MANDATES VIOLATE FUNDAMENTAL CONSTITUTIONAL RIGHTS
The complaint explains,
“Because the Injections are treatments, and not vaccines, strict scrutiny applies. The US Supreme Court has recognized a “general liberty interest in refusing medical treatment.” Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278, 110 S. Ct. 2841, 2851, 111 L.Ed.2d 224, 242 (1990). It has also recognized that the forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty. Washington v. Harper, 494 U.S. 210, 229, 110 S. Ct. 1028, 1041, 108 L.Ed.2d 178, 203 (1990), see also id. at 223 (further acknowledging in dicta that, outside of the prison context, the right to refuse treatment would be a “fundamental right” subject to strict scrutiny).32
As mandated medical treatments are a substantial burden, Defendants must prove that the CMS Mandate is narrowly tailored to meet a compelling interest.
No such compelling interest exists because, as alleged above, the Injections are not effective against the now dominant Omicron variant of SARS-CoV-2 in that they do not prevent the recipient from becoming infected, getting reinfected, or transmitting SARS-CoV-2 to others. Indeed, evidence shows that vaccinated individuals have more SARS-CoV-2 in their nasal passages than unvaccinated people do.
The Injections may have been somewhat effective against the original SARS-CoV- 2 strain, but that strain has come and gone, and the Injections—designed to fight yesterday’s threat—are simply ineffective against the current variant.
Since the Injections are ineffective against the Delta and Omicron viral variants, and the original variant has been supplanted, there can be no compelling interest to mandate their use at this time.”
But even if there were a compelling interest in mandating the Injections, the CMS Mandate is not narrowly tailored to achieve such an interest.
The blanket mandate ignores individual factors increasing or decreasing the risks that the plaintiff—indeed, all healthcare workers—pose to themselves or to others.
Defendants entirely disregard whether employees have already obtained natural immunity despite the fact that natural immunity does actually provide immunity whereas the Injections do not.
Treating all employees the same, regardless of their individual medical status, risk factors, and natural immunity status is not narrowly tailored.
Moreover, the CMS Mandate fails entirely to consider other existing treatment options beyond the Injections as part of a more narrowly tailored approach. 97. Given these facts, as more fully set forth above, the CMS Mandate has no real or substantial relation to public health or is beyond all question, a plain, palpable invasion of rights secured by the fundamental law. Alternatively, the CMS Mandate has no real or substantial relation to public health or is beyond all question, a plain, palpable invasion of rights secured by the fundamental law as to Plaintiff, who already has natural immunity.”
Mandates Violate the unconstitutional-conditions doctrine.
The complaint states;
The CMS Mandate also violates the unconstitutional-conditions doctrine, under which the government may not condition employment “on a basis that infringes [an employee’s] constitutionally protected interests.” Perry v. Sindermann, 408 U.S. 593,597 (1972); see also Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 606 (2013) (“[T]he unconstitutional conditions doctrine forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them.”).
Unconstitutional conditions case law often references the existence of varying degrees of coercion. According to that body of law, Defendants cannot impair Plaintiff’s right to refuse medical care through forms of coercion and through this explicit mandate. See, e.g., Koontz, 570 U.S. 595 (2013). 100. (“[U]nconstitutional conditions doctrine forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them”); Memorial Hosp. v. Maricopa Cty., 415 U.S. 250 (1974) (“[An] overarching principle, known as the unconstitutional conditions doctrine ... vindicates the Constitution’s enumerated rights by preventing the government from coercing the people into giving them up.”)
The decision whether to take a medical treatment or not is a fundamental human right which Plaintiff enjoys. Plaintiff cannot be forced to choose between his right to refuse medical treatment by the government coercively withholding his right to pursue his career as a surgeon, and his passion to heal children with congenital defects such as cleft palates.
Accordingly, Plaintiff is entitled to temporary, preliminary, and permanent injunctive relief restraining Defendants from enforcing the CMS Mandate.
Pursuant to 28 U.S. Code §§ 2201-02 and other applicable law, Plaintiffs are entitled to a declaration that the CMS Mandate is unlawful and any further relief which may be appropriate.
Violation of Equal Protection
The Equal Protection Clause prohibits classifications that affect some groups of citizens differently than others. (Engquist v. Or. Dept. of Agric. (2008) 553 U.S. 591, 601.) Thetouchstone of this analysis is whether a state creates disparity between classes of individuals whose situations are arguably indistinguishable. (Ross v. Moffitt (1974) 417 U.S. 600, 609.)
The CMS Mandate creates two classes of healthcare workers; injected and uninjected. The members of one class, the uninjected, get terminated. The uninjected cannot advance their careers. They cannot provide for their families, pay their mortgages, or make a car payment. The other class, the vaccinated, get to keep their job in their chosen profession, advance their careers, provide for their families, pay their mortgages, and make their car payments.
Yet the situations of these employees are indistinguishable because injected healthcare workers can become infected with SARS-CoV-2, become re-infected with SARS-CoV- 2, and can transmit SARS-CoV-2 to fellow healthcare workers, patients, and visitors. The Injections make no difference in these respects. Their only function is to make symptoms less severe.
Discriminating against the uninjected controverts the goals of the Equal Protection Clause – i.e., to abolish barriers presenting unreasonable obstacles to advancement on the basis of individual merit.
Pursuant to the Fifth and Fourteenth Amendments, Plaintiff is entitled to temporary, preliminary, and permanent injunctive relief restraining Defendants from enforcing the CMS Mandate.” [MORE]
Dr. Griner told the media, “Morally I can’t go against what I’m feeling. If that means the hospitals take away my privileges, then that’s what’s going to happen. It breaks my heart which is why I want to get on the forefront of this and stop that from ultimately happening,” Griner said.