed exasperation at the complaint’s incoherence, likening it to spaghetti tossed against a wall.
The court had to peel off that spaghetti and look at it to assess the plaintiffs’ probability of success. Guess what? There was no probability of success.
The procedural due process (aaargh) claim flunked because a plaintiff must show a property interest in the deprivation. The alleged deprivation here was loss of a government job. But South Carolina is an at-will employment state. The plaintiffs had no property interest in their jobs. Moreover, the employee vaccine mandates were legislative enactments of rules of general applicability. All due process had been rendered.
The plaintiffs’ substantive due process claims were predicated on constitutionally protected liberty interests in their “bodily integrity, privacy, and constitutional protections just to name a few.” (Judges must enjoy arguments pockmarked with vagueness and etceteras.) The Bauer court reasoned that for substantive due process to apply, the government action must be “so arbitrary and irrational, so unjustified by any circumstance or governmental interest, as to be literally incapable of avoidance by any pre-deprivation procedural protection or of adequate rectification by any post-deprivation state remedies.” Fatal arbitrariness is addressed as a threshold question – namely, whether the challenged conduct is “so egregious, so outrageous, that it may fairly be said to shock the conscience.” The Bauer court held that “implementation of a vaccine mandate to prevent the spread of a deadly virus among the defendant governmental entities’ employees and the citizens they serve does not rise to the level of conscience-shocking.” Moreover, the SCOTUS Jacobson case long, long ago (1905) established that there is no “fundamental right to refuse vaccination.”
Modern equal protection analysis examines the government’s unequal treatment of people. If the people singled out are in a “suspect class” (e.g., a racial classification) the governmental rule gets swept away unless it was narrowly tailored to serve a compelling state interest. The plaintiffs in Bauer complained that the vaccine mandates treated the vaccinated differently from the unvaccinated. True. And traffic laws treat speeders differently from slow-pokes. There was clearly no suspect classification at work here. That means that the vaccine mandate would be tested for a rational basis. Given an August 2021 CDC report that the unvaccinated have a 6.1 times greater risk of testing positive for Covid-19, the rationality of the vaccine mandate was obvious.
The Bauer plaintiffs also claimed that the mandates violated their First Amendment speech rights, but the mandates did not restrict speech in any way. To try to transform the conduct of refusing vaccination into speech is ridiculous. By that reasoning, assassination constitutes political speech. As the Bauer court observed, “Plaintiffs do not articulate the precise idea or statement that plaintiffs wish to express by virtue of their vaccination opposition and refusal.” We’ll give it a try: ‘nobody’s gonna tell me what to do, and the experts cannot be trusted.’ Sheer know-nothingism In any event, the court held that the plaintiffs’ “right to express themselves by refusing the Covid-19 vaccine is outweighed by the government’s interest in protecting their employees and communities from a deadly infectious disease and providing efficient and effective services to the public.”
The plaintiffs’ claims under South Carolina law were equally bereft of merit. We will not recapitulate the court’s slog through half-baked, garbled legal theories.
So much for probability of success. But even if such existed, the plaintiffs could not satisfy another requirement for a preliminary injunction: irreparable harm. The fact is that one can seek legal damages for loss of a job. Those are called wrongful discharge cases, and they are not exactly rare.
The final factor courts look to in deciding whether to issue a preliminary injunction is the balance of equities. That was easy here. “While plaintiffs may remain unvaccinated at their own risk, the balance of equities and public interest do not require defendants to allow plaintiffs to spread that risk in their workplace and, by extension, into the communities they serve.” Interestingly, the plaintiffs attempted to support their position by pointing to a decline in the rate of Covid-19 without vaccine mandates. Hmmm. When was that?
Even in a case in a red state in front of a Republican appointed judge, the plaintiffs’ anti-vaccine claims never had a chance. Once again, the judiciary rejected cant and nonsense. Fools might think they are done with Covid, but Covid isn’t done with them – or the rest of us.
Meanwhile, to borrow from one of our favorite holiday movies, Merry Christmas, you filthy animals.
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How Stupid are Legal Arguments Challenging Employee Vaccine Mandates? Very, Very Stupid - Lexology
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