By Cara Bayles

Law360 (July 15, 2021, 12:04 PM EDT) -- At a court hearing in Houston last month, an attorney for 116 health care workers argued that Houston Methodist Hospital was illegally coercing its employees by mandating they get vaccinated against COVID-19 as a condition of employment.

"If you say to someone, 'You're fired if you don't' ... that's coercion or at the very least undue influence," Jared Woodfill of Woodfill Law Firm PC told the court.

U.S. District Judge Lynn Hughes, who has served on the federal bench since the Ronald Reagan administration, was unmoved by that argument.

"Counsel," he said, "no."

Judge Hughes dismissed the suit, criticizing the "press-release style of the complaint" and saying that limits on workers' behavior is "part of the bargain" of employment. The order is considered the first dispositive ruling in a lawsuit over vaccination mandates.

The hospital workers have appealed to the Fifth Circuit, and they aren't the only ones who say they're aggrieved by a policy mandating vaccinations.

Three students sued California State University's Chico campus for requiring jabs for people who were already sick with COVID-19, offering up a laundry list of potential vaccine side effects.

Eight Indiana University students compared that school's on-campus vaccination requirement to the Tuskegee experiment, an unethical federal study in which patients, all Black men, were not told they had syphilis and did not receive treatment they were promised. Both the Houston hospital workers and public school teachers in Los Angeles alleged that their employers' mandates violate the Nuremberg Code, developed in reaction to nonconsensual and torturous medical experiments conducted on concentration camp prisoners in Nazi Germany.

"In a sense this is not primarily a legal question. It's become a political question," said George Annas, law professor and director of the Center for Health Law, Ethics & Human Rights at Boston University. "And it should be a public health question. It's a tragedy that it's not."

Suits resisting COVID-19 vaccinations are, like the vaccines themselves, a relatively new phenomenon. But the litigation landscape is already rapidly changing. Nineteen states have passed laws or executive orders limiting the ability to require proof of vaccination.

While there's a healthy precedent of upholding immunization requirements, the vaccines' emergency use status could complicate matters. And with the current lineup of U.S. Supreme Court justices showing a preference for individual liberties over public health, some legal experts say there could be a dramatic turn in case law, should litigation reach the high court.

'The Common Good'

The Rev. Henning Jacobson might have been the original anti-vaxxer.

It was 1901, and in response to a smallpox outbreak, the city of Cambridge, Massachusetts, was requiring all residents to get vaccinated or pay a $5 fine. Jacobson refused to do either, saying he feared an adverse reaction to the shot more than the disease itself. A criminal complaint was filed against him.

By 1905, his case reached the U.S. Supreme Court, which dismissed Jacobson's argument that the state's immunization mandate flouted the preamble to the constitution.

Justice John Marshall Harlan, writing for the majority, was not convinced by Jacobson's reasoning. Justice Harlan said that a state could exert "police power" to protect public health and safety, adding that even the Constitution allows for "manifold restraints to which every person is necessarily subject for the common good."

In its 1922 Zucht v. King opinion, the Supreme Court found that San Antonio public schools could prohibit children who didn't present a certification of smallpox vaccination on similar grounds, and that logic for balancing personal liberties against public health determined the law for a century.

Those cases protected public entities mandating vaccines, said University of Denver law professor Govind Persad. Most work in the U.S. is at-will, which means private employers have plenty of leeway when it comes to hiring or firing their workers.

"You can not hire somebody for whatever reason, so long as your reason isn't unlawfully discriminatory," he said. "For private actors, the default is you can have whatever requirement for work you like."

Legally recognized carve-outs to that default vary by state law. All 50 states allow people to opt out of vaccine requirements for medical reasons, like a weakened immune system or a vaccine allergy. Forty-four states allow objectors to opt out of immunization for religious reasons, and 15 of those states also provide for "personal belief" exemptions, according to data compiled by the National Conference of State Legislators.

When New York and California nixed religious exemptions in favor of stricter vaccination rules, courts dismissed lawsuits over the change, citing Jacobson . After the California legislature mandated children be immunized against 10 childhood diseases ranging from measles to polio, legal challenges to the elimination of the "personal belief" exemption went to court and failed.

"Courts will look at the mandate and say, First Amendment case law says we're not going to strictly scrutinize laws that are neutral and generally applicable, and these laws requiring vaccination are neutral," said Jennifer Piatt, a research scholar at the Center for Public Health Law and Policy at Arizona State University and senior attorney at the Network for Public Health Law.

Central to the new round of litigation over COVID-19 immunizations is the fact that all three of the vaccines are being administered under emergency use authorization, or EUA.

There isn't much case law for mandating drugs and vaccines that, like the COVID-19 vaccines, have not yet received full Food and Drug Administration approval.

Opponents of the vaccines have pointed to a 2003 D.C. Circuit decision enjoining the mandate that military service members get immunized against anthrax with a vaccine that had not gotten full approval.

Several months after that injunction, Congress passed the Project Bioshield Act of 2004, which funneled billions of dollars to preparing for a bioterror attack, and amended the federal Food, Drug and Cosmetic Act to include the emergency use authorization, which is now being used to make the formally unapproved COVID-19 vaccine widely available.

Emergency Use

The FDCA allows for the emergency authorization of a drug or vaccine before its full approval but requires that people be informed of "significant known and potential benefits and risks," as well as "the option to accept or refuse administration of the product."

Some plaintiffs have used this language to argue that the option to refuse the shot extends to employer mandates. In the Houston hospital case, Judge Hughes said that reading misconstrued the statute, which outlines the duties of the secretary of health and human services.

"It neither expands nor restricts the responsibilities of private employers," he wrote. "It does not confer a private opportunity to sue the government, worker or employer."

Nor did the argument that a mandate by a private employer is "coercion" stand up. The argument is unlikely to withstand scrutiny in other litigation either, Annas said.

"Nobody is holding anybody down and vaccinating them against their will. The worst that could happen — and it's bad — is you could lose your job or you could not be able to go to school," he told Law360.

Some lawsuits have argued that because the vaccines were expedited by the Trump administration's Operation Warp Speed initiative, and hadn't gone through the yearslong development and trial process, the shots developed by Moderna Inc., Pfizer Inc. and Johnson & Johnson were still "experimental."

"The timeline set by OWS telescoped what would normally take years of research into a matter of months," the Los Angeles schoolteachers wrote in their amended complaint. "Plaintiffs have a universally recognized, fundamental right to be free from human medical experimentation."

That argument failed to persuade Judge Hughes in the Houston hospital workers case, and it could grow less persuasive soon, according to Persad, because Pfizer and Moderna put in their applications for full FDA approval in May and June, respectively. He said he thinks they'll receive full approval soon.

"At that point, they would be no different from if someone wanted to challenge the requirement, say in a hospital or school or a college, that you be vaccinated for measles or meningitis or any vaccine for any other condition," he said. "Once you get to this point, it's even less likely these challenges would ultimately succeed."

A Potential Sea Change

Presenting a bill that would bar vaccination passports in Arkansas, one state senator claimed the concept of disclosing immunization status was "frankly un-American." Georgia Gov. Brian Kemp said that "vaccination is a personal decision between each citizen and a medical professional" when he issued an executive order in May preventing passports and barring public employers from mandating vaccination or additional safety measures from unvaccinated workers.

"Your health care decisions are private," argued Montana state Rep. Jennifer Carlson, who sponsored a bill that made it illegal for a government agency to require vaccination as a condition of employment. "They're protected by the constitution of the state of Montana."

In 19 states, laws or executive orders have limited COVID-19 vaccination requirements, according to data compiled by Ballotpedia.

Those laws mostly affect customers and public employees, but more bills that are pending in other states, including New Jersey, New York and North Carolina, target private employers who want to require vaccination for their workers, and pending bills in Indiana, Oregon and Pennsylvania would allow unvaccinated employees to sue.

That patchwork could determine which states become litigation hot spots, and could be the future of these lawsuits, Piatt said.

"This is an area of the law that is actually currently changing a lot," she said. "These state laws or these gubernatorial executive orders could be put out there as a way ... to say, 'We'll ban this, potentially because you're not sure the federal law actually bans it, potentially because you want to make sure that's the governing law in your state.'"

The Indiana University students initially included a claim under that state's new law barring local governments from requiring or issuing proof of vaccination. The students had said that in addition to requiring that they get the shot, the university required them to log proof of vaccination — a process that they said amounted to a vaccine passport.

The university countered that there was no private right of action under the new law, arguing that because of where it was incorporated in the Indiana Code, it could only be enforced by the Health Department, and the students agreed to drop that claim.

"I think it violates the law, we just can't sue under it," said Jim Bopp of the Bopp Law Firm PC, who represents the students. "Without a private cause of action, its teeth are very dull."

Local news reports indicate that the vaccine passport language was added to the bill just before it passed in April. It may be an example of legislators drafting bills for "performative reasons," leaving states with ambiguous statutes that use the unclear term "immunization passport," Persad said.

"If you have states that have these sloppily drafted or vague provisions, that attracts litigation because people are not certain what the provision amounts to and are trying to test the limits there," he said.

The remaining claim in the Indiana case is a due process violation, alleging the mandate violates students' basic rights to bodily autonomy. The Jacobson decision might end that argument, but Bopp said that case law is "antiquated," because "constitutional rights to bodily integrity and medical privacy weren't recognized in 1904."

He said he was confident he could challenge the case's applicability today, especially in light of recent Supreme Court rulings striking down coronavirus-related public health measures limiting religious gatherings.

"The court could correctly say that the reasoning [in Jacobson] has been supplanted by modern constitutional jurisprudence that established levels of scrutiny," Bopp said. "And the analysis that the court has used in very recent cases in these situations apply that modern constitutional jurisprudence."

Piatt also predicted a potential shift if cases challenging mandates make their way to the Supreme Court. They could lead to a blanket religious exemption requirement for public policy mandating vaccination, she said.

"That would be a sea change, but with this court, and with the decisions that we've seen, it's not altogether impossible," she said.

Some of these lawsuits may have already achieved their desired effect. The day after the Los Angeles teachers filed their complaint in May, the school district's human resources director sent out an amended notice clarifying that employees who didn't want to get immunized could instead opt to be regularly tested for COVID-19.

Many more employers may be watching the growing threat of litigation and feel reluctant to impose a mandate on their workers. For each employer or school, the question may be what is the path of least resistance.

"The last thing an employer wants is to go to court against their employees. That's a lose-lose proposition," Annas said.

But he added that companies and institutions also fear the liability that could arise if someone gets sick because they did not institute a mandate.

"It depends which way they think is going to be worse for them," he said.

--Additional reporting by Michelle Casady. Editing by Brian Baresch and Alyssa Miller.

Correction: This story originally misstated Jennifer Piatt's title at Arizona State University. The error has been corrected.

For a reprint of this article, please contact reprints@law360.com.