Oregon state government attorneys say COVID-19 vaccine requirements for state workers and school and health care professionals are not coercion or a violation of constitutional rights.
State attorneys make the argument in a 24-page response to a lawsuit filed in federal court by 42 individuals in the health care, education and state government sectors. The state attorneys filed the response Friday in federal district court in Portland.
The lawsuit, filed against Gov. Kate Brown and Oregon Health Authority Director Patrick Allen, seeks a temporary restraining order that halts the vaccine requirements for workers as the lawsuit progresses. The lawsuit is an effort to overturn state rules that require health care industry workers, state workers and public school employees to either get a COVID-19 vaccination or receive an employer-approved exemption on medical or religious grounds. The plaintiffs include medical doctors, registered nurses and other health care workers throughout Oregon.
The plaintiffs’ lawsuit says vaccine requirements for workers are “coercing human beings to take experimental medication” and violate the same legal principles of consent as did the Nazi medical experiments on victims during the Holocaust.
State government attorneys criticize the lawsuit for questioning the severity of the pandemic and the effectiveness of vaccines.
“They suggest the global pandemic is overblown, that the coronavirus is no more harmful than a bad flu, and that debunked ‘cures’ for COVID-19 actually work,” state government attorneys wrote in their response. “These are nothing more than unsupported Internet conspiracy theories.”
The plaintiffs argue vaccine requirements are unconstitutional and violate their right to due process guaranteed by the Fourteenth Amendment, saying they have the “right not be coerced into taking experimental medication.”
“COVID Vaccines Work”
In their response, state attorneys argue the lawsuit goes against case law that’s more than a century old. They also echo the arguments of the vast majority of medical experts who say COVID-19 vaccines are effective amid a national pandemic. Oregon leaders have made those same arguments during press conferences earlier this year.
“COVID-19 vaccines work,” the state says in its objection to the plaintiff’s request for a temporary restraining order. “They are safe and they are widely available. The vaccines are the most effective tool at our disposal to end this pandemic. Seventy percent of Oregonians over 18 are fully vaccinated, and yet hospitals all over the state are full of people who are not vaccinated.”
Legal spats over vaccine mandates have long been part of the American court landscape. State attorneys cite Jacobson v. Massachusetts, a 1905 case challenging a community-wide smallpox mandate that went to the U.S. Supreme Court. The Supreme Court rejected a challenge to the smallpox mandate, saying “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” Oregon state attorneys wrote in their filing.
They also note the scope of the lawsuit is centered around only employment — not a broader communitywide mandate like the 1905 case.
Under Oregon’s vaccine requirement, if workers in the selected fields don’t want to get vaccinated and can’t get an exemption, they can seek other employment.
No “Irreparable Injury”
“They will not suffer irreparable harm if the court does not grant immediate relief,” the government wrote in its response. “Having to get vaccinated or find another job is not irreparable injury — especially given that the vaccination requirements permit exceptions for disability, medical conditions, or sincerely held religious beliefs.”
The state also argues that the court cannot rule in the stead of the governor and health officials who are charged with protecting public health.
“(The plaintiffs) ask this court to second-guess the work of the federal agencies whose duty it is to evaluate, approve, and recommend vaccinations for the public’s use during a global pandemic,” the state wrote. “There is no legal basis for these extraordinary steps. It is not this court’s role to re-evaluate the work of federal scientific agencies, especially not on this anemic record. Public health measures deemed necessary to hasten the end of the pandemic are necessarily in the public interest.”
The lawsuit’s plaintiffs include a mix of state government employees, public school workers and health care workers who work for private employers. The state’s vaccine requirements don't force private employers to fire workers who don’t comply with the vaccine requirements. Employers are free to come up with solutions for employees who aren’t fully vaccinated, such as letting them go on administrative leave or use vacation time until they are vaccinated. In the response, state attorneys say employees are free to contest their terminations in lawsuit against their employers if they believe their exemption was unfairly denied.
Still, employees are “not entitled to dictate the terms of their employment” and they can work elsewhere if they don’t like the employer’s requirements, the state argues.
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.
Overall, about 82% of health care workers in Oregon are vaccinated, a rate that varies among individual professions and regions of the state.
So far, four other legal challenges to vaccine requirements have failed in Oregon.