Last year we recounted a decision that denied a preliminary injunction to selfish New Mexicans who think that they have a right to endanger others by refusing to be vaccinated against the SARS-CoV-2 virus, which causes COVID-19. Specifically the court denied relief to a registered nurse who claimed that she has a right to treat patients in a hospital and a mother who claimed that her children have a right to display livestock at a state fair without being vaccinated. In denying the preliminary injunction, the court—the United States District Court for the District of New Mexico—held that the plaintiffs were unlikely to prevail on their constitutional and statutory claims. Confirming the accuracy of that prediction, the court has now dismissed the plaintiffs’ suit.
Consistent with precedent, Valdez v. Grisham, 2022 WL 3577112 (D.N.M. 2022), rejected the plaintiffs’ attack on a public health order requiring that all hospital workers and all who would enter the New Mexico State Fair grounds be vaccinated.
Turning aside the plaintiffs’ statutory challenge, the court held that the public health order did not violate the FDCA by requiring that plaintiffs be vaccinated with “unapproved” vaccines. The claim failed for two reasons. First, it rested on a false premise given that the FDA has in fact approved administration of the Pfizer vaccine for those 12 and older. Second, it misconstrued the FDCA, which “nowhere prevent[s] the state, or any other entity, from requiring certain individuals to be vaccinated against COVID-19. 2022 WL 3577112, at *5.
Plaintiffs’ constitutional claims fared no better.
The court found no merit to plaintiffs’ substantive due process claim. It began by rejecting the plaintiffs’ broad characterization of the rights purportedly at issue. The rights at issue were neither the right to engage in one’s chosen profession nor the right to raise one’s children as one sees fit. Rather, said the court, the supposed rights actually implicated were “the right to work in a hospital or attend the State Fair, unvaccinated and during a pandemic.” 2022 WL 3577112, at *7. Because these are not “fundamental” rights “deeply rooted in this Nation’s history and tradition,” they may be restricted so long as the restriction is—as in this case, the court found—rationally related to a legitimate governmental interest. Id.
The court also rejected the plaintiffs’ claim that the public health order wrongly deprives them of what they characterized as “the common law right to bodily integrity.” 2022 WL 3577112, at *7. To start, said the court, the public health order does not require anyone to get vaccinated. Rather, it simply conditions employment at a hospital or attendance at a state fair on being vaccinated. Because there is no fundamental right to attend a state fair and because even a fundamental right to practice one’s chosen profession may be “subject to reasonable health and safety regulations,” requiring vaccination as a condition for working in a hospital or attending a state fair does not violate substantive due process, the court concluded. Id. at *8.
The plaintiffs’ equal protection claim failed, said the court, because the rights actually at issue are not “fundamental” rights and there is a rational relationship between a legitimate governmental interest and the differential treatment of the vaccinated and unvaccinated.
Nor, held the court, does the public health order violate procedural due process. Given that the order is “generally applicable” to all individuals within designated classes, the plaintiffs are “not entitled to [process] above and beyond the notice provided by the enactment and publication of the [public health order] itself.” 2022 WL 3577112, at *14.
None of these conclusions should come as a surprise given longstanding Supreme Court precedent under which “it is within the police power of a state to provide for compulsory vaccination.” 2022 WL 3577112, at *11 (quoting Zucht v. King, 260 U.S. 174, 176, (1922), and citing Jacobson v. Massachusetts, 197 U.S. 11 (1905)). Hoping to avoid this dispositive caselaw, the plaintiffs argued that COVID-19 vaccinations are “gene modification therapies” rather than vaccinations because they use messenger RNA (mRNA) rather than actual virus to trigger an immune response. Like all other courts to have considered the issue, the Valdez court concluded that mRNA vaccines are vaccines and thus covered by Jacobson, which upheld a municipal vaccination mandate that allowed no exceptions.
Finally, the Valdez court held that the New Mexico public health order did not violate the constitutional prohibition on state laws that “impair” contracts. The state order did not impair the nurse’s employment contract because her employer had independently imposed a vaccination requirement. And it did not impair the mother’s contract for her children to display livestock at the state fair because was eligible to receive a complete refund (and her children could display their livestock at another state fair even without vaccination).
Once again, reason carries the day. Onward to full vaccination.