Split NC Supreme Court permits teen’s forced COVID vaccination suit against Guilford schools

A Guilford County teenager and his mother can move forward with their lawsuit against the local school board and the Old North State Medical Society over a forced COVID-19 vaccination. The state Supreme Court reversed lower court rulings against the teen and mother with a 5-2 decision Friday.

Tanner Smith was 14 when he was forcibly vaccinated at a Guilford high school in 2021. Smith and mother Emily Happel argued in court that a clinic worker from the medical society administered the COVID vaccine against the teen’s will and without parental consent.

Over Smith’s protests, the unnamed clinic worker is alleged to have said, “Give it to him anyway.”

Lower courts have ruled that the federal Public Readiness and Emergency Preparedness Act protected both the school system and the medical society from legal liability.

“[W]e 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,” wrote Chief Justice Paul Newby for the state Supreme Court’s majority.

“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,” Newby wrote.

“First, we agree that the state constitution protects a parent’s right to control her child’s upbringing, including her right to make medical decisions on her child’s behalf,” Newby wrote about the court’s support for Smith and Happel’s arguments.

“[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,” Newby added. “Our state constitution and caselaw have long implied the existence of the precise right plaintiffs claim here. We directly recognize it today.”

The court’s majority identified another constitutional right tied to Smith and Happel’s suit. “[W]e agree that the 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,” Newby wrote.

“[T]he ambiguity of the PREP Act’s language requires us to consider whether Congress intended to include even unconstitutional conduct within the immunity’s broad scope,” according to the majority opinion. “Defendants ask us to adopt this literal reading.”

“Plaintiffs, on the other hand, contend that Congress could not have intended to immunize — indeed, even incentivize — unconstitutional conduct. We agree with plaintiffs,” Newby wrote.

“The literalist interpretation defendants urge us to adopt today defies even the broad scope of the statutory text. Under this view, Congress gave 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 ramifications of this approach are deeply repugnant to our constitutional traditions and the history of this State and Nation,” he added.

“We hold that the plain text of the PREP Act does not bar claims brought under our state constitution,” Newby wrote.

The case will head back to the state Appeals Court to address the plaintiffs’ constitutional claims.

All five Republican justices supported Newby’s opinion. Justice Phil Berger Jr. wrote a separate concurring opinion supported by Justice Tamara Barringer.

“‘[F]orced medication [is] a battery, and the[re is a] long legal tradition protecting the decision to refuse unwanted medical treatment,’” Berger wrote, citing the 1997 precedent Washington v. Glucksberg. “That legal tradition is rooted in the Lockean notion of self-ownership – that bodily autonomy is the height of personal freedom and fundamental property rights, provided however that your actions do not harm others.”

“I write separately to note that the sweeping grant of immunity in the PREP Act seems contrary to this basic understanding,” Berger added. “The government’s reading of the Act appears to override state consent laws such that intentional torts may be cloaked with immunity when the harm inflicted falls short of death or serious physical injury. But shouldn’t immunity under the PREP Act be predicated on a lawful administration of a covered countermeasure?”

“Given the fundamental principles articulated by Locke and echoed in Glucksberg, it is difficult to concede that the PREP Act confers immunity for outright wrongful acts,” Berger concluded.

The high court’s two Democrats dissented from the decision in Happel v. Guilford County Board of Education.

“Self-described textualists and originalists have historically professed to avoid ‘turn[ing] somersaults’ to reach particular interpretations of the written law,” Justice Allison Riggs wrote. “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).”

“The majority also recognizes two implied fundamental state constitutional rights — one arbitrarily defined without any apparent principle — a right to bodily integrity divorced from bodily autonomy — and the other defined in principle but applied arbitrarily — the right of parents to direct the raising of their children,” Riggs added. “So, while I agree that the constitution protects rights to bodily integrity and those of parents to care for their children, I cannot concur in their articulation here. Because I find both the PREP Act and constitutional analyses fundamentally unsound, I respectfully dissent.”

“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,” Riggs wrote. “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.”

Language in the federal PREP Act is clear, Riggs wrote. “That this plain and unambiguous language leads to what a judge might view as undesirable policy outcomes — or even unforeseen ones — is no reason to disregard congressional intent; to the contrary, it reinforces our duty to apply it consistent with its broad reach.”

“After all, as the majority sees no irony in preaching, we are ‘a government of the people, not of the judges,’” she added.

The post Split NC Supreme Court permits teen’s forced COVID vaccination suit against Guilford schools first appeared on Carolina Journal.