N.C. Court on Compensation for (Apparently Unauthorized) Forced Vaccination by School

The court concludes that the federal 2005 Public Readiness and Emergency Preparedness (PREP) Act preempts state battery claims, but not state constitutional law claims.

A short excerpt from Friday's 22,000-word North Carolina Supreme Court opinion in Happel v. Guilford County Bd. of Ed. (written by Chief Justice Paul Newby):

This case concerns a fourteen-year-old boy's attempt to seek a legal remedy after his school's chosen medical provider injected him with a COVID-19 vaccine against his and his mother's wishes…. Defendants … argue that the federal Public Readiness and Emergency Preparedness (PREP) Act [enacted in 2005] completely immunizes them from plaintiffs' suit because it preempts all of their state law claims. Thus, we are tasked with considering whether Congress intended the PREP Act to immunize state actors who forcibly vaccinate a child without his or his parent's consent, thereby committing a battery and infringing their fundamental rights under the state constitution.

The PREP Act's plain text leads us to conclude that its immunity only covers tort injuries. Because tort injuries are not constitutional violations, the PREP Act does not bar plaintiffs' constitutional claims. We therefore affirm the decision below as to plaintiffs' battery claim, reverse as to their constitutional claims, and remand for further proceedings….

In August 2021, Western Guilford High School notified its football players and their parents, including fourteen-year-old Tanner Smith and his mother, Emily Happel, that it had identified a cluster of COVID-19 cases among the team. It therefore suspended all team activities and required players to undergo COVID-19 testing or be "cleared by a public health professional" before returning to practice. The school provided a list of three locations at which players could receive free testing, one of which was a dual testing and vaccination clinic hosted at the school itself and operated in partnership with defendant Old North State Medical Society (ONSMS). The letter sent to players and their parents, however, only stated that the school clinic offered COVID-19 tests. It did not explain that the school clinic also provided COVID-19 vaccines, nor did it state that the school clinic required students to bring a signed parental consent form before they could be vaccinated.

A few days later, Smith's stepfather drove him to the school clinic to be tested. Smith did not want to be vaccinated. He did not bring a signed consent form and was unaware that the school clinic even offered vaccines until arriving that day. Clinic workers nonetheless attempted to contact the child's mother over the phone to obtain consent to vaccinate her son. Happel did not answer, at which point one of the workers instructed another to "give it to [Smith] anyway." The workers made no effort to contact Smith's stepfather, who was waiting outside in the parking lot. Ignoring additional protests from Smith himself, the workers forcibly injected him with the first dose of the Pfizer/BioNTech vaccine….

The court took the view that the plaintiffs' allegations adequately raised state constitutional claims (plaintiffs had abandoned their federal claims) under the state constitutional rights to bodily integrity and to parental authority:

[The N.C. Constitution's] Law of the Land Clause protects the right to bodily integrity, which we define as the right of a competent person to refuse forced, nonmandatory medical treatment. Our conclusion aligns with the Supreme Court's understanding of the bodily integrity right under the Due Process Clause, which traces its roots to common-law battery….

[T]he bodily integrity right is not absolute. Courts across the United States have overwhelmingly held that the fundamental right to refuse medical treatment does not imply a fundamental right to disregard a vaccine mandate…. [C]ourts confronting this issue distinguish Cruzan [which recognized a right to refuse medical treatment] from Jacobson [which upheld a vaccination mandate] by reasoning that public welfare may sometimes justify vaccination mandates; purely individualized medical decisions, on the other hand, do not implicate such concerns….

Plaintiffs do not argue that they have a categorical right to disobey a vaccine mandate. Rather, their argument is essentially about the existence of a right to resist an unwanted, nonmandatory medical touching that in this instance just so happened to be a vaccine. Indeed, they write in their opening brief: "[Plaintiffs' battery and state constitutional] claims would result regardless of what substance had been administered to [Smith]. It matters not whether it was a COVID-19 vaccine, a chickenpox vaccine, an [a]spirin, or open-heart surgery."

Tellingly, defendants do not attempt to justify the workers' behavior, nor do they claim Smith's vaccination was necessary to protect the health of his football teammates, the school population, or the general public. Instead, defendants simply contend that they are not liable for this action, whether because of PREP Act immunity, the principal-agent relationship, or another legal theory. Both sides acknowledge that defendants only required Smith to undergo testing or be otherwise cleared by a medical professional, a requirement with which he dutifully complied. The parties also recognize that defendants' policy required parental consent as a condition of vaccination and that parental consent was not given here….

Plaintiffs assert a straightforward right to refuse forced, nonmandated medical treatment, a right that springs from the common-law right to refuse unwanted touching, and falls squarely within the boundaries of our constitution's Law of the Land Clause. Accordingly, we do not apply [the vaccination mandate cases].

We [also] conclude that the Law of the Land Clause protects … a parent's right to control her child's upbringing …. {Although parental rights are not absolute, government interference is not justified "except when the good of the child clearly requires it." "The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parents presumably act in the best interests of their children, and parents, not the State, presumably know what those best interests are…. [T]he constitutional right to full "custody and control" over one's minor children would ring hollow if it did not include the right to consent on the child's behalf, as well as the right to seek a constitutional remedy when the State disregards the absence of that consent.}

The court then went on to decide whether the PREP Act preempts the state constitutional claims. That Act's immunity provision says,

Subject to the other provisions of this section, a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure ….

The court suggested that the statute could not be read as giving "carte blanche to any willful misconduct related to the administration of a covered countermeasure, including the State's deliberate violation of fundamental constitutional rights, so long as it fell short of causing 'death or serious physical injury'" (the last clause refers to a specific statutory exception from immunity):

The ramifications of this approach are deeply repugnant to our constitutional traditions and the history of this State and Nation. Defendants' interpretation would permit a state actor to vaccinate an unconscious patient, or a public school nurse to deliberately exaggerate the efficacy of a medical treatment to secure a parent's "consent." According to this literalist reading, both scenarios would be covered because neither led to death or serious physical injury. The fundamental and paramount constitutional rights to bodily integrity and parental control would be discarded without second thought. That simply cannot be what Congress intended. Nor could it have been the goal of the HHS Secretary, whose emergency declaration repeatedly predicated immunity on lawful, voluntary conduct….

Textual interpretation seeks to give statutes their plain and ordinary meaning. Literalism is not proper textual analysis; we must reject readings that defy our common sense…. We do not believe that the PREP Act intended to effectively erase deeply engrained and fundamental constitutional rights….

But the court concluded that "it is unnecessary to fully develop the foregoing point because plaintiffs have a second convincing argument: that their state constitutional claims are not 'claims for loss'":

Although Congress could have applied the immunity to "all claims," it instead limited immunity to "all claims for loss." That choice implies the existence of some subset of claims outside the immunity's reach because they are not "for loss."

The question therefore becomes what "loss" means. In paragraph (a)(2), entitled "Scope of Claims for Loss," the PREP Act itself gives the following definition:

For purposes of this section, the term "loss" means any type of loss, including—

(i) death;

(ii) physical, mental, or emotional injury, illness, disability, or condition;

(iii) fear of physical, mental, or emotional injury, illness, disability, or condition, including any need for medical monitoring; and

(iv) loss of or damage to property, including business interruption loss….

Here the first part of the statutory definition, "the term 'loss' means any type of loss," is circular and thus unhelpful. Fortunately, the second part of the definition provides four examples of losses that tease out the word's meaning. We therefore begin with the second part of the definition and work backwards: first using the examples to understand "loss," then applying that understanding to interpret "any type of loss."

Examples help limit the scope of words that might otherwise be subject to a wider interpretation….

Loss under tort law, though serious in its own right, is not equivalent to loss in the constitutional sense. Tort law protects the people from each other under a system of sometimes arbitrary rules created by judges over a span of centuries. In contrast, the state constitution protects the people from their government, according to an order of natural rights far older than the document itself. Indeed, as we detailed at length earlier in this opinion, the seriousness of a run-of-the-mill battery claim pales in comparison to the State's deliberate deprivation of one's fundamental constitutional liberties.

Because ordinary tort loss is distinct from constitutional loss, the tort-based examples included in the PREP Act suggest that Congress did not intend for the immunity to block state constitutional claims. Therefore, when the statute defines loss as "any type of loss," it means any type of tortious injury: physical injury, property damage, loss of use, and so on. Although that definition encompasses plaintiffs' battery claim, it does not cover their claims under the state constitution. The Court of Appeals erred in holding otherwise….

Justice Philip Berger, joined by Justice Tamara Barringer, concurred briefly to emphasize "that the sweeping grant of immunity in the PREP Act seems contrary to this basic understanding" of constitutionally protected "bodily autonomy." "[S]houldn't immunity under the PREP Act be predicated on a lawful administration of a covered countermeasure?"

And here's a short excerpt from Justice Allison Riggs' dissent:

Self-described textualists and originalists have historically professed to avoid "turn[ing] somersaults" to reach particular interpretations of the written law. The majority here should abandon any such pretense; through a series of dizzying inversions, it explicitly rewrites an unambiguous statute to exclude state constitutional claims from the broad and inclusive immunity "from suit and liability under Federal and State law with respect to all claims for loss" established by the Public Readiness and Emergency Preparedness Act (PREP Act)….

Indeed, it is not possible to square the majority's reading with the purposes of the PREP Act and the almost uniformly broad language used to effectuate it. Allowing plaintiffs to skirt around the immunity granted by the PREP Act by simply recasting their otherwise-preempted claims as state constitutional injuries would create a glaring loophole that undermines the very protections Congress intended to provide. Elevating a claim's form over its substance to avoid the application of a preemption provision—especially when it frustrates the purpose of the overall act—is plainly contrary to law….

"[T]here is no single right answer to the meaning of 'loss' based on its plain reading." Congress resolved this ambiguity in the simplest, most straightforward way possible: by stating "loss means any type of loss." With this ambiguity eliminated by the PREP Act's plain language, there's no need to reinject uncertainty into the statutory text by reading the clause in reverse…. No more convincing is the majority's claim that treating a list of expressly illustrative examples as such somehow serves to render those examples meaningless…..

The facts alleged in the plaintiffs' complaint are undoubtedly troubling; as even the defendants' policies provided, the administration of a vaccine to a minor child without parental consent in these circumstances was wrong. The minor child and his parents had every right and reason to be outraged at their losses of their physical and parental rights. And, absent any congressional countermand, they should have the opportunity to pursue any lawful claims for those losses against those responsible.

But "tragic facts make bad law," and "the Legislature's superior capacity for weighing competing interests means that we must be particularly careful not to substitute our judgment of what is desirable for that of Congress." And in the case of the PREP Act, Congress balanced the need for maximum public and private participation in rapid nationwide responses to public health crises against the right to recovery via civil suits like the one before this Court….