Doctors Group Urges Supreme Court to Hear CHD Lawsuit Against Rutgers

CHD's lawsuit challenging Rutgers University’s COVID-19 vaccine mandate provides the Supreme Court with an “excellent opportunity” to overturn the Jacobson v. Massachusetts ruling, AAPS said.

by Suzanne Burdick, Ph.D.

Days after an appeals court ruled Los Angeles school employees could sue the district over its COVID-19 vaccine mandate because the shots aren’t “traditional vaccines,” a group of doctors urged the U.S. Supreme Court to hear a Children’s Health Defense (CHD) lawsuit challenging the constitutionality of Rutgers University’s COVID-19 vaccine mandate for students.

The Association of American Physicians and Surgeons (AAPS) on Monday filed an amicus brief in the Rutgers case. The group said the case “offers an excellent opportunity for the Court to overturn Jacobson v. Massachusetts, which is an outdated precedent causing havoc of national significance.”

In overturning the dismissal of the Los Angeles Unified School District (LAUSD) case, Judge Ryan Douglas Nelson for the 9th Circuit U.S. Court of Appeals said the lower court “misapplied” Jacobson.

Nelson said the COVID-19 shot “does not effectively prevent spread but only mitigates symptoms for the recipient and therefore is akin to a medical treatment, not a ‘traditional’ vaccine. … Thus, Jacobson does not apply.”

The 9th Circuit also ruled that just because the LAUSD mandate is no longer in effect, the lawsuit against the district is not moot.

CHD and 18 Rutgers students in August 2021 sued Rutgers, the first university to mandate COVID-19 vaccines for students. After the case was dismissed, CHD and 13 students appealed.

In February 2024, the 3rd Circuit U.S. Court of Appeals decided in favor of Rutgers, ruling that Rutgers had a “rational basis” for the mandate as part of its efforts to curb the pandemic on campus.

Although Rutgers has since also rescinded its mandate, CHD last month asked the Supreme Court to hear the case.

AAPS General Counsel Andrew Schlafly, who wrote the amicus AAPS brief, told The Defender, “The rubber-stamping by courts of vaccine mandates needs to end.”

AAPS is a non-partisan professional association of U.S. doctors and surgeons dedicated to the Hippocratic Oath and preserving the sanctity of the patient-physician relationship.

“I am honored and grateful,” CHD CEO Mary Holland told The Defender, “that AAPS has stepped up to strongly support CHD’s petition to the U.S. Supreme Court to hear the challenge that university students may not be compelled to take experimental injections.”

‘Fundamental right’ to refuse COVID shots because they don’t prevent transmission

Jacobson is a 1905 smallpox vaccine case in which the court found that a state may require all residents to take a vaccine, without exemptions, if a rational basis exists to determine that such a step is necessary to mitigate a public health emergency.

CHD General Counsel Kim Mack Rosenberg said a judicial review of Jacobson is “long overdue.” She said AAPS did a good job of pointing this out in its amicus brief.

In CHD’s case, the 3rd Circuit cited Jacobson when it ruled in favor of Rutgers University, saying Rutgers had a “rational basis” for its COVID-19 vaccine mandate as part of its efforts to curb the pandemic on campus.

The court reached its decision by using what Mack Rosenberg called a “rational basis standard of review” — meaning the courts considered Rutgers’ policy as “rational” given the COVID-19 pandemic.

But the court could have used a “heightened standard of review that’s appropriate where fundamental rights are implicated,” she said.

In other words, the court could have ruled that the case wasn’t about whether Rutgers’ policy was rational — it was about whether the plaintiffs have a “fundamental right” to informed consent and to refuse experimental medical treatment.

Mack Rosenberg called the 9th Circuit decision in the LAUSD COVID-19 vaccine mandate case “very important” because it affirmed that people have a “fundamental right” to refuse COVID-19 shots because the shots don’t prevent transmission.

The 9th Circuit opinion stated:

“Compulsory treatment for the health benefit of the person treated — as opposed to compulsory treatment for the health benefit of others — implicates the fundamental right to refuse medical treatment. Plaintiffs’ allegations here are sufficient to invoke that fundamental right.”

“Where a fundamental right is implicated,” Mack Rosenberg explained, “courts should apply a strict scrutiny standard, which requires that the government has to show a compelling state interest and show that it has narrowly tailored the law or regulation — or here, the mandate — to achieve its purpose using the least restrictive means.”

That’s why it’s important that the Supreme Court review how CHD’s case against Rutgers was handled, she said.

‘No one should be forced to choose between a college diploma and informed consent’

In asking the Supreme Court to hear the Rutgers case, CHD alleged the university’s mandate violated the students’ right to informed consent and to refuse unwanted medical treatments.

In its amicus brief, the AAPS agreed, stating, “No one should be forced to choose between a college diploma and informed consent.”

Moreover, Jacobson didn’t involve the kind of “draconian penalties” for noncompliance that are common today, according to the AAPS brief.

Schlafly noted that the fine for non-compliance with the smallpox vaccine mandate upheld in Jacobson was only $5, the equivalent of less than $200 today.

In contrast, students who don’t comply with a COVID-19 vaccine mandate may lose access to their college diploma — costing them hundreds of thousands of dollars, he said.

Meanwhile, others gained financially as the Rutgers’ vaccine mandate was “driven by financial conflicts of interest and political alliance,” Schlafly wrote in the brief.

“Abuse of power by government agencies and government-appointed, so-called experts, like Dr. Anthony Fauci, is incompatible with the principle of informed consent, the ethical practice of medicine, and the standard of individual rights,” he said.

The AAPS celebrated its own legal win this week when an appeals court found the federal government’s now-defunct Disinformation Governance Board coordinated with several medical boards to stifle doctors’ free speech on social media platforms during the COVID-19 pandemic.

The June 3 ruling by the 5th Circuit U.S. Court of Appeals means the group’s lawsuit against several medical boards will go back to the U.S. District Court for the Southern District of Texas.

The lawsuit, filed in July 2022, alleges the American Board of Internal Medicine, the American Board of Obstetrics & Gynecology and the American Board of Family Medicine, in collaboration with the U.S. Department of Homeland Security, censored and chilled the speech of physicians who expressed views critical of the government’s stance on issues such as COVID-19 lockdowns, mask mandates, vaccines and abortion.