Case updates this week:

August 19: In Boysen v. PeaceHealth the U.S. District Court for the District of Oregon granted defendants’ motion to dismiss the complaint of a group of plaintiffs alleging “five variations of [civil rights] claims under 42 U.S.C. §1983.” The defendants included a private hospital provider, PeaceHealth, and several PeaceHealth executives in their individual capacities (“PeaceHealth”). Defendants also included the state of Oregon and several Oregon state officials (“State Defendants”). Plaintiffs were former PeaceHealth healthcare employees whom PeaceHealth terminated for refusing to vaccinate or request an exemption. 

On August 5, 2021, PeaceHealth issued a vaccine mandate to all its employees. The mandate provided for medical and religious exemptions. The state of Oregon followed on August 25 with a statewide vaccine mandate for all healthcare workers that also included medical and religious exemptions. The plaintiffs refused to become vaccinated or to apply for an exemption and PeaceHealth terminated their employment. 

To plead a civil rights violation under 42 U.S. §1983, plaintiffs must allege that the defendant violated a fundamental right belonging to the plaintiffs while acting under the color of law. Plaintiffs in several cases claim a fundamental right to refuse medical treatment. The Eleventh Amendment confers immunity on states. Lawsuits against state officials are barred as actions against the state. But state officials can be sued in their individual capacity and have only qualified immunity. To overcome this qualified immunity, plaintiffs must demonstrate that their fundamental right is one that a reasonable person would understand to be a well-established constitutional right, and that the state official violated it anyway. 

The District Court first determined the standard of review that applied to its decision. There are few paths for plaintiffs to show the need for a higher, more skeptical, standard of review of state action. One path is to claim membership in a suspect class. The court noted that the plaintiffs did not make the claim, as other plaintiffs in similar cases have, that vaccine status is a suspect class. Instead, the plaintiffs claimed a fundamental right to refuse to accept the COVID-19 vaccine without losing their jobs. 

To understand plaintiffs' claims it is necessary to connect a few dots. During the pandemic, the Food and Drug Administration (“FDA”) approved the distribution of the Pfizer-BioNTech vaccine under an Emergency Use Authorization (“EUA”), which allows the FDA to respond to a public health emergency by making medicines and biological products available on a fast track. The medicines and products still undergo rigorous safety testing and efficacy before they can be approved under an EUA. 

Plaintiffs allege that all drugs approved under an EUA are not “legally” approved drugs, so the Pfizer-BioNTech COVID-19 vaccine was not “legally a vaccine.” It was an “investigational medical treatment.” Because the vaccine is not a “vaccine” the plaintiffs have a fundamental right to refuse to take it. The plaintiffs relied on a Ninth Circuit opinion we covered in a previous update, Health Freedom Defense Fund, Inc. v. Carvalho, claiming that it required the District Court to deny Defendants’ motion to dismiss. In Health Freedom, the Ninth Circuit reversed the lower court’s dismissal of a complaint that alleged the COVID-19 vaccine was a medical treatment, not a vaccine, because it merely alleviated the symptoms infected individuals experienced. It did not prevent the spread of infection. The Ninth Circuit claimed to have the authority to look at only the materials submitted by the parties with their pleadings. The CDC statements the plaintiffs provided said only that the vaccine was safe and effective but did not say safe and effective for what. The Ninth Circuit said it was required to accept the plaintiffs’ allegations as true, even though they were based on known misinformation. This was sufficient to sustain the claim that the vaccine was a medical treatment that the plaintiffs had a right to refuse to accept. 

The plaintiffs in Boysen included CDC materials that did say the vaccine prevented the spread of disease, which distinguished it from Health Freedom. The court found that the “record flatly contradicts and renders implausible Plaintiffs theory that the Pfizer Vaccine was investigational only, and not really a vaccine. . . ,“ that “[p]laintiffs have not plausibly alleged that the Pfizer Vaccine is anything other than a vaccine,” and that unlike Health Freedom, that “[r]ational basis review under Jacobson applies.”

August 21: In Sturgill v. American Red Cross the Sixth Circuit Court of Appeals reversed the District Court of the Eastern District of Michigan’s order granting the American Red Cross’s (“Red Cross”) motion to dismiss. In Sturgill, plaintiff, Aimee Sturgill, alleged that her employer, the Red Cross, had failed to accommodate her religious beliefs and thereby violated Title VII’s protection against religious discrimination. Sturgill stated her concerns about the risk of harm to her body but explained those concerns in terms of her religious obligation to treat her body as a temple of God. The Red Cross engaged with Sturgill to clarify the grounds for her request for an exemption but eventually rejected it because the plaintiff had not specified a religious belief or practice connected to her objections, and because she had received vaccines in the past. 

The District Court for the Eastern District of Michigan agreed with the Defendant that Sturgill had not pleaded facts that would support her claim of religious discrimination. However, the Sixth Circuit disagreed and reversed. The Sixth Circuit held that a secular objection supported by religious belief is sufficient to state a plausible claim of religious discrimination.