Three Judge Panel Hears CHD v. Rutgers University
Members from the New Jersey and Pennsylvania chapters of CHD rallied in front of the US 3rd Circuit Court of Appeals on Tuesday to show their support for the student plaintiffs who oppose the violation of the right to informed consent and the right to refuse unwanted medical treatments. CHD’s electronic signage truck was there to help let everyone know we were in court.
Attorney Julio Gomez argued for CHD to overturn the dismissal of this case by the US District Court in Trenton, NJ. The judges first questioned Gomez over the nature of the state status of Rutgers University and whether it has the authority to make policy and act like a private institution. Rutgers attorney, Jeffery Jacobson, when asked this question later stated that they find that “Rutgers is an instrumentality of the state. That’s been our position all along.”
The questioning then turned to Jacobson v. Massachusetts, the go-to precedent set in 1905, which the judges see as supporting courts deferment to public health officials. Gomez stated to the judges that the Jacobson case was a decision on a vaccine, at the time, was 100 years old and not a novel vaccine with just months of testing. Furthermore, the vaccine in Jacobson was designed to prevent infection from the targeted disease, smallpox, something the COVID-19 shots fail to do. Furthermore, Gomez stated that the concept of informed consent has become deeply rooted in our nation’s history since that case.
Rutgers’ argument held fast to the CDC’s ACIP recommendation, although attorney Jacobson acknowledged the University had used other determinations. Judge Jordan asked, How do we know that these other determinations were not financial ones, as CHD has claimed in their original complaint? Rutgers has a profitable and expanding vaccine trial and development business that centers on the COVID-19 vaccines.
The judges appear to support this point of fact alleged by CHD in that the law must allows this claim to be reviewed, but it was denied by the lower court’s dismissal. Judge Jordan restated CHD’s claim that “Rutgers won’t engage with us (CHD) on the standard, which is ‘accept our assertions as true, and they said they didn’t act in good faith. They’re acting under a conflict of interest; the real reason they’re doing this is not because of the health of the students; it’s for these other nefarious reasons”.
The biggest fumble of the day was when Judge Jordan asked Rutgers’ counsel why the University only mandated the shots for students and left staff and faculty out of the mandate equation. Judge Jordan asked Jacobson, “What’s the rational basis for treating faculty and staff differently from students?” Jacobson stated that there was a regulatory reason why they couldn’t do that. The judge then asks what the change was? Jacobson fell silent and then said, “It’s not coming to me, your honor, but there was a federal government shift.”
The Judge then said “Your rational basis was in essence what he (Biden) said” “You have to agree that nothing in the world of viruses cares whether you are a professor or whether you’re a student. So if you thought, Oh my gosh, we have to do this to stop transmission; we have to make people get vaxxed to stop transmission, you know, this COVID-19 virus doesn’t make distinctions based on titles.”
Jacobson tried to defend his position by claiming that the faculty were subject to collective bargaining, at which Judge Jordan shot back. “The virus doesn’t care about union rules either, does it?”
The judge’s ruling may take months to reach. Attorney Gomez wishes it to be sent back to the US District Court, which will be the best place to find discovery into Rutgers internal decision-making and how the University went from first making a public statement that they would not mandate the COVID-19 vaccine to two months later announcing that they have mandated it. If the case is dismissed again, CHD plans to appeal to the US Supreme Court.