CHD Weighs Appeal to Supreme Court in Rutgers Case After Court Rules Students Have No Right to Refuse COVID Shot

CHD Weighs Appeal to Supreme Court in Rutgers Case After Court Rules Students Have No Right to Refuse COVID Shot

By John-Michael Dumais

Rutgers University students for now will have no choice but to comply with the university’s COVID-19 vaccine mandate, after a federal appeals court ruled the university had a rational basis for the mandate as part of efforts to curb the pandemic on campus.

Rutgers University students for now will have no choice but to comply with the university’s COVID-19 vaccine mandate, a federal appeals court ruled.

The Feb. 15 decision stemmed from an appeal filed in January 2023 by Children’s Health Defense (CHD) and 13 students who sued Rutgers in August 2021, arguing the mandate violated the students’ “basic right to control our bodies.”

Julio C. Gomez, lead attorney for the plaintiffs, told The Defender that CHD and the students “are considering all options, including further appeal to the U.S. Supreme Court.”

In its ruling, the 3rd U.S. Circuit Court of Appeals said Rutgers had a rational basis for the mandate as part of efforts to curb the pandemic on campus.

“Rutgers had to decide in real time, on a changing landscape of executive pronouncements and medical judgments, how to sustain its educational mission while protecting the safety of its student body,” the court wrote.

According to the ruling, there is no “unqualified right to attend a university, let alone the university of one’s choice, without conditions.”

The court said the students failed “to offer any historical example to establish a ‘fundamental right’ to be free from a vaccine requirement at a public university.”

One of the three 3rd Circuit judges, Kent A. Jordan, agreed with most but not all of the majority ruling. He said Rutgers “failed to proffer a rational basis for distinguishing between students and University employees” in its initial decision to allow faculty and staff to remain unvaccinated in the fall of 2021 while compelling students to take the shots.

The school indicated “the stated concern from the very beginning was for ‘all persons at Rutgers University,’” not just students, he said.

Jordan also said the students should be able to amend their complaints as the circumstances around COVID-19 vaccine policies have shifted.

“[Rutgers] is not free to ignore the current state of the world, a point its own vaccine mandate policy expressly recognizes,” Jordan wrote. “I believe the Plaintiffs should be permitted to amend their complaint to test the rationality of leaving the mandate in place.”

Court refused ‘to accept the facts’ about COVID vaccines

According to Gomez, “The 3rd Circuit … refused to recognize that university students — or anyone for that matter — have a fundamental right to informed consent and to decide freely whether to accept or refuse an experimental medical product without coercion.”

Gomez said:

“The 3rd Circuit reached [its] conclusion by refusing to accept the facts in the Appellants’ amended complaint as true — namely, that COVID-19 vaccines do not stop infection, do not stop transmission, are unsafe, pose the risk of serious injury or death, and that Rutgers knew all of that to be true when it mandated these injections initially and now (as it continues to be one of the few universities that mandates these vaccines today).”

The court is required by law to accept the stated facts of the case as true at the appeal stage, Gomez said. If it had done so, the court would have had no choice but to “conclude that Rutgers has no legal authority to mandate these vaccines and that students have every right to say ‘no’ without any coercion,” he said.

The one bright spot Gomez found in the 3rd Circuit’s statement was that students who received religious exemptions have standing to sue based on secondary harms such as loss of access to student housing or campus or sports teams’ transportation services, or being forced to take regular COVID-19 tests. This reverses the lower court ruling on the issue.

CHD General Counsel Kim Mack Rosenberg told The Defender that Jordan’s dissenting opinion raised several important issues, including (quoting Jordan), “Rutgers’s about-face on education versus compulsion when it comes to vaccination” and “why the University is still mandating vaccination when the rest of the world has largely put the COVID-19 pandemic in the rearview mirror.”

“These are excellent points for consideration and should give all families of college-aged students pause,” Rosenberg said. “An educational institution — at any level — ruthlessly abandoning its students and its purported commitment to educating students is disturbing.”

Vaccine mandates falling more heavily on healthcare students

Lucia Sinatra, co-founder of No College Mandates, told The Defender she was deeply disappointed in the ruling.

“It’s just incredibly hard to believe that our justice system does not value informed consent and medical freedom as a fundamental human right — as a constitutional right,” she said.

Sixty-seven colleges are still mandating vaccines for the entire student population, according to Sinatra. “Many of these schools do not mandate for faculty and staff, such as Harvard and several others,” she said.

But many of these same colleges are now making it easier for students to file an exemption, while some — Rutgers and Santa Clara University, for example — “can make it extremely difficult,” she said.

Her biggest concern is for healthcare students who, even if they received exemptions as undergrad students, “are widely still required to take updated COVID-19 vaccines and flu shots in order to complete clinical rotations,” she said.

“They’re going through four years of education, only to get to clinical rotations and have that clinical facility and or the university say, ‘You can’t complete your training because you have not updated your vaccines,’” she said.

Sinatra spotlighted a class action lawsuit filed by a group of healthcare students against Rowan College in New Jersey for refusing to honor religious exemptions to vaccination.

“These kids have poured tens of thousands of dollars into a degree only to be told they needed to disenroll if they did not take updated vaccines,” she said.

“There’s a big black void” for students who are about to enter clinical rotations or other practicums, Sinatra said. “They’re not employees, but they’re not considered students either.”

Sinatra urged parents to contact their county board of supervisors, who have influence over programs operating in publicly funded facilities.

“Most county supervisors, even here in California, are shocked to find out that healthcare students are still being treated this way,” she said.

Sinatra voiced concerns about the prospects for an appeal in the Rutgers case, noting that a similar lawsuit against Indiana University was rejected by the U.S. Supreme Court in 2021.

Background of the case

The original lawsuit against Rutgers, filed on Aug. 16, 2021, also named as defendants its board of governors, Rutgers School of Biomedical and Health Sciences, Chancellor Brian L. Strom and President Jonathan Holloway.

CHD joined 18 students as plaintiffs, one of whom was a remote student who would never appear on campus.

Five students exited the case during the recent appeals phase “because they feared retaliation if their peers or teachers knew they were unvaccinated,” Gomez said.

The suit stated that in a free society:

“All people have the right to decide their own medical treatment — especially, to decide what to inject into their bodies. … And every person has the right to make that decision voluntarily, free from coercion by anyone, and to be fully informed of the benefits and especially the risks of that decision.”

The complaint also alleged a breach of contract because Rutgers had publicly stated in January 2021 that COVID-19 vaccines would not be required for school attendance.

The complaint noted that Rutgers was helping Pfizer, Moderna and Johnson & Johnson with their COVID-19 vaccine clinical trials and that the university stood to benefit financially from requiring vaccination.

CHD filed a motion for a temporary restraining order against Rutgers on Aug. 30, 2021, to prevent the university from coercing students into receiving the COVID-19 vaccine — including those attending classes remotely.

U.S. District Judge Zahid N. Quraishi on Sept. 27, 2021, denied CHD’s motion on the basis that the plaintiffs were unlikely to win their case on the merits or to be harmed if the restraining order disallowed.

In October 2022, Quraishi granted Rutgers’ motion to dismiss the case in part because Rutgers had updated its vaccination policy to include all in-person employees, thereby nullifying the students’ equal protection claims and its request for injunctive relief.

CHD immediately appealed the decision.

In November 2022, Rutgers was selected as a clinical trial site for Pfizer’s pediatric COVID-19 bivalent vaccine.

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