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A Health Care Litigator on Why Courts Back Mandates for the EUA Covid Shots

Lawyer Richard Jaffe explains the reasons why courts are not blocking mandates for these experimental products. Some things have changed since July, when this article was written, but "how courts think" has not. See also the comments under the original article (https://rickjaffeesq.com/2021/07/17/so-the-uc-covid-vaccine-mandate-came-out-now-what/).


So the UC covid vaccine mandate came out, now what? (revised)


July 17, 2021 Richard Jaffe

Okay, the UC vaccine COVID mandate came out. One commenter put it succinctly: “get vaccinated, get an exemption , or get fired.” That says it all.


Anyone who has been reading my posts knows that I been saying this for weeks and months, that the mandate is going to take effect under emergency use status. It just does not make any sense any other way, i.e. to wait until full approval/licensure.


What is surprising to me is that there are people who are surprised and shocked that this happened. Really? comments to some prior posts had questioned whether we were (then) still in the pandemic. The answer to that is clearer now than it was a month or two ago, and I fear it will become even clearer in the next 60 days.


You can’t expect public health officials to do nothing as the cases ramp up again (except if you live in South Dakota(or North, I forget which ) where the Governor’s operating procedure is to mandate nothing. So, if you feel that strongly about all these issues, that is the place for you. But if you continue to live in California, you can expect the mask requirements to continue, as well as continued pressure on people to get vaccinated, and that would include school children if or once the vaccines are EUA approved for kids, but that will be another battle, I assume, if the EUA based mandate comes.


Will the UC mandated be challenged in Court?


I do not have any firsthand information about that, but secondhand, I have heard that there will be at least two lawsuits. One lawsuit, by the state chapter of a national organization involved in the vaccine (and other) issues. I hear it will be a general lawsuit against the mandate. I heard that a lawyer who was involved in some of the public restaurant restriction cases is involved. The other lawsuit I heard about is a more narrow one and when I think that actually might have a chance, but that only is challenging the mandate for people who have already had the disease.

That is what I have heard anyway, and I would expect the lawsuits to be filed next week, as I believe they have been in the works for some time, but that is just my guess.


What are the odds of success and what you should you do if you work at the UC system and haven’t had COVID?


Although none of you agree with the law, the law is clear that mandatory vaccination is constitutional, starting with Jacobson of course but continuing on, with essentially every single case upholding mandatory vaccination laws. Lower courts are obligated to follow precedent of higher courts, and the precedent, including the two state appellate court decisions on the SB 277 cases (Brown and Love) will be relied upon in these COVID challenges, as will the San Diego federal district court decision upholding SB 277.


Well what about the fact that these vaccines are all “experimental”, doesn’t that matter? How can the government force me to take an experimental product? Does not that violate my rights of informed consent?


Arguably technically, maybe the issue of compelling an EUA product has not been specifically addressed by the courts. But I am aware of at least two cases where the issue was raised, and in both cases, the judges failed to issue preliminary injunctions despite the asserted experimental nature of the vaccine (Judge Lynn Hughes of Houston Federal District Court) and a mask case in New York back in the winter). At least one if not both of the impending UC lawsuits will raise these issues.


Frankly, I am sceptical about these arguments for two basic reasons. First, vaccine mandates are matters of state, not federal law. It is not clear to me constitutionally why a state can not mandate a product which does not have full federal government approval. Ultimately I suspect the courts will say that EUA approval is approval enough in a pandemic.

Second, I think people asserting the argument are misappling the experimental term, or that’s how I think the courts will look at it. (if they were to specifically address the issue and they might not).


I have worked on the issue of access to “experimental” (and the technical term of art in FDA speak is “investigational”) treatments and granting access to say drugs which have passed phase 1 clinical trials (which trials are typically very small and range in numbers of dozens to a hundred or two) and for which the phase 1 data has not been reviewed by the FDA. But that is a universe far, far away from the COVID EUA approved vaccines, for which there were tens of thousand of test subjects in the initial studies, and now the vaccines have been given to what, over 300 million people.


In my view as an FDA lawyer, that is completely different, and while I understand the rhetorical value of calling the COVID vaccines “experimental”, I predict that the courts are not going to see it that way, if they even address the issue. And to that point, just because a party makes a specific argument, like EUA status, doesn’t mean judges are required to address it. Ducking the issue is something judges are very good at doing. So, it wouldn’t shock me if some of the judges hearing the UC cases fail to directly address the EUA status issue and deny the preliminary injunction motion on some other or some general grounds.

Aside from the fact that the law is against the challengers to the mandate, I think there are two other reasons why the district or Superior Court is not going to preliminarily enjoin the UC Covid mandate.


First, there is a religious exemption or actually an accommodation for everyone. I will take some credit for the religious accommodation for UC students. Some of you might recall the initial flu vaccine mandate only had a religious accommodation for employees. After we filed our lawsuit – a primary basis of which was an equal protection claim by students who did not have a religious accommodation – the UC changed its policy and offered a religious accommodation to students. That seems to be what they figured out they had to do in these cases to avoid an actually strong constitutional challenge. And in the Covid mandate, it looks like they have done just that.


Second, – and I caution that many of you won’t like hearing it – it looks like the vaccine is working and doing exactly what they said it was going to do, namely, prevent hospitalizations and deaths (though most of you will deny that is the case).


The simple of it seems to be that most of the hospitalizations now are in the unvaccinated, or so it is being reported (and I know, most of you don’t trust the mainstream media reporting). Hospitalizations and/or deaths almost exclusively in the unvaccinated,seems like a good indication that the vaccines are working. I can assure you that is exactly how the courts are going to see it. I have heard all the arguments and data points which are being used to deny what to judges will be the obvious fact that the vaccine seems to be working, and I can tell you that judges will be extremely reluctant to accept that data for a variety of reasons which I won’t get into here.


A month or two ago, maybe it was not as clear that the vaccinated seem to be escaping the hospitals and death, but now it is becoming clearer. I predict that in a few weeks or a month when the courts hear these preliminary injunction motions, it will be clearer still.


In short, it certainly appears that we are entering a public health pandemic crises of the unvaccinated, and as that view continues to take hold (and despite the fact that most of you will continue to deny it), the legal and social media pressure will increase against those who challenge the existence or character of the crises. At some point, FB and the rest are going to finish off the new top 12 list which has just started circulating in the media, the clearer it becomes that this is an unvaccinated pandemic and especially, if the hospitals start filling up and we start seeing big surges in the death rates.


It is inconceivable to me that any judge is going to stop a mandate for a vaccine during a new outbreak of a pandemic where the vaccine appears to be working and the public health crises appears to be in the unvaccinsate. In such circumstances, I believe all the cries of health freedom fighters for informed consent, my body my choice, vaccine manufacturers have no liability, Fauci is the devil, etc., well, I think all of those cries are going to fall on deaf ears with the judiciary. If you cannot see that, then respectfully, you live in a different universe, or where logic and common sense have different rules.


Something else for you UC employees to consider before you take that principled stand and draw the line in the sand


This is based on information I hear about the work situation at the UC. Many of you have been working remotely and might wish to continue to do so. I have heard indirectly that workers are being strongly encouraged to come back to work at their offices, because work efficiency is down significantly due to working at home.


In general, it is very hard to fire employees at the UC because of unions, collective bargaining and in general what I consider to be the extreme pro-worker bias or fear of workers that UC management has. This Covid mandate presents the perfect excuse for management to fire UC employees without suffering any repercussions from unions or from EEOC-related issues. So before you take that principled stand, you might think long and hard about the fact you might be playing into the hands of management who might be trying to get rid of you and people like you, and now have the perfect opportunity to do so.


In short


The short of it is that I do not think that any judge is going to stop the UC general mandate from going into effect. You will certainly feel good when you hear the news that the lawsuit(s) has (have) been filed, and you will certainly cheer those who filed and support these actions, as you should.


But let me talk now directly to the UC employees and their families, and not to the rest of the opponents to vaccine mandates, because it is you who have skin in the game. My advice to you is that you are going to need a Plan B effective as of the day the mandate goes into effect. And you won’t like it, but Plan B is either get vaccinated, get an exemption, prepare to be fired (or move to South (or North) Dakota and make your own decisions about everything)). Don’t put off thinking about it or working on Plan B until after the judges in these cases issue their rulings.


I wish I had a different opinion, but I don’t. This is how I see it playing out. Someone has to tell you straight up and not just throw back at you the pro personal freedom health mantras and fight cheers.


Rick Jaffe, Esq.


Richard Jaffe "is admitted to practice in California, Texas, and New York, but works on litigation and criminal and administrative investigations involving significant health care issues throughout the country." https://rickjaffeesq.com/






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