567 F.Supp.3d 1230
D. Or.2021Background:
- Plaintiffs: 42 named individuals (healthcare workers, teachers/school staff, one state employee) challenged Oregon vaccine requirements issued by Governor Brown and the Oregon Health Authority requiring covered workers to be vaccinated or obtain medical/religious exceptions by October 18, 2021, or face employment consequences.
- Regulatory facts: Pfizer–BioNTech’s mRNA vaccine was distributed under an EUA beginning December 2020; FDA licensed the same formulation as COMIRNATY on August 23, 2021 and continued the EUA for certain uses and excess labeled product; FDA/CDC state the products are materially identical and interchangeable.
- Claims: Plaintiffs sought a TRO and alleged (1) substantive due process violation (coercion into experimental medical treatment) and (2) Privileges or Immunities Clause violation under 42 U.S.C. § 1983; (3) Supremacy Clause preemption/21 U.S.C. § 360bbb‑3(EUA informed consent); and (4) violation of Oregon statute ORS § 431.180.
- Procedural posture: Plaintiffs moved for a temporary restraining order; the State opposed; the court held an expedited hearing and took judicial notice of public vaccine records.
- Outcome summary: Court rejected plaintiffs’ jus cogens/Nuremberg‑Code theory, applied Jacobson/rational‑basis review, found plaintiffs unlikely to succeed on merits, concluded most asserted harms were compensable (not irreparable), and denied the TRO; the state‑law claim could not obtain federal injunctive relief because of Eleventh Amendment constraints.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review / jus cogens | Vaccine mandate coerces experimental treatment; international jus cogens/Nuremberg norms require "no derogation" strict review | Vaccine identical to FDA‑approved product; plaintiffs fail to meet exacting jus cogens showing; traditional constitutional framework governs | No jus cogens application; Jacobson-era rational‑basis review applies |
| Substantive due process (coerced experiment) | Mandate forces plaintiffs into experimental medical treatment violating liberty | Orders are public‑health measures rationally related to protecting patients, schools, and healthcare capacity | Plaintiffs unlikely to show state action "shocks the conscience"; due process claim fails under rational basis |
| Privileges or Immunities Clause | Right not to be coerced into experimental treatment is a fundamental privilege | Clause protects narrow federal rights; plaintiffs cite no federal-character right | Claim fails; Privileges or Immunities not applicable to asserted right |
| Supremacy Clause / EUA informed consent | EUA statute requires informed‑consent conditions and forbids mandates that conflict | EUA informed‑consent duties vest with HHS and vaccine administrators; Supremacy Clause not an independent cause of action; information provided satisfies EUA conditions | Plaintiffs unlikely to prevail; no preemption or enforceable Supremacy‑Clause claim against state defendants |
| ORS § 431.180 (state statutory claim) | State orders unlawfully interfere with choice of treatment under Oregon law | Eleventh Amendment bars federal courts from ordering state officials to comply with state law | State‑law claim cannot support federal injunctive relief due to sovereign immunity |
| Irreparable harm / TRO necessity | Loss of jobs/benefits and forcible medical treatment cause imminent irreparable injury | Most harms are economic or speculative and thus compensable; many plaintiffs already have or can obtain exceptions; expedited posture limits relief | Plaintiffs did not show likely irreparable harm before a preliminary‑injunction hearing; TRO denied |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (plaintiff must show likelihood of success, irreparable harm, balance of equities, and public interest for preliminary relief)
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (state vaccination mandates reviewed under a rational‑basis public‑health standard)
- United States v. Struckman, 611 F.3d 560 (9th Cir. 2010) (justiciability and exacting proof required to import jus cogens norms into domestic litigation)
- City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (rational‑basis standard explained)
- County of Sacramento v. Lewis, 523 U.S. 833 (1998) (substantive due process requires conduct that "shocks the conscience")
- Zucht v. King, 260 U.S. 174 (1922) (affirming state authority to enforce vaccination requirements)
- Slaughter‑House Cases, 83 U.S. 36 (1872) (interpreting narrow scope of Privileges or Immunities Clause)
- Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984) (limits on federal courts enforcing state law against state officials)
- Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015) (Supremacy Clause does not by itself create a cause of action)
- Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) (TRO/preliminary injunction factors largely overlap)