Health Care Workers, Others Sue Oregon In Federal Court To Halt Vaccine Mandate

Gov. Kate Brown holds covid-19 mask Photo by Pamplin Media Group.jpg

Gov. Kate Brown holds a mask with Oregon's state crest pictured on it as she sits behind a desk.

Forty-two Oregonians, including a medical resident at Oregon Health & Science University, nurses and other health care workers, sued Gov. Kate Brown and Oregon Health Authority Director Patrick Allen over the state’s COVID-19 vaccine mandate. 

The lawsuit was filed Tuesday in U.S. District Court in Portland. It represents another example of the resistance to vaccines among some Oregon health care workers, state employees and public school staff. The plaintiffs in this lawsuit come from all these groups.

In an eye-opening assertion, the lawsuit alleges similarities between the state mandate to the sadistic and criminal medical experiments carried out by the Nazis.

The case comes as a deadline is bearing down. Oct. 18 is the state-set deadline for health care workers to be fully vaccinated or secure an exemption from their employer.

If they can’t get an exemption, they can be fired for failing to get vaccinated. The state put the mandate in place for health care workers, state government employees and public school workers. 

It’s up to private employers such as hospitals or clinics to make the call on whether to terminate non-compliant employees and determine how to work with them, such as allowing them to use vacation time and go on leave until they are compliant. Licensed medical workers like doctors and nurses can also face regulatory action after Oct. 18 from state licensing boards if a complaint is filed and they aren’t vaccinated.

The lawsuit seeks a ruling that finds the vaccine mandate is unconstitutional and violates the plaintiffs’ right to due process through the Fourteenth Amendment rights, saying they have the “right not be coerced into taking experimental medication.”

The Fourteenth Amendment protects citizens from being deprived of life or liberty without due process of law.

The federal Food and Drug Administration has approved through its emergency use authorization all three vaccines: Pfizer, Moderna and Johnson & Johnson. The Pfizer vaccine received full approval in August.

The lawsuit seeks a temporary restraining order that stops the state from enforcing the mandate while the case is pending and a permanent injunction that halts the mandate. 

A spokesman for the Oregon Health Authority declined to comment because it's pending litigation. The governor’s office didn’t respond late Wednesday to a request for comment. The state has not yet filed a response in court.

Objectors Include Nurses In Springfield, Portland

Affidavits from the plaintiffs offer a look at those who continue to resist the vaccines, even in the health care sector. 

For example, Christina Carmichael, an intensive care nurse at McKenzie-Willamette Medical Center in Springfield, said she was told to provide proof of vaccination or be taken off the schedule.

“My employer is not allowing exceptions to continue employment,” Carmichael said in court filings. “I was advised to find another career or comply.”

Elisabeth Coates, a registered nurse at Randall Children’s Hospital in Portland, part of the Legacy Health System, is another example. Coates wrote that she sought a religious exemption but was denied. 

Like the other plaintiffs, Coates didn’t spell out the details of the religious exemption she sought.

“Unless the vaccine mandate is overturned, I will likely lose my job and be unable to find employment in my profession,” Coates wrote.

Dr. Jazmin Graff, a second-year resident in anesthesiology and critical care medicine at Oregon Health & Science University, is another. Graff sought a religious exemption unsuccessfully and will be unable to complete residency training, the affidavit states.

Another physician, Dr. Mary Gabriele, stated that she has a small practice in Cottage Grove in South Lane County and a medical contractor she works for approved her religious exemption. However, Gabriele wrote she is worried about her future ability to gain employment if the contractor’s policies change or she needs to look elsewhere for work.

The case also sheds light on another area of the health care industry: physician admitting practices. 

Dr. Melanie Crites-Bachert, a doctor of osteopathic medicine, has a private practice in Gresham. In an affidavit, she wrote that because she refused to get vaccinated, her privileges at Legacy Health System were terminated as of Oct. 1. Legacy’s Mount Hood hospital was her primary hospital of practice for 10 years, she wrote.

It’s forced her to cancel surgeries, Crites-Bachert wrote, adding that one patient and her family posted negative comments about her on her business social media account.

“This has negatively affected my reputation, practice and livelihood,” Crites-Bachert wrote.

Others come from throughout the state: a registered nurse at St. Charles Medical Center in Bend; a pharmacist in Hood River; a hospice nurse in Florence and a dental hygienist in Portland are among them.

Some Plaintiffs Use Aliases

Several providers used only an alias without their name, an unusual move for a court case and one that underscores the sensitivity of the issue. They include a “Dr. F,” who is said to own a medical clinic, a Dr. C., who also owns a medical clinic and a “Ms. G,” a registered nurse at OHSU.

The lawsuit seeks to allow them to go forward with an alias because their identification would expose them to the “cultural and legal assault” underway against those who refuse the vaccines.

The lawsuit attempts to draw a legal connection between vaccine mandates in Oregon and the war crimes of Nazis who conducted medical experiments during the Holocaust.

Referencing the Nuremberg war crimes trials of Nazis, the lawsuit says: “Among the charges against doctors at Nuremberg was the nonconsensual testing of drugs for immunization against malaria, epidemic jaundice, typhus, smallpox, and cholera. Could those doctors have had a rationale that would have excused coercing human beings to take experimental medication? The answer is self-evidently: no. Could the State of Oregon have a rationale that excuses coercing human beings to take an experimental medication? The answer is still: no. On what legal basis could the government have a valid excuse for coercing human beings into taking experimental medication in 2021?”

To be sure, the lawsuit doesn’t compare the mandate directly to the Holocaust.

“Obviously, this is not the Holocaust and Plaintiffs do not contend that today’s events are comparable to the Holocaust. But the legal question of whether any justification may even be considered for coercing human beings into taking experimental medication is the same.”

Vaccine hesitant people are in the minority, especially in the medical community. At many Oregon hospitals and other medical facilities, the great majority of workers are immunized. Although the vaccines are new, they have been authorized by the federal Food & Drug Administration and tested on thousands of people before they went out to the general public.  Overall, about 82% of Oregon health care workers are vaccinated, though the level varies among individual professions and from facility to facility.

Lawsuits so far have done little to stop mandates. A judge last week in Jefferson County Circuit Court rejected a request in a separate case filed by Oregon State Police troopers to stop the mandate. 

State officials have also taken steps to be flexible in some areas. For example, the governor agreed to allow state government employees represented by the SEIU Local 503 and AFSCME Council 75 to get their second vaccine dose by Nov. 30 if they get their first dose by Oct. 18, according to a report published Wednesday in Oregon Public Broadcasting. Between those agreements and a provision to allow the same for other nonunion state workers, most state government employees will get more time to comply. 

You can reach Ben Botkin at [email protected] or via Twitter @BenBotkin1.

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