Case: 2:21-cv-00105-DLB-EBA Doc #: 34 Filed: 09/24/21 Page: 1 of 20 - Page ID#: 1054

UNITED STATES DISTRICT COURT

CIVIL CASE NO. 21-105-DLB-EBA

CHRISTY BECKERICH, et al. PLAINTIFFS

v. MEMORANDUM ORDER

ST. ELIZABETH MEDICAL CENTER, et al. DEFENDANTS

*****************

This matter is before the Court on Plaintiffs’ Motion for a Temporary Restraining

Order and/or Preliminary Injunction. (Doc. # 7). Pursuant to the Court’s Order (Doc. #

8), the Motion has been fully briefed (Docs. # 15 and 22), and an Oral Argument was held

before the Court on Wednesday, September 22, 2021. (Doc. # 31). Alan Statman argued

for Plaintiffs, and Mark Guilfoyle argued for Defendants. Having heard the oral

arguments, and having reviewed the filings and accompanying affidavits and exhibits

submitted by both parties, the Court denies Plaintiff’s Motion for a Temporary Restraining

Order and/or Preliminary Injunction, for the reasons stated herein.

I. BACKGROUND

At its core, this case is about conditions of employment, and whether a private

employer can modify its employment conditions to require employees to be vaccinated in

response to an unprecedented global pandemic. Within that framework, the Court has

been asked to determine if the law requires preliminary enjoinment of a mandatory

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vaccination policy. For the reasons that follow, the Court concludes that it does not, and

denies the motion.

Plaintiffs are a group of healthcare workers, some past and others presently

employed by Defendants St. Elizabeth Medical Center and Summit Medical Group, d/b/a

St. Elizabeth Physicians (both hereinafter “St. Elizabeth”). (See Doc. # 7). Plaintiffs are

seeking injunctive relief from the Court to prohibit St. Elizabeth from enforcing a

mandatory vaccination policy it enacted in response to the COVID-19 pandemic. (See

id.) Under that policy, St. Elizabeth employees are required to “either receive a COVID-

19 vaccine or submit a request for a medical exemption or exemption for sincerely held

religious beliefs” before October 1, 2021. (Doc. # 1-17).1 The policy further states that

“[f]ailure to comply . . . without an accepted exemption may result in termination . . . .”

(Id.).

Plaintiffs have raised numerous causes of action under both state and federal law

in their Complaint. (Doc. # 1). But in support of their motion for injunctive relief, Plaintiffs

have concentrated on their positions that the vaccination policy infringes upon their

constitutional rights (Doc. # 7 at 3), and that Defendants have not approved religious and

medical accommodations to the vaccination policy in accord with the Americans with

Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). (Doc. #

22 at 11).

1 The cited document is the vaccination policy from St. Elizabeth Physicians, but
Defendants have noted that the policy is “substantially the same” for both St. Elizabeth Physicians
and St. Elizabeth Medical Center. (Doc. # 15 at 5 n.3). After reviewing both policies, the Court
agrees, and refers to them as one. The quote included here is contained in both policies.

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II. ANALYSIS

The decision to grant or deny injunctive relief falls solely within the discretion of the

district court. See Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008).

In the Sixth Circuit, the “same factors [are] considered in determining whether to issue a

TRO or preliminary injunction.” Id. Thus, the Court can evaluate both the temporary

restraining order and the preliminary injunction by the same analysis. See also id.

(applying the aforementioned factors to a temporary restraining order); Overstreet v.

Lexington-Fayette Urban Cnty. Gov’t., 305 F.3d 566, 573 (6th Cir. 2002) (applying the

same to a preliminary injunction).

The four factors used in evaluating temporary restraining orders and/or preliminary

injunctions are: (1) whether the moving party demonstrates a strong likelihood of success

on the merits; (2) whether the moving party would suffer irreparable harm without the

order; (3) whether the order would cause substantial harm to others; and (4) whether the

public interest would be served by the order. Id. (citing Leary v. Daeschner, 228 F.3d

729, 736 (6th Cir. 2000)). The four factors are not prerequisites that must be met, but are

interrelated concerns that must be balanced against one another. Ne. Ohio Coal. for

Homeless and Serv. Emps. Int’l Union v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006).

Lastly, temporary restraining orders and preliminary injunctions are “extraordinary and

drastic remed[ies], . . . never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 690-

91 (2008) (internal citations omitted). Rather, a party must demonstrate the legal factors

that necessitate the granting of a preliminary injunction or temporary restraining order—

if not fully, then at least to the extent that the factors cumulatively weigh in the moving

party’s favor. See id; see also Blackwell, 467 F.3d at 999.

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(a) Strong Likelihood of Success on the Merits

The first factor requires the moving party to demonstrate a “strong likelihood of

success on the merits,” Overstreet, 305 F.3d at 573. Oftentimes, this factor is

determinative, Wilson v. Williams, 961 F.3d 829, 837 (6th Cir. 2020), which warrants its

analysis being first and foremost. Plaintiffs are correct that at this stage, they are not

required to “prove [their] case in full,” and that “it is ordinarily sufficient if the plaintiff has

raised questions going to the merits so serious, substantial, difficult, and doubtful. . . .”

Ne. Ohio Coal. for the Homeless v. Husted, 696 F.3d 580, 591 (6th Cir. 2012). However,

“the proof required for the plaintiff to obtain a preliminary injunction is much more stringent

than the proof required to survive a summary judgment motion,” Leary, 228 F.3d at 739,

which merely requires establishing a “genuine issue of material fact.” Wilkins v. Baptist

Healthcare Sys., 150 F.3d 609, 613 (6th Cir. 1998). Thus, if Plaintiff can satisfy this factor

by merely raising questions – those questions must be exceptionally significant, and

grounded in actual legal disputes, not conjectures and conspiracies. Unfortunately for

Plaintiffs, here, they have not raised sufficiently significant questions where they seek to

do so, and they have otherwise not established a strong likelihood of success on any of

their claims.

(1) St. Elizabeth is not a state actor, and Plaintiffs’

In their Complaint and in their briefings on the instant motion, Plaintiffs have raised

numerous constitutional concerns. (See Doc # 1 ¶ 463, 570, 584 et seq., Doc. # 7 at 3;

Doc. # 22 at 7). Furthermore, in support of the instant motion, Plaintiffs have cited

numerous cases noting the importance of their constitutional concerns, primarily in terms

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of an allegedly irreparable injury. (See Doc. # 7 at 3 and 22 at 6-8). None of these cases,

however, were brought against a singular private, non-government actor.2

Notably, a well settled principle of constitutional law is that there exists “a line

between state action subject to Fourteenth Amendment scrutiny and private conduct

(however exceptionable) that is not.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass’n, 531 U.S. 288, 297 (2001) (citing Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488

U.S. 179, 191 (1988)). Because of that principle, generally known as the state action

doctrine, the Court sees Plaintiffs’ constitutional assertions as bearing more on their

likelihood of success than on the irreparable harm factor. Put simply, without establishing

that Defendants are state actors, Plaintiffs’ constitutional claims cannot stand, and thus

have zero likelihood of success on the merits.

The Supreme Court has made clear that “a private entity may qualify as a state

actor when it exercises ‘powers traditionally exclusively reserved to the state.’”

Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (quoting

Jackson v. Metro. Edison Co., 419 U.S. 345, (1974)). Furthermore, “the fact that the

government licenses, contracts with, or grants a monopoly to a private entity does not

convert the private entity into a state actor – unless the private entity is performing a

traditional, exclusive public function. The same principle applies if the government funds

2 Elrod v. Burns, 427 U.S. 347, 249 (1976) (Doc. # 7 at 3; brought by public employees
against county sheriff’s office); Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262, at *1
(S.D. Ohio July 22, 2013) (Doc. # 7 at 3; “The issue is whether the State of Ohio can discriminate
. . . .”) (emphasis added); Jacobson v. Mass., 197 U.S. 11, 24 (1905) (Doc. # 22 at 6; “The power
of the State [of Massachusetts] to enact this statute. . . .”) (emphasis added); Planned Parenthood
v. Casey, 505 U.S. 833 (1992) (Doc. # 22 at 6; brought against Pennsylvania governor and other
officials); Guertin v. Mich., 912 F.3d 907, 915 (6th Cir. 2019) (Doc. # 22 at 7; brought against
“numerous state, city, and private-actor defendants”); Washington v. Harper, 494 U.S. 210, 213
(1990) (Doc. # 22 at 8; “The central question before us is whether . . . the State may treat . . . .”)
(emphasis added).

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or subsidizes a private entity.” Id. at 1931-32 (internal citations omitted). Private

hospitals, no matter how much federal funding they may receive, are generally not state

actors for purposes of constitutional questions. See, e.g. Thomas v. Nationwide

Children’s Hosp., 882 F.3d 608, 612 (6th Cir. 2018). Plaintiffs’ attempts to turn

Defendants into state actors, based on Plaintiffs’ counsel’s statements during oral

argument that a hospital can become a “quasi-state actor” by how much government

funding it receives is unavailing. Not only is such a claim in direct conflict with controlling

precedent, Halleck, 139 S. Ct. at 1928, Plaintiffs have been unable to provide a case in

support of that assertion. For these reasons, Plaintiffs’ likelihood of success on the merits

of their constitutional claims is virtually nonexistent, weighing heavily against granting

injunctive relief.

(2) Plaintiffs have not established a strong likelihood of success on

In their Complaint, Plaintiffs have labeled their claim brought under the ADA as

their “strongest claim.” (Doc. #1 at 9). They are correct that under the ADA and Title VII,

private employers such as St. Elizabeth are required to offer medical and religious

accommodations to its mandatory vaccination policy. See, e.g., Norman v. NYU Langone

Health Sys., 492 F. Supp. 3d 154, 165 (S.D.N.Y. 2020) (“Doubtless, some reactions to

vaccines can be severe enough . . . to rise to the level of a disability under the ADA.”);

Fallon v. Mercy Cath. Med. Ctr., 877 F.3d 487, 490 (3d Cir. 2017) (analyzing a religious

objection to an employer’s vaccine mandate by Title VII framework).

Initially, the Court recognizes that employment discrimination claims brought under

the ADA and Title VII both require exhaustion of administrative remedies before the filing

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of a lawsuit. 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(e)(1). While both statutes’

requirements of administrative exhaustion cut against the likelihood of success on the

merits from the outset, “Title VII’s [administrative exhaustion requirement] is not

jurisdictional,” Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1846 (2019), and so the Court

will evaluate the likelihood of success on the merits of Plaintiffs’ ADA and Title VII claims

by focusing on the prima facie elements of each.

(i) ADA Claim

The Americans with Disabilities Act “broadly prohibits discrimination against a

qualified individual on the basis of disability as it applies to aspects of employment,

including hiring, advancement, and firing.” Hostettler v. College of Wooster, 895 F.3d

844, 848 (6th Cir. 2018). Put simply, the ADA requires employers to provide disabled

employees with “reasonable accommodations” to avoid discrimination. See, e.g., Kleiber

v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). With specific respect to

vaccination mandates, the Equal Employment Opportunity Commission has advised

employers that the ADA does require employers to provide a process by which a disabled

employee can seek a medical exemption to a COVID-19 vaccine requirement. (Doc. #

15-6 at 33). Thus, if an employer does not provide reasonable accommodations to

disabled employees, an employee has an actionable claim under the ADA. Kleiber, 485

F.3d at 868.

Here, as their “strongest claim,” Plaintiffs have asserted that in violation of the

ADA, Defendants have “corrupted” the process by which they are required to provide

reasonable accommodations to disabled employees. (Doc. # 1 at 9). Plaintiffs also

assert that Defendants have provided them with no right to appeal the denial of a

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requested exemption. For the reasons that follow, Plaintiffs have failed to demonstrate a

strong likelihood of success on an ADA violation claim against Defendants.

“A person seeking relief under the ADA for termination must establish (1) that she

is a disabled person within the meaning of the Act, (2) that she is qualified to perform the

essential functions of her job with or without reasonable accommodation, and (3) that she

suffered an adverse employment decision because of her disability.” McKay v. Toyota

Motor Mfg., U.S.A, Inc., 110 F.3d 369, 371 (6th Cir. 1997) (internal citations omitted). The

ADA defines “disability” to include “ a physical or mental impairment that substantially

limits one or more of the major life activities of [the affected] individual.” 42 U.S.C.

§ 12102(2)(A).

A court’s role in assessing an ADA claim is “’whether [employers] have complied

with their obligations and whether discrimination has occurred’, not whether an

individual’s impairment is a disability.” Hostettler, 895 F.3d at 853 (quoting 29 C.F.R.

§ 1630.2(j)(1)(iii). In this case, Plaintiffs simply have not shown that Defendants have not

complied with the ADA in providing necessary medical accommodations to the

vaccination requirement. The following table shows the status of Defendants’ processing

of medical accommodations through September 21, 2021, provided by Defendants at oral

argument.

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MEDICAL EXEMPTIONS

Requests Received 232

Granted Fully 31 13.36 %

Granted Deferments 143 61.64 %

Denied 34 14.66 %

Pending 24 10.34 %

Of 232 requests received by Defendants for medical accommodations, they have

fully granted 31 requests, granted 143 deferment requests, denied 34 requests, and have

24 pending requests. These statistics reveal that Defendants have either granted full

exemptions or granted deferments to 75 percent of employees who have requested a

medical accommodation to the vaccine requirement.

In support of the allegedly “corrupt” process, Plaintiffs posited at oral argument that

it is an apparently common practice of defense attorneys to “poach” members of a class

of plaintiffs into cooperating with the defendants, so that the defense counsel can show

an earnest effort in making accommodations. The Court is not convinced. In granting 31

medical exemptions and in granting 143 deferments, Defendants have granted more

medical accommodations than there are Plaintiffs in this case. In their Reply in support

of the instant motion, Plaintiffs attest that Defendants are misrepresenting the number of

applications for religious accommodations, writing that “[they] understand over 5,000”3

3 Defendants attested at oral argument that they have approximately 11,000 employees,
and that approximately 971 had requested either a medical or religious exemption, representing
approximately 11 percent of their workforce.

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medical and religious exemptions have been filed. (Doc. # 22 at 3). However, Plaintiffs

provide no evidence in support of that assertion.

Furthermore, no Plaintiff in this case has suffered an adverse employment decision

because of a disability, which is the third element of a prima facie case under the ADA.

In fact, Plaintiff April Hoskins has received a medical exemption, and another Plaintiff,

Veronica Crump, was approved for a medical exemption after initially being denied a

religious exemption. (Doc. # 32, Plaintiffs’ Exh. 1). The complete lack of adverse

employment effects suffered by Plaintiffs inhibits their ability to establish a prima facie

case under the ADA. In the absence of the claim’s prima facie elements, their ADA claim

has very little likelihood of success, and accordingly, Plaintiffs have not shown a strong

likelihood of success on the merits with respect to their ADA claim.

(ii) Title VII Claim

Much like the ADA, Title VII makes it unlawful to discriminate against an employee,

but on the basis of religion, instead of disability. See 42 U.S.C. § 2000e-2(a). The statute

broadly defines “religion” to mean “all aspects of religious observance and practice, as

well as belief.” Id. at § 2000e-2(j). “The analysis of any religious accommodation case

begins with the question of whether the employee has established a prima facie case of

religious discrimination.” Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987),

cert. denied, 485 U.S. 989 (1988). To establish a prima facie case of religious

discrimination, a plaintiff must show that (1) she holds a sincere religious belief that

conflicts with an employment requirement; (2) she has informed the employer about the

conflicts; and (3) she was discharged or disciplined for failing to comply with the conflicting

employment requirement. Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007).

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Applied to the relevant facts here, those elements would require a plaintiff to show

(1) a sincere religious belief in conflict with the vaccine requirement; (2) that she informed

Defendants of the conflict by filling out a religious exemption form, and (3) that she was

discharged or disciplined for failing to comply with the requirement. After a prima facie

case is established, a burden shifting framework is applied to adjudicate the claim on its

merits. Tepper, 505 F.3d at 514. But in the absence of a prima facie case, a claim has

no likelihood of success on the merits – let alone a strong likelihood of success.

In this case, Plaintiffs have failed to even suggest that they could raise a prima

facie case of religious discrimination, weighing against the granting of injunctive relief.

According to a document provided by Plaintiffs at oral argument, 11 of the 40 Plaintiffs

have been granted religious exemptions to the vaccine requirement and thus will not be

required to obtain the vaccine. (Doc. # 32, Plaintiff’s Exhibit 1). Furthermore, according

to the same document, no Plaintiff has been denied a religious exemption, and only one

was marked still pending (id.), but corroborating documents provided by Defendants show

that even the pending religious exemption has been granted. (Doc. # 32, Defendants’

Exh. 1). Because none of the Plaintiffs in this case have been denied a religious

exemption, they are unable to establish the third element, which requires discharge or

discipline from their employer.

Furthermore, with respect to the second element, to the extent that there are

Plaintiffs who have not sought a religious exemption, they have not informed or notified

their employer about a potential religious conflict. In reference to one of the granted

religious exemptions, Plaintiffs state that “The applicant’s beliefs are shared by many,

many Christians, and . . . Defendants should be granting vast numbers of similar

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requests.” (Doc. # 22 at 11). The below chart summarizes the current status of

Defendants’ processing of religious exemptions, as of September 21, 2021, and based

on Defendants’ attestations at oral argument.

RELIGIOUS EXEMPTIONS

Requests Received 739

Granted 425 57.51 %

Denied 39 5.28 %

Pending 275 37.21 %

As Plaintiffs have failed to show a strong likelihood of success on their claims of

religious discrimination under Title VII, this factor does not support the granting of

injunctive relief.

(b) Irreparable Harm by the Moving Party

Irreparable harm is an “indispensable” requirement for a preliminary injunction, and

in the absence of irreparable harm, injunctive relief cannot be granted. D.T. v. Sumner

Cnty. Schs., 942 F.3d 324, 326 (6th Cir. 2019). Furthermore, an inquiry into irreparable

harm is focused on “the group for whom the [policy] is a restriction, not the group for whom

the [policy] is irrelevant.” Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833, 894

(1992). Thus, in this case, the Plaintiffs need to show “certain and immediate” harm, not

“speculative or theoretical” harm that would result in the absence of granting injunctive

relief. Memphis A. Philip Randolph Inst. v. Hargett, 978 F.3d 378, 391 (6th Cir. 2020)

(quoting D.T., 942 F.3d at 327 (internal quotations omitted)). Here, Plaintiffs have failed

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to show that irreparable harm will result in the absence of injunctive relief, weighing

heavily against the granting of injunctive relief.

First, for an injury to be irreparable, the injury resulting from the denial of injunctive

relief cannot be “fully compensable by monetary damages.” Overstreet, 305 F.3d at 578.

Furthermore, loss of employment is not considered to be an irreparable injury. See, e.g.,

Aluminum Workers Int’l. Union, AFL-CIO, Loc. Union No. 215 v. Consol. Aluminum Corp.,

696 F.2d 437, 443 (6th Cir. 1982).4 Loss of employment is not irreparable because it is

fully compensable by monetary damages. See Hayes v. City of Memphis, 73 F.App’x

140, 141 (6th Cir. 2003). In fact, wrongful termination claims exist for that very reason—

whether brought under the ADA, Title VII, or some other state or federal law, a wrongfully

terminated plaintiff can receive monetary damages to compensate their loss of

employment. In this case, the remaining Plaintiffs who have not sought accommodations

recognize that they may be terminated from employment. (Doc. # 8).

However, Plaintiffs also assert that injuries arising from “their constitutional right to

privacy, their [in]ability to obtain employment in any other appropriate job, and emotional

and physical wellbeing” establishes irreparable injury. (Id. at 8-9). As previously stated,

constitutional rights are not at question here, as Defendants are not state actors. See

supra Part II(a)(1). Thus, Plaintiffs’ “constitutional right to privacy” falls short of

establishing irreparable harm. With respect to an inability to obtain other employment,

Plaintiffs themselves have shown that at least one Plaintiff has, in fact, been able to obtain

another job after voluntarily leaving employment with Defendants. (Doc. #13-1 at 38,

Affidavit of Erin Marshall). Otherwise, emotional injuries stemming from wrongful

4 See also Doe v. Ronan, No. 1:09-CV-105, 2009 WL 10679456, at *2 (S.D. Ohio Apr. 20,
2009) (“It is well settled law that the loss of employment is not irreparable harm.”).

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termination claims are routinely compensated by monetary damages in this Court and in

courts across the country. Lastly, with respect to the “national consequences” referred to

by Plaintiffs in their reply (Doc. # 22 at 1) and with respect to the broader implications on

the community implied by Plaintiffs’ counsel at oral argument, those concerns are

irrelevant to this question, as the irreparable harm suffered in the absence of injunctive

relief must be actually suffered by the plaintiffs in question. Casey, 505 U.S. at 894.

Lastly, no Plaintiff in this case is being forcibly vaccinated. Guertin v. Michigan,

912 F.3d 907 (6th Cir. 2019), relied upon heavily by Plaintiffs, dealt with the “right to bodily

integrity” with respect to access to clean drinking water in a case against the Michigan

state government. Guertin cites forcible injection cases, including Winston v. Lee, 470

U.S. 753 (1985), which involved the government seeking a warrant to surgically remove

a bullet from someone’s chest, and Washington v. Harper, 494 U.S. 210 (1990), which

involved an inmate being forcibly injected with antipsychotic drugs that had known side

effects. Guertin refers to the forcible injections as a “foreign substance,” in analogizing

the forcible vaccination cases to its own issue. 912 F.3d at 919. To be clear, though, the

“foreign substance” at issue in Guertin was lead contamination of the municipal drinking

water in Flint, Michigan. Id. at 915. The Guertin plaintiffs and other Flint residents bathed

in and drank the lead-contaminated water without knowledge of its contamination, and

suffered from lead poisoning as a result. Id. Their hair fell out, they developed rashes,

they tested positive for E. coli, many died from Legionnaire’s Disease, and children in

their community had lethally-high levels of lead in their blood. Id. Here, no Plaintiff is

being imprisoned and vaccinated against his or her will. Nor is any Plaintiff unknowingly

ingesting lead-contaminated water. Rather, these Plaintiffs are choosing whether to

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comply with a condition of employment, or to deal with the potential consequences of that

choice. Even if they believe the condition or the consequences are wrong, the law affords

them an avenue of recourse – and that avenue is not injunctive relief on this record. Thus,

no Plaintiff in this case will suffer irreparable harm, as that term has been clearly defined

by the law, in the absence of injunctive relief.

(c) Substantial Harm to Others and Public Interest Factors

The last two factors in the injunctive relief framework involve the interests of

nonparties, whereas the first two factors deal with the interests of the parties in the lawsuit.

Oftentimes, balancing these two factors against the first two is referred to as “balancing

equities.” Entm’t Prods., Inc. v. Shelby Cnty., 588 F.3d 372, 395 (6th Cir. 2009).

Specifically, the equities being balanced are private equities and public equities, which

have both been prominently raised in this case.

The “greater good” is a somewhat vague concept. In today’s world, determining

the “greater good” depends on whom you ask. Plaintiffs here suggest that perhaps, the

greater good is not that important to us at all, as it is not mentioned in the Bill of Rights,

and as it has nothing to do with individual liberties. (Doc. # 22 at 4). To the contrary,

Defendants suggest that the greater good in this case has to do with “the thousands of

people . . . who will benefit from additional vaccinations in the community[.]” (Doc. # 15

at 15). Still, it is not lost on the Court that Plaintiffs also believe their case will “help save

these workers, and by extrapolation, this country.” (Doc. # 1 at 7). So perhaps, the best

way to categorize the Plaintiffs’ position on the greater good is not that it is unimportant,

but rather, that their individual liberties are more important.

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Specifically, Plaintiffs believe that their individual liberties include a right to be

employed by a private hospital, and without that employment being conditioned upon their

receiving of a COVID-19 vaccine. No matter any individual stance on COVID-19, every

person, including the parties in this case, can agree that ending the COVID-19 pandemic

is in our collective best interest—and in the public’s best interest, as well, for purposes of

balancing equities.

The point at which we all start to diverge, however, is where we begin to discuss

how to end the pandemic. Some, such as the affiants provided by Plaintiffs, believe that

the best way to end the pandemic is to simply return to life as usual and let natural

immunity take its course. (Doc. # 1-10 at 2-3). Defendants, however, made their own

choice about how to end the pandemic – they chose to require their employees to get

vaccinated, to “assist our community in becoming the healthiest in America and to

safeguard the health and well-being of associates, [their] patients, visitors, and others

who spend time in [their] facilities.” (Doc. # 15-9 at 2). Plaintiffs, in opposition, believe

that their individual choices about the pandemic—their individual liberties—should

override Defendants’ choice to require vaccination of their employees, in furtherance of a

goal to protect its business and its community. And thus, the question at hand returns to

the “greater good.” Is the “greater good” made up of many different individual liberties, is

it a singular collective liberty, or is it both?

For more than 200 years, the American courts have attempted to answer that

question. Justice Marshall wrote in Marbury v. Madison that “[t]he very essence of civil

liberty certainly consists in the right of every individual to claim the protection of the laws,

whenever he receives an injury.” 5 U.S. 137, 163 (1803). This Court recognizes that

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essence, and it accordingly celebrates Plaintiffs’ rights to zealously claim the protection

of the laws. But the Court is nonetheless limited to the law, and the law states that

vaccination mandates, both public and private, are permissible with appropriate

exceptions.

More than a century ago, Justice John Marshall Harlan, a great Kentuckian born

in this judicial district, wrote in Jacobson v. Massachusetts about a state-imposed

vaccination mandate:

But the liberty secured by the Constitution of the United States to every
person within its jurisdiction does not import an absolute right in each
person to be, at all times and in all circumstances, wholly freed from
restraint. There are manifold restraints to which every person is necessarily
subject for the common good. On any other basis, organized society could
not exist with safety to its members. Society based on the rule that each
one is a law unto himself would soon be confronted with disorder and
anarchy. Real liberty for all could not exist under the operation of a principle
which recognizes the right of each individual person to use his own . . .
regardless of the injury that may be done to others.

197 U.S. 11, 26 (1905). Jacobson and its holding have not been overturned by the

Supreme Court, and this Court will thus abide by it and its principles. Actual liberty for all

of us cannot exist where individual liberties override potential injury done to others. For

that reason, the state of Massachusetts was permitted to impose a vaccine mandate

without exception, and with a penalty of imprisonment, during the smallpox pandemic.

See id. The case before this Court deals with a private actor, and with no actual coercion.

Being substantially less restrictive than the Jacobson mandate, and being enacted by a

private actor, Defendants’ policy is well within the confines of the law, and it appropriately

balances the public interests with individual liberties. See, e.g., Valdez v. Grisham, No.

1:21-CV-783-MV-JHR, 2021 WL 4145746 (D. N.M. Sept. 13, 2021).

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Plaintiffs have made clear that they are suspicious about the efficacy and safety of

the COVID-19 vaccines. They have also presented the opinions of medical professionals

who share the same suspicions. But unfortunately, suspicions cannot override the law,

which recognizes Defendants’ right to set conditions of employment. In Jacobson, the

Supreme Court “emphasized that the ‘possibility that the belief [in the efficacy of vaccines]

may be wrong, and that science may yet show it to be wrong’ was ‘not conclusive; for the

legislature has the right to pass laws which, according to the common belief of the people,

are adapted to prevent the spread of contagious diseases.’” Valdez, 2021 WL 4145746

at *6 (quoting Jacobson, 197 U.S. at 35). Furthermore, as is the case here, the Jacobson

plaintiffs also presented the opinions of medical professionals in support of their case.

But nonetheless, the Supreme Court “considered and rejected the defendants ‘offers of

proof’ of ‘those in the medical profession’” who cast doubt on the efficacy of smallpox

vaccines, in favor of a prevailing public interest. Id.

More plainly, the Supreme Court in Jacobson upheld state legislative action in the

face of doubt (from both laypeople and professionals) on the efficacy of the smallpox

vaccine, because the state had a rational basis for its decision—preventing the spread of

contagious diseases. See Jacobson, 197 U.S. at 35. That holding still stands, and if

legislative action to prevent the spread of contagious diseases must be upheld, even in

spite of doubt—and in spite of individual liberties—then private action must be upheld,

too, because “[i]ndeed, ‘this case is easier than Jacobson.’”5 Valdez, 2021 WL 4145746

at *8 (quoting Klaassen v. Trs. of Ind. Univ., 7 F.4th 592, 593 (7th Cir. 2021).

5 In the alternate, even if this case were not an “easier case” than Jacobson and state action
were present, St. Elizabeth would still have a rational basis for its policy, in the same way as the
state of Massachusetts did in 1905 – preventing the spread of contagious diseases. Jacobson,
197 U.S. at 35.

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In these cases “easier” than Jacobson, which deal with private, non-state actors,

courts have rationalized that each of us trade off our individual liberties every day in

exchange for employment. Alongside Judge Easterbrook in the Seventh Circuit, “[w]e

assume with plaintiffs that they have a right in bodily integrity. They also have a right to

hold property.” Klaassen, 7 F.4th at 593. Yet, to work at St. Elizabeth, Plaintiffs agree to

wear a certain uniform, to arrive at work at a certain time, to leave work at a certain time,

to park their vehicle in a certain spot, to sit at a certain desk and to work on certain tasks.

They also agree to receive an influenza vaccine, which Defendants have required of their

employees for the past five years. These are all conditions of employment, and “every

employment includes limits on the worker’s behavior in exchange for his remuneration.”

Bridges v. Houston Methodist Hosp., No. H-21-1774, 2021 WL 2399994, at *2 (S.D. Tex.

June 12, 2021). If an employee believes his or her individual liberties are more important

than legally permissible conditions on his or her employment, that employee can and

should choose to exercise another individual liberty, no less significant – the right to seek

other employment.

Finally, and in close, the Court recognizes that the COVID-19 pandemic has

become unfortunately political and vitriolic, on all sides. But the Court expressly refuses

to adjudicate the political assertions raised in this case. Irrespective of politics, the Court

has evaluated and analyzed the law and the legal arguments raised by both sides.

Unfortunately for Plaintiffs, they have not stated a viable legal theory in support of

injunctive relief, as each of the factors required to be considered, individually and

collectively, weigh against the denial of injunctive relief.

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Accordingly, IT IS ORDERED that Plaintiffs’ Motion for a Temporary Restraining

Order and/or Preliminary Injunction (Doc. # 7) is DENIED.

This 24th day of September, 2021.

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