Norris v. Samuel L. Stanley, Jr., in his official capacity as President of Michigan State University, et al.

Washington, DC (March 11, 2024) – On behalf of clients Jeanna Norris, Kraig Ehm, and D’Ann Rohrer, the New Civil Liberties Alliance has petitioned the Supreme Court to hear Norris, et al.  v. Stanley, et al. regarding Michigan State University’s unlawful and unscientific Covid-19 vaccine mandate. MSU fired two of NCLA’s three clients, all of whom had naturally acquired immunity to Covid, for refusing the vaccine. By conditioning their public employment on receiving unnecessary medical treatment, MSU violated their constitutional right to refuse medical intervention and ignored their statutory right to informed consent. NCLA’s petition for a writ of certiorari asks the Court to hold that the 1905 Jacobson v. Massachusetts decision requires states to satisfy at least intermediate scrutiny before mandating their employees receive an unnecessary vaccine. NCLA further urges the Court to hold that MSU’s policy failed to meet that standard.

An unelected, unaccountable administrator imposed MSU’s Covid vaccine mandate on all employees and students without an approved medical or religious exemption. Despite claiming to rely on CDC guidance, MSU permitted individuals to satisfy the standard by taking any WHO-approved vaccine, including those that are not FDA-approved. At the same time, and contrary to all scientific evidence and basic principles of immunology, MSU refused to recognize naturally acquired immunity to the virus. Instead of following the science, MSU terminated Mr. Ehm and Ms. Rohrer (while providing Ms. Norris with a religious exemption). The district court dismissed these brave Americans’ claims of constitutional and statutory rights violations, holding MSU’s policy survived rational basis review—the most permissive form of judicial scrutiny.

NCLA’s petition maintains that rational basis review is not the proper standard by which to evaluate vaccine mandates because such mandates impinge upon the constitutional rights to bodily integrity and to refuse medical intervention. Instead, intermediate scrutiny must be applied, meaning that the policy in question must be substantially related to an important governmental interest. MSU’s mandate failed that test because vaccinating already immune individuals was not related to any legitimate interest. The Supreme Court has long recognized that the right to refuse treatment is deeply rooted in America’s history and traditions, and a state actor like MSU is not entitled to interfere in personal health decisions without a sufficiently compelling reason and even then, only in a way that is necessary to achieve a legitimate goal. To hold otherwise would give the government free rein to wield unconstrained and limitless power over countless personal healthcare decisions. Forcing a Covid-recovered person with natural immunity to take a vaccine that provides no additional benefit (to themselves or to third parties), while risking adverse effects, does not meet any standard of review.

The Jacobson case, decided during a smallpox epidemic, held that a state government can mandate vaccinations. But the lower courts have been overreading that case and treating it as an unlimited license for government authorities to impose dissimilar mandates under wildly different circumstances and in the face of modern scientific advances. Lower courts have failed to recognize that Jacobson preceded modern constitutional analysis that requires government to bear a heavier burden before limiting citizens’ rights to bodily autonomy. NCLA’s petition presents the Supreme Court with an ideal opportunity to correct this widespread misunderstanding before another emergency pandemic breaks out.

NCLA released the following statements:

“During the Covid pandemic various governmental entities ran roughshod over not just constitutional law, but also the basic scientific principles which they claimed to be following. Now that the country mostly has returned to normal, the Court has an opportunity to clarify once and for all that while government has broad powers to protect public health it still must act with due regard to people’s civil liberties.”
— Gregory Dolin, M.D., Senior Litigation Counsel, NCLA

“Jacobson is an outdated precedent. The failure to address its shortcomings has tacitly enabled enormous violations of Americans’ rights, like the right to refuse medical treatment. The Court needs to update the precedent to reflect current constitutional law.”
— John Vecchione, Senior Litigation Counsel, NCLA

“CDC’s flawed guidance was not subject to direct court challenge, because it was deemed mere guidance. If MSU’s actions, which only partially followed that guidance, are insulated by a permissive standard of judicial review, then Americans will have lost their constitutional rights to control what goes into their bodies.”
— Mark Chenoweth, President, NCLA

For more information visit the case page here or watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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Washington, DC (July 5, 2022) – Today, the New Civil Liberties Alliance filed an opening brief in the U.S. Court of Appeals for the Sixth Circuit in Norris, et al. v. Samuel L. Stanley, Jr., et al. Jeanna Norris, Kraig Ehm, and D’Ann Rohrer, current or former employees of Michigan State University fired for refusing a COVID-19 vaccine, have challenged MSU’s unlawful vaccine mandate, which violates their constitutional right to bodily autonomy, conditions their employment on receiving unnecessary medical treatment, and ignores their statutory right to informed consent.

In July of 2021, MSU issued a vaccine mandate requiring all employees and students to receive a COVID-19 vaccine unless they receive an approved medical or religious exemption. Any WHO-approved vaccine, including those that are not FDA-approved (e.g., Chinese-developed Sinovac and Sinopharm vaccines, which have approximately 50% efficacy rates), are sufficient to satisfy MSU’s mandate, but Plaintiffs’ naturally acquired immunity to the virus is not. Disciplinary proceedings against them commenced for declining to receive a COVID-19 vaccination, and two of the three were terminated. Plaintiffs brought suit in federal district court challenging the mandate on federal constitutional and statutory grounds. The district court granted MSU’s motion to dismiss the complaint and ruled MSU’s vaccine mandate survives the low standard of rational basis review.

Plaintiffs maintain that rational basis review is not the appropriate standard by which to evaluate their claim that MSU’s vaccine mandate violates their constitutional right to bodily integrity. Nevertheless, even if rational basis applies, Plaintiffs should still prevail because MSU’s mandate doesn’t satisfy this standard. The government—including a state actor like MSU—is not entitled, without a compelling reason, to insert itself into personal health decisions. To hold otherwise would endow the government with carte blanche to wield unconstrained and limitless power over countless personal decisions in everyday life.

Forcing a COVID-recovered person with natural immunity to take a vaccine that provides no benefit individually nor to third parties, while risking adverse effects, is not rational. MSU’s logic would mean the university could mandate the vaccine for each employee every day—because doing so might slightly boost their antibody levels.

The district court even suggested that were it to decide the case based on the scientific evidence available at the time of the hearing on the motion to dismiss—February of 2022—it may have reached a different conclusion as to the rationality of the mandate. However, it considered itself bound by the state of scientific knowledge as of July 2021, when MSU crafted its vaccine mandate. This was legal error.

MSU’s vaccine mandate leveraged Plaintiffs’ employment in order to coerce them into surrendering their rights to bodily autonomy. The mandate did so by threatening Plaintiffs’ livelihoods despite the fact that the vaccine in question does not stop transmission of the virus. And all of that was accomplished not through democratic means, but through usurpation of legislative authority by an unelected, unaccountable administrator. In the face of these facts, the Sixth Circuit Court of Appeals should reverse the district court’s decision to dismiss the case.

NCLA released the following statement:

“The district court erroneously assumed that Jacobson v. Massachusetts, a case from 1905, means MSU’s vaccine mandate is constitutional. The court recognized that the mandate implicates the constitutional right to bodily autonomy, but wrongly concluded that the university had shown sufficient interest in forcing Plaintiffs, who all have natural immunity to COVID-19, to get vaccinated or lose their jobs.”
— Jenin Younes, Litigation Counsel, NCLA

For more information visit the case page here or watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (February 23, 2022) – On Tuesday, Judge Paul Maloney of the U.S. District Court for the Western District of Michigan granted Michigan State University’s (MSU) Motion to Dismiss the class-action lawsuit, Norris, et al. v. Samuel L. Stanley, Jr., et al., ruling that the school acted rationally in enforcing its vaccination policy. The New Civil Liberties Alliance believes the Court erred, among other ways, in ruling that MSU’s vaccine mandate survives rational basis review. NCLA plans to file an appeal with the U.S. Court of Appeals for the Sixth Circuit.

The rationale MSU has offered means that it could mandate the vaccine for each employee every day—because that would boost their antibody levels. At the very least, the question warrants further litigation and cannot be resolved at the motion-to-dismiss stage. Additionally, this case raises the specific question whether vaccinating the naturally immune constitutes a violation of constitutional rights, since there is no compelling government interest to do so, and vaccination always carries a risk of (possibly severe) adverse effects.

MSU’s vaccine mandate requires all faculty, staff, and students to be fully vaccinated or obtain an approved exemption. Naturally acquired immunity is explicitly excluded as the basis for an exemption from the blanket rule, even though natural immunity provides equivalent or greater protection against re-infection and transmission to others than immunity generated by Covid-19 vaccines. Perversely, while MSU rejects natural immunity, it accepts non-FDA approved, inferior foreign vaccines such as Sinovac and Sinopharm, which start out with approximately 50% efficacy rates and wane relatively quickly.

Two plaintiffs, Kraig Ehm and D’Ann Rohrer, who demonstrated naturally acquired immunity to Covid-19 were fired by MSU during the course of the lawsuit for refusing to take the vaccine. The plaintiffs have experienced, and will continue to experience, concrete and particularized harm as a direct consequence of MSU’s policy. MSU’s vaccine mandate not only violates plaintiffs’ bodily autonomy and right to informed consent, but it unconstitutionally forces them to choose between keeping their jobs and asserting control over personal health decisions.

In a silver lining to the District Court’s decision, Judge Maloney indicated that even though MSU achieved its goal of protecting staff and students from Covid-19 based on guidance from the Centers for Disease Control and Prevention (CDC), the calculus may have changed going forward, given CDC’s new research on the strong protection provided by natural immunity. In other words, considering the new research, it may no longer be rational for universities to fire those who can establish that they have natural immunity.

NCLA released the following statements:

“NCLA is disappointed that the district court granted MSU’s motion to dismiss. We understand that the court believed it had no choice given the prevailing case law. However, contrary to the judge’s opinion, a higher level of review is warranted. Under such a standard, MSU’s policy is unconstitutional. We look forward to vindicating our clients’ rights in the Sixth Circuit.”
— Jenin Younes, Litigation Counsel, NCLA

“Michigan State’s policy is completely irrational and should have been struck even on the lowest standard of review. But when your government employer is forcing an unnecessary medical procedure on a disfavored group, the courts should apply a more searching standard than the district court believed it was bound to apply.”
— John J. Vecchione, Senior Litigation Counsel, NCLA

For more information visit the case page here or watch the related case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document 

Washington, DC (December 10, 2021) – Thousands of Americans across the country are being forced to choose between getting a COVID-19 vaccine or keeping their jobs. The situation is intolerable, especially for those who already have antibodies against the virus. A video released today by the New Civil Liberties Alliance brings to light the constitutional issues associated with vaccine mandates for people who have obtained naturally acquired immunity through a prior COVID-19 infection. Jeanna Norris, a Supervisory Administrative Associate and Fiscal Officer at Michigan State University (MSU), and Todd Zywicki, a Law Professor at George Mason University’s (GMU) Antonin Scalia School of Law, sued their employers for violating their constitutional rights to bodily autonomy if they refused to get vaccinated.

Ms. Norris, lead plaintiff in Norris, et al. v. Samuel L. Stanley, Jr., et al., and Prof. Zywicki, lead plaintiff in Professor Todd Zywicki v. Gregory Washington, have fully recovered from COVID-19, and accordingly have natural immunity to the virus, as demonstrated by antibody testing. Medical experts provided attestations in both cases explaining that it is unnecessary from a medical standpoint for these individuals to undergo vaccination, as their naturally acquired immunity means they pose virtually no threat to themselves nor to anyone else—certainly no more threat than a fully vaccinated individual poses.

Ms. Norris and Professor Zywicki received exemptions based on conditions unique to them. However, two other plaintiffs in the class-action lawsuit brought by NCLA against MSU have lost their jobs as a result of the vaccine mandate. Kraig Ehm, a video producer at MSU, from Laingsburg, Michigan, and D’Ann Rohrer, an extension educator at MSU from Ludington, Michigan, were both terminated in November because they declined to receive a COVID-19 vaccine.

The U.S. District Court for the Western District of Michigan should recognize that employers cannot coerce or pressure employees into taking Emergency Use Authorization (EUA) vaccines by threatening them with termination if they don’t comply.

Excerpts from the video:

“NCLA has provided the opportunity to be heard and to have natural immunity validated, not just by the medical community, who already knows this exists, but by everyone. That natural immunity is legitimate and that it’s protective and that we are not a threat.”
— Jeanna Norris, Plaintiff, Norris, et al. v. Samuel L. Stanley, Jr., et al.

“It’s not just that it’s scary. It’s frustrating. It’s belittling to have these sorts of petty little tyrants standing between me and my doctor on what is an incredibly important and personal choice that can affect the entire rest of your life and health.”
— Todd Zywicki, Plaintiff, Professor Todd Zywicki v. Gregory Washington, et al.

“We think that the courts are wrong to continue to apply Jacobson to this situation. Since Jacobson was decided, there’s been a growing recognition of the importance of people’s ability to decline medical treatments, which is what’s at issue here.”
— Jenin Younes, Litigation Counsel, NCLA

“It’s unacceptable that people are having their jobs threatened in order to get this vaccine. That’s called an unconstitutional condition. It’s taking something that’s your constitutional right, that is, the right to refuse a vaccination, the right to your bodily integrity, and it’s using something else that’s valuable to you: your job, your livelihood, and it’s trying to leverage that thing that is meaningful to you in order to force you to give up your constitutional right. And that is why NCLA is fighting against these vaccine mandates where this unconstitutional condition leverage is being used.”
— Mark Chenoweth, Executive Director and General Counsel, NCLA

For more information visit the case pages for Norris here and Zywicki here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (August 27, 2021) – Jeanna Norris is a supervisory Administrative Associate and Fiscal Officer at Michigan State University (MSU). She has naturally-acquired immunity to COVID-19 after recovering from the virus late last year. However, the university has threatened disciplinary action, even termination, if she and other employees do not comply with the school’s mandatory COVID-19 vaccination policy. Ms. Norris is challenging Michigan State’s unconstitutional “COVID Directives” for the Fall 2021 semester. Today, the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a class-action complaint and a preliminary injunction in the U.S. District Court for the Western District of Michigan on behalf of Ms. Norris and similarly situated individuals at MSU.

MSU first announced its “COVID Directives” for the Fall 2021 semester via email on July 30, and shortly thereafter on its website, alerting faculty, staff, and students that by August 31 they must have completed a full COVID-19 vaccine course or received at least one dose of a two-dose series, unless they obtain a religious or medical exemption. MSU’s policy specifically excludes natural immunity as a basis for a medical exemption.

Ms. Norris has fully recovered from COVID-19, and two recent antibodies tests demonstrate her robust immunity to reinfection. This status also means that Ms. Norris does not pose a threat to anyone else in the Michigan State community. Her immunologist, Dr. Hooman Noorchashm, has advised her that it is medically unnecessary to undergo vaccination at this point. Yet, if Ms. Norris follows her doctor’s advice and elects not to take the vaccine, she faces adverse disciplinary consequences from her employer. This policy cannot reasonably be considered anything other than coercive.

The Supreme Court has recognized that a “forcible injection … into a nonconsenting person’s body represents a substantial interference with that person’s liberty[.]” Given the antibodies generated by her naturally-acquired immunity, MSU cannot claim a compelling governmental interest in overriding Ms. Norris’s personal autonomy. Thus, forcing her either to be vaccinated or to suffer adverse professional consequences violates her constitutional rights under the Ninth and Fourteenth Amendments. The irrationality of MSU’s policy is further highlighted by its accepting several vaccines that are far inferior to natural immunity, including the Janssen, Sinovac, and Sinopharm vaccines. MSU’s policy also constitutes an unconstitutional condition because it premises Ms. Norris’s enjoyment of some rights upon her surrendering other rights.

Even though Pfizer’s COVID-19 vaccine (now marketed as “Comirnaty”) received full FDA approval on Monday, the three vaccines used widely in the United States—the remaining Pfizer BioNTech doses, and the Moderna and Janssen vaccines—remain under Emergency Use Authorization (EUA). The EUA statute requires informed consent. Therefore, beyond its constitutional defects, MSU’s mandatory vaccination policy is irreconcilable with the objectives of the federal statute governing administration of medical products authorized for emergency use. Pursuant to the Supremacy Clause of the U.S. Constitution, a state or local law is preempted when it creates “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

NCLA asks the Court to enjoin enforcement of the policy on constitutional and statutory grounds.

NCLA released the following statement:

“Along with all too many Americans, Ms. Norris is facing an impossible dilemma: lose her job or receive a vaccine that is medically unnecessary for her. Michigan State has placed her, and others like her, in this position for no good reason, because she has robust immunity as established by the overwhelming scientific literature. Many public health authorities, the media, and the CDC have resisted the conclusion that natural immunity exists and is as protective or more so than the best available vaccines. Through Ms. Norris’s case, the integrity of the scientific process, which has been severely compromised during the pandemic, can be vindicated through the court system.”
— Jenin Younes, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document