Court filing
Hearing Transcript — Preliminary Injunction — Klaassen v. Indiana University (N.D. Ind.)
Filed July 13, 2021 in Klaassen v. Trustees of Indiana University; one of 26 filings from this case.
Record facts
| Court | U.S. District Court for the Northern District of Indiana |
|---|---|
| Filed | 2021-07-13 |
U.S. District Court for the Northern District of Indiana · No. 1:21-cv-00238-DRL-SLC · Doc. 41 · 2021-07-13 · Docket on CourtListener
Full text
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
RYAN KLAASSEN, et al., )
) CAUSE NUMBER 1:21cv00238
Plaintiffs,
)
)
vs
)
)
THE TRUSTEES OF INDIANA
)
UNIVERSITY,
)
) JULY 13, 2021
Defendant.
)
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE DAMON R. LEICHTY
APPEARANCES:
For the Plaintiffs:
MR. JAMES BOPP, JR.
MS. MELENA S. SIEBERT
The Bopp Law Firm
The National Building
1 South Sixth Street
Terre Haute, Indiana 47807
For the Defendant:
MS. ANNE K. RICCHIUTO
MS. STEPHANIE L. GUTWEIN
Faegre, Drinker, Biddle & Reath
300 North Meridian Street, Suite 2500
Indianapolis, Indiana 46802
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
THE COURT: All right. This is Ryan Klaassen versus
the Trustees of Indiana University, 1:21cv00238. We're here
for purposes of the preliminary injunction motion and argument.
Good afternoon to counsel today.
I see we have Jim Bopp here for the students.
Mr. Bopp, good afternoon.
MR. BOPP: Thank you, Your Honor.
THE COURT: And also Melena Siebert.
Ms. Siebert, good afternoon.
MS. SIEBERT: Yes, Your Honor. Thank you.
THE COURT: And then we have Anne Ricchiuto and
Stephanie Gutwein here for the university.
Good afternoon to you both.
MS. RICCHIUTO: Thank you for having us. Yes.
THE COURT: Mr. Bopp, do you have any of your clients
here for the hearing today?
MR. BOPP: I do, Your Honor.
THE COURT: Would you like to introduce those
students?
MR. BOPP: I'd be pleased to.
Jamie Carini.
THE COURT: Ms. Carini, good afternoon.
MS. CARINI: Good afternoon.
MR. BOPP: Daniel Baumgartener, that is, if you grant
the substitution of his parents.
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
THE COURT: No objection to that, right?
MS. RICCHIUTO: Correct.
THE COURT: All right. So the Court will grant the
motion to substitute for Mr. Baumgartener and welcome him to
today's hearing.
Good afternoon, sir.
MR. BAUMGARTNER: Good afternoon.
MR. BOPP: And Margaret Roth.
THE COURT: Ms. Roth, good afternoon.
MS. ROTH: Good afternoon, Your Honor.
THE COURT: All right. Does the university have any
representative present today?
MS. RICCHIUTO: We do, Your Honor. We have two of
our counsel. We have Claire McRoberts and Tom Gannon.
THE COURT: Mr. Gannon and Ms. Roberts -- McRoberts.
Is it McRoberts or Roberts?
MS. RICCHIUTO: Mc, yes.
THE COURT: Ms. McRoberts and Mr. Gannon, good
afternoon to you both.
MS. RICCHIUTO: Thank you.
MS. McROBERTS: Good afternoon.
THE COURT: All right. Very good.
All right. With introductions out of the way, just a
couple housekeeping matters on my end before we commence
today's proceeding.
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
I did receive from the parties last week your
stipulation, if I can call it that, concerning an evidentiary
hearing. It seems that the parties are still in agreement that
there's no need to duplicate what you would otherwise or have
already submitted by way of the written record in this case.
Is that still the view of the students today,
Mr. Bopp?
MR. BOPP: It is, Your Honor.
THE COURT: And for the university, Ms. Ricchiuto?
MS. RICCHIUTO: Yes, Your Honor.
THE COURT: All right. I do agree that so long as
counsel are in agreement that the record that I have, which is
extensive, if that were to be merely duplicated by the oral
testimony I would receive today, there's no need to waste
anyone's time in that regard.
In terms of the exhibits, let me turn to that subject
now. By my count -- and counsel check me to make sure that I
have my fingers on everything that you have submitted to me, as
there are at least, by my count, more than a hundred
exhibits -- there are Exhibits 100 to 129, 200 to 259, and 300
to 321.
Do I have the count right, Mr. Bopp?
MS. SIEBERT: Yes.
THE COURT: Ms. Gutwein (sic), thank you.
Ms. Ricchiuto?
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
MS. RICCHIUTO: Yes.
THE COURT: All right. Have the parties agreed to
the admission of all of these exhibits, Mr. Bopp?
MR. BOPP: As far as I know.
THE COURT: All right. Any objections to any of the
exhibits that are submitted?
MR. BOPP: No.
THE COURT: Ms. Ricchiuto?
MS. RICCHIUTO: I think, Your Honor, that we don't
want to spend your time today necessarily hashing through
evidentiary objections. I think that what makes the most sense
to me is that they can be stipulated as to admissibility, and
then obviously Your Honor can give them whatever weight you
deem appropriate. That seems like the most efficient way to
handle it to me.
THE COURT: All right. So all those exhibits are
admitted. And, yes, you're right. I will ultimately decide,
once I've reviewed them all, what weight to give the various
exhibits. And I realize there is much in the way of deposition
testimony in there, too.
It occurred to me, as I started to review these
yesterday afternoon and last evening, that there are some
duplicates in here. I think counsel made an effort to try to
streamline some of these exhibits to correspond perhaps with
your presentation today, so I recognized that there were some
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
duplications -- "excerpting" perhaps is the better word -- and
I took that into account as I was reviewing.
I have, just so the parties are aware, read all your
briefs. I am familiar with the law. I have reviewed a great
mass of the exhibits and deposition testimony. I must confess,
I have not reviewed it all thus far. But I was up until the
wee hours of the morning last night reviewing as much as I
could take before I had to sleep, and then I reviewed some more
this morning.
So if there are -- I say that only to share with you
that if there are particular excerpts that you think are
important, say in the deposition testimony or in these
PowerPoint presentations or in the medical studies or the
declarations from either Dr. McCullough or Dr. Beeler, it would
be helpful that you point those out to me to facilitate my
review today. But I have waded through a great majority of the
exhibits at this time.
All right. Other than the motion to substitute,
which I've already granted, that's all I had on my agenda,
other than to set out a plan for today's hearing, in light of
the fact that we are going to hear argument and no new
evidence.
Mr. Bopp, how much time were you anticipating needing
for your remarks?
MR. BOPP: An hour, and I'd like 20 minutes for
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
rebuttal.
THE COURT: All right. Ms. Ricchiuto?
MS. RICCHIUTO: I don't exactly know what Jim's going
to say, but I've got a pretty good idea, so I think probably
roughly an hour is going to be sufficient for me, as well.
THE COURT: All right. I'll give both sides an hour
and 20 minutes. I'll give you an hour on the open and 20
minutes in rebuttal. I gave you a little extra time there only
because I probably will have some questions along the way. And
so to the extent I interfere with your otherwise prepared
remarks, you should still have sufficient time to get through
everything today.
All right. That's all I had on my agenda.
Mr. Bopp, anything else by way of preliminary matters
before we begin?
MR. BOPP: Nothing else, Your Honor.
THE COURT: Ms. Ricchiuto, anything else for the
university?
MS. RICCHIUTO: No, Your Honor.
THE COURT: All right. Mr. Bopp, it's your motion.
MR. BOPP: Thank you, Your Honor.
May it please the Court.
First, thank you for accommodating the expedited
nature of this case. I know it's an imposition, and we
appreciate you addressing these matters in an expedited way.
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
I have already introduced the students. But since
we've referred to them as students, I'd like to also note that
they're adults. Many times we think of students as children,
but these are college-age students. All the plaintiffs now, as
of Sunday, reached the age of majority. And the vast majority
of students at Indiana University are all adults. So we really
don't think we have the need to discuss the authority of a
college or a school in a parents' capacity because these are
adults.
First, I'd like to start with the context in which
this mandate was issued.
First, the mandate was issued contrary to the
emergency use authorization by the FDA. That authorization
specifically requires that the provider do two things pertinent
to this. One is provide informed consent; and, two, provide to
the patient "option to accept or refuse" the vaccination. And
that's kind of inherent in the nature of this authorization and
doesn't really exist with respect to other forms of
authorization. And, of course, that legal requirement does not
apply to IU -- certainly they're not a health care provider in
this context -- but it obviously is contrary to that and
certainly to the policy under which vaccines such as this are
authorized.
Second, it is contrary to modern medical ethics. One
of the principal developments over the last several decades in
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
ethics has been the concept of voluntary, informed consent for
medical treatment of any kind, including whether it's research
or provision of normal medical care.
There are historical examples when this has not taken
place, and we in this modern era have rejected that, that
people can be required to take or unknowingly take medicines or
engage in research or anything without their knowledge and full
informed consent.
Of course, the mandate prohibits that consent, except
conditioned on, as I will get to, a severe punishment if the
person does not consent.
Third is contrary to any vaccinations that have been
historically required in three different ways.
First, the vaccinations currently required and
historically required have had decades of use so that the risks
were known, if there were any. And that takes you to the
second part, is none of these required vaccinations really have
any side effects except extremely, extremely rare. And they
are also given and prescribed to a vulnerable population. In
other words, those that are required for children when they go
to elementary school are all diseases that particularly
adversely affect children. So there is a -- they're a very
vulnerable population to the disease.
Of course, we're going to talk about Jacobson, but
the context of Jacobson in 1904 was the smallpox epidemic. And
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
the smallpox epidemic was -- smallpox was very virulent. And
from 1900 to 1976 when it was eradicated, finally, mercifully,
200 million people in the world died in that time period
because of that disease.
Now, as bad as COVID is -- and we agree it is bad.
We agree that it was a pandemic. We agree at the beginning
that stern measures were required, and in fact there was a
compelling interest at the beginning of this pandemic -- but,
so far, worldwide, four million people have died. So we have
orders of magnitude which -- and, of course, we have a much
larger population than they did in 1904. So the rate -- the
death rate of smallpox is astronomically larger worldwide than
the death rate of COVID.
Now, furthermore, the vaccine had been around for
decades and had been developed by -- it was found that another
form of pox called cowpox -- if a person had had cowpox, which
is a much, much milder form of pox, would be also immune from
smallpox. So based on that, they developed a way of infecting
people with cowpox. In fact, when I was young, that happened
to me. I still have the scar to prove it. And so that is how
it was developed, and it has basically no risk. And, of
course, smallpox was -- in fact, the whole population was
vulnerable to smallpox. So that's an example of such a
development.
Now, next, the mandate is contrary to CDC
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
recommendations. The CDC certainly recommends, as they should,
vaccines, and we would recommend them. But they do not mandate
them. They do not -- they do not recommend or suggest that
they ought to be mandated to any part of the population, much
less the least vulnerable, which, as I will describe, are
college children. And college-age people are the least
vulnerable. Those that are the most -- it goes up by age, in
fact geometrically goes up by age in terms of the adverse
effects of COVID if you get infected, until those over 85 have
a minimum of a 600 times greater risk of mortality and
morbidity from a COVID infection than do college students. But
nobody recommends they be mandated to be vaccinated.
It is also contrary to every state in the United
States, every county in the United States, and every city in
the United States that has issued any mandates regarding COVID.
None of them mandate any part of the population be vaccinated
at all.
Now, it is true, there are a few universities that
do, and there are a few employers that do. That is contrary to
all the Indiana state universities. No other state university
in Indiana mandates a COVID vaccination. Notre Dame does.
They're a private university. They're in a different posture.
But no public university in Indiana does so, including most
recently Purdue that has lifted all restrictions. So has the
State of Indiana virtually lifted all restrictions. So has the
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
vast majority of counties and cities, have lifted nearly
every -- not necessarily every, but the vast majority of
restrictions, because all of them recognize that we're at the
end stage of the pandemic where these sort of -- that would
otherwise be viewed as harsh measures, restrictive measures,
rights-violating measures are not being employed. In fact,
they're being lifted uniformly throughout the country.
THE COURT: But not yet?
MR. BOPP: I'm sorry?
THE COURT: But not yet, right? The State of Indiana
is not yet there. They've not lifted all restrictions,
correct?
MR. BOPP: Well, they did lift a whole bunch of them
in the last -- the issuance of the last emergency order.
THE COURT: The State of Indiana has not lifted all
restrictions, correct?
MR. BOPP: No. They have still some, but they're
very narrow. They lifted the mask mandate, social distancing
mandate, you know, the ones trying to stem the progress of the
disease, and they're very limited. And we set those out in our
brief.
THE COURT: And from the federal perspective, the
Secretary of Health and Human Services declaration of a public
health crisis hasn't been rescinded at this time, right?
MR. BOPP: Not that I know of.
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
THE COURT: So that's still in effect, as well?
MR. BOPP: Yes, but it doesn't require -- it doesn't
mandate vaccination, which is pertinent to this.
THE COURT: Well, I appreciate that. But the notion
that we are completely out of the woods hasn't been recognized
by either the highest authority here in the State of Indiana,
or one of the highest authorities in the State of Indiana, nor
by the authority on the federal government side who deals
specifically with these types of health issues, correct?
MR. BOPP: Well, yes. We're not -- it hasn't been
eradicated. That's true. COVID has not been eradicated.
However, as I will soon demonstrate to you, we are in an end
stage of the pandemic. We're not saying we're out of the
pandemic, but we're at the end stage. And you will soon see
the CDC recommendations that explain what should be done in a
situation like we find ourselves.
In other words, there are different measures that are
recommended based on the stage of the pandemic. You know, you
first find out about it, the recognition stage; then the
acceleration stage; and then the deceleration stage; and then
IU calls it, as you will soon see, the recovery stage. The CDC
calls it the transition stage. And it's much different in
terms of the response that is recommended and that IU's policy,
which unfortunately they didn't implement, recommends, as well.
Now, there are legal limits to IU's authority.
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
They're the government, and they're not a private university,
so the Constitution applies to them. And they're not dealing
with children; they're dealing with adults at the university.
And so their legal limits, in terms of what rights they can
violate, are limited by due process of law.
Now, IU, however, claims nearly unreviewable
authority to mandate vaccinations and other health measures
that they, in their judgment, think they are to do, and that's
regardless of whether we're in a pandemic or not. They claim
this authority every day, all day, for the rest of the time of
the world, regardless of the situation, even if there's a
pandemic that they're trying to address.
That sweeping level of authority is so contrary to
modern constitutional jurisprudence, it's breathtaking. What
government agency would ever make such a claim and believe that
they can willy-nilly violate rights and never be reviewed and
never have to demonstrate that there's any justification for
what they do?
And that is even under Jacobson, because there's an
exception to Jacobson -- there's an exception in Jacobson that
we think is applicable here, and I'll soon describe that.
So the task for this Court is to look at the current
situation, not add up all the deaths of a pandemic that has
gone like this, and now we're down here, but look at the
current situation and whether or not their mandate, which is
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
brand-new, is justified by the circumstances under the
appropriate level of scrutiny.
Now, we do know some things now that we didn't know a
year-and-a-half ago about the COVID virus, its risks, its
treatment, and the progress of the disease in the United
States, State of Indiana, and at IU. Well, these are all
things that the Court, in our opinion, must take into account
to determine whether or not, under the circumstances, the
vaccine mandate is required.
Now, the first thing we know is it affects age groups
differently, is that the youngest are the least affected, the
oldest are the most affected. But it isn't just, you know,
like a little bit. It is astronomically different.
I tendered to the Court our exhibits that I was going
to refer to in this presentation.
THE COURT: Mr. Bopp, are these the handouts we got
this afternoon?
MR. BOPP: Yes.
THE COURT: All right.
MR. BOPP: Yes.
Yeah, I had to kill more trees.
So, anyway, if you look at -- if you look at what is
Exhibit 243 -- and I hope it's on the top.
THE COURT: It is.
MR. BOPP: Okay.
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
-- you will see, on the upper left-hand corner, in
November of 2020, the CDC estimate of the infection fatality
ratio for the coronavirus. And you will see different rates at
ages 20 to 49, and then they have at 70. Well, the difference
in the rate -- and they're talking about death rate here -- is
that those in the age group above 70 have a 2,700 times greater
risk of death than those in the 20 to 49, so we're talking
astronomical differences.
Now, Dr. Carroll in his deposition agreed that the
number 600 times -- he would agree to the number 600 times
between college-age students and people over the age of 85. He
would agree 600 times greater risk of adverse effect.
Now, you can also look at this in absolute terms. We
presented a study of -- I forget now how many -- 50 or so
colleges, maybe more, and what the study found was one death
and 17 hospitalizations in the last year-and-a-half of
college-aged students from the COVID infection.
At IU, Dr. Carroll agreed that there was, they
believe, one death of IU students -- of an IU student in the
last year-and-a-half from the COVID infection.
THE COURT: And how many hospitalizations?
MR. BOPP: I don't know. I don't know.
And, of course, these numbers can be compared with
things like homicides, you know, for the last -- for a year in
this group, and that's 146; suicides, 143 -- and this is just
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for a year -- inflammatory heart, 13; congenital abnormalities,
11. So we're talking about, in either relative terms or in
absolute terms, something that is extremely rare, extremely
rare.
IU has 90,000 students, 90,000, in all of its
campuses, and --
THE COURT: Do we know the statistics related to IU's
experience for its other community members? You know, this is
not just about students, but there are faculty and staff and
employees who work at Indiana University who, every day, come
in contact with students.
MR. BOPP: Right.
THE COURT: So what is the experience vis-a-vis the
entire community at Indiana University and its campuses?
MR. BOPP: Well, I don't know about faculty and
students -- I mean faculty and staff. I am not representing
them. I didn't --
THE COURT: Shouldn't I consider that evidence, as
well, in running the calculous here, the constitutional
calculous?
MR. BOPP: Well, students are close -- they're more
close -- well, it depends on what you're thinking about. If
you're thinking about students need to be vaccinated in order
to protect other people, all right, well, I asked Dr. Carroll
about that -- he was the 30(b)(6) witness for Indiana
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University -- and he said it's not the purpose of this mandate
to protect these other people. The purpose is to protect IU
students; and that if other people in the community are
protected, well, that's a beneficial collateral effect, if that
is the case. But that is not the purpose of this. This is to
protect people in the IU community, which includes faculty and
staff, all to be vaccinated.
Now, the only other thing I know I could tell you
about is the vaccination rate among IU students is 75 percent
as of June of this year, and that was right after the mandate
was issued, that figure arose, and it was -- and, of course,
they -- of course, then, you know, campus was emptied out
because of Summer.
I understand that faculty and staff have a higher
vaccination rate than do the students. That's what I
understand. But, believe you me, I had enough to do than try
to figure that out.
All right. Now, second, the vaccination risk for the
population and for college -- there is a vaccination risk for
the population and for college-age students. And it appears,
even though, you know, things are just emerging, that they seem
to be at greater risk of an adverse effect than the general
population. So we may have an inverse in terms of the effect
of the vaccination. Rather than the fact of the adverse events
affecting older people more, it seems it is affecting younger
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people more.
And if you'll turn to the next exhibit, 257, you will
see, as of July 9, they report it through the VAERS system,
which is very well recognized, even though it has its
limitations, a system that has reported both various adverse
reactions and effects to 18 to 29-year-olds at the top,
including one death -- and this is in Indiana -- and at the
bottom is all ages in Indiana, and they report 123 deaths.
So there are known adverse effects to this vaccine,
as opposed to the other vaccines I described. I mean, as a
result, you know, there is a risk/benefit analysis that needs
to be done for anyone who is allowed to make a decision, to
give informed consent, to being vaccinated.
Now, another interesting statistic is that heart
inflammation has recently emerged, that college-age men
predominantly are having a reaction, which is a heart
inflammation. And for those that are 12 to 24 -- you know,
everybody does their statistics with different age ranges,
unfortunately -- for that age group, they have received 8.8
percent of all vaccines and, however, have suffered 52 percent
of the heart inflammation.
THE COURT: So is there any -- Mr. Bopp, is there any
authoritative peer-reviewed study that establishes a causative
link between the vaccine, any one of the vaccines approved
under EUA and heart inflammation?
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MR. BOPP: Not yet.
THE COURT: So the evidence we have today -- and I
realize that, much like the pandemic, the science as it
concerns COVID-19 and the vaccines is ever-evolving. What we
know today won't be what we know in 20 years -- but at least as
to what we know today, the evidence that associates a link
between heart inflammation and any one of the COVID-19
vaccinations is anecdotal?
MR. BOPP: Yes.
Now, there is -- and we have in our exhibits --
Hill's Causation, and it's well accepted.
THE COURT: It goes through several factors as to how
you go about determining causation?
MR. BOPP: Exactly.
And, of course, those that have used that, okay, see
a link, all right.
THE COURT: And one of those is temporal association?
MR. BOPP: Right.
THE COURT: Which is, in large measure, what this
anecdotal information is based on; do you agree?
MR. BOPP: In part, yes.
THE COURT: In other words, when there are reports in
the VAERS system, that is anecdotal evidence largely based on
this time association, the temporal association?
MR. BOPP: Uh-huh. That's one of the factors that is
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considered.
And, you know, of course, as we know, which bears on
the reasonableness of their mandate, this was emergency-use
authorization, was how this was approved. There weren't
long-term studies, even though they are being done now and
should be done by 2023. We will, I'm sure, know a lot more.
And we have seen in real time, you know, how the use of a
particular drug -- you know, as you go along in time, you find
out things. Because the heart inflammation association was not
even suspected and wasn't manifest at the beginning, you know,
say six months ago when they started using the vaccine. But
now it's emerging, and there are other problems emerging. I
don't want to say anything about it because I just heard it on
the news, but there's another concern about Johnson & Johnson
on causing an autoimmune disease. That's all I know. But
that's one of the realities of what we are dealing with, which
surely is why everyone else in the United States is not
mandating these vaccinations, you know, and letting people make
a choice, not assume risks by government mandate.
THE COURT: Don't the students have a choice here?
MR. BOPP: I'm sorry, sir?
THE COURT: Don't the students have a choice here?
MR. BOPP: Not --
THE COURT: They can attend Indiana University and
receive the vaccine, save for certain exemptions, which I'm
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sure we'll get into, or they can attend university elsewhere.
MR. BOPP: Yeah. That's IU's argument, of course.
And, of course, the problem with that is the Unconstitutional
Condition Doctrine that establishes that, if the government
conditions a benefit, and the benefit doesn't -- you know, you
don't have to be entitled to it in any way, in fact you don't
even have to violate your rights, in order to assert that, if
the government conditions a benefit on the waiver of a
constitutional right, that that itself is a violation of that
right.
Of course, Regan versus Taxation Without
Representation was well-known. The Koontz case recently
decided by the court lays out all the cases. That was an
opinion by Justice Alito that we cite in our brief -- in our
reply. It lays out the entire legal theory under which
conditioning a benefit on waiver of a constitutional right is
itself a violation of that right.
THE COURT: And, of course, in running that analysis,
we have to then define what the right is, right?
MR. BOPP: Yes.
THE COURT: So what is the right here?
MR. BOPP: To bodily integrity; to medical treatment
choice; and, in a couple of cases of our plaintiffs, to free
exercise of religion.
THE COURT: Well, the free exercise of religion, to
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be clear, concerns the face mask mandate, right?
I mean, there's two issues here. There's one related
to whether they have to take the vaccine, subject to certain
exemptions; and then there's the additional requirements?
MR. BOPP: Right.
THE COURT: And I realize the university has an
argument about whether those are really here in the case or
not. Mr. Bopp says they are, so I'm entertaining that.
So with respect to religious rights, that concerns
the face mask and the other additional requirements, right?
MR. BOPP: Yes. In other words, they are not getting
a true religious exemption because they have to now comply with
a second set of requirements that violates their religion, and
they can't get a waiver for those.
THE COURT: Right.
So coming back then to the vaccination -- I want to
focus on that, Mr. Bopp -- if we run the analysis under the
Unconstitutional Conditions Doctrine, we're really focused on
what specific right?
MR. BOPP: Well, I say all three of the ones are at
issue: Bodily integrity; medical treatment choice; and
religious freedom, in some instances.
Now, bodily integrity --
THE COURT: But there's a religious exemption. I'm
not sure I see why the religious choice, the exercise of
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religious choice, bears on the vaccination when there is an
exemption under this policy for --
MR. BOPP: But there's not an exemption to all the
religious objections.
See, this is like saying, you know, to a Muslim,
"We're not going to exclude you from our restaurant," okay,
"but we're going to make you eat pork if you come in," okay.
In other words, yeah, the initial requirement they're
exempted from. But what is imposed upon them is an equally
offensive violation of their religious beliefs that they cannot
get an exemption for, which means --
THE COURT: Wearing a mask?
MR. BOPP: Yeah.
-- which means that the exemption is phony. It's not
for religious objections. It's only for certain religious
objections.
And you can look at it another way. Have you ever
heard of a religious objection in which additional requirements
are imposed upon you that nobody else has to comply with? So,
I mean, I call that a penalty. You're being penalized for
getting an exemption.
THE COURT: What you call a penalty one might say is
enabling?
MR. BOPP: Is what?
THE COURT: Enabling. In other words, it's a
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benefit. This is a mechanism by which the university allows
people to exercise their religion.
MR. BOPP: Well, number one, you cannot condition a
benefit like going to the university on wearing a mask if it
violates your rights, and I'm explaining how it does, religious
right, and so --
Anyway, I'm losing my train of thought, where we're
at now, but --
THE COURT: Well, let me take you back to where I
started. I'll help you here. This is the unconstitutional
conditions analysis.
MR. BOPP: Uh-huh.
THE COURT: Let's focus on -- outside of the
religious freedom context, let's focus on this right to bodily
autonomy and the right to choose medical treatment or not.
MR. BOPP: Uh-huh. Sure.
THE COURT: Based on the law to date, nowhere does
the Constitution say that there is a fundamental right, or even
a right in that regard, though it has been recognized as a
liberty interest under the case law, at least assumed as one
under Cruzan, under Glucksberg, right? There are certain cases
that have recognized, or at least assumed, that that right has
existed as a liberty interest that then is protected by the due
process clause of the Fourteenth Amendment. Do you agree?
MR. BOPP: Right. And under a liberty interest, it
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would be subject to rational basis, which requires
justification and evidence and everything that IU says they
don't have to provide.
THE COURT: So let me make sure I understand this
right, Mr. Bopp.
So you agree that, under that analysis, that gets us
to rational basis review; it doesn't get us to strict scrutiny?
MR. BOPP: Well, I think -- no, I didn't mean that.
I think that a violation of bodily integrity requires strict
scrutiny.
THE COURT: Okay. You're going to have to help me
get there, because what I'm reading in terms of Glucksberg and
Cruzan and --
MR. BOPP: Those are the medical treatment cases.
THE COURT: Sure.
MR. BOPP: I'm talking about -- I'm talking about
contraceptives, abortion, those lines of cases, where bodily --
you know, the right to do with your body as you choose. I
mean, that's the way people --
THE COURT: So you want me to -- you want me to
expand the substantive due process rights that are recognized
today to make a new one?
MR. BOPP: No. No, but the bodily integrity right
has been recognized --
THE COURT: As a liberty interest, not as a
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fundamental right.
MR. BOPP: Only in the -- well, what I'm saying --
THE COURT: Is that correct?
MR. BOPP: No.
Abortion --
THE COURT: What case has recognized it as a
fundamental right, the right that you want to assert here today
on behalf of the students?
MR. BOPP: The line of cases starting with
Roe v. Wade is one, and that is --
THE COURT: Well, let's be very clear, Mr. Bopp. The
Supreme Court has been very specific about this. When we look
in the penumbra of substantive due process to determine what
rights exist there, that the right has to be clearly,
specifically defined.
MR. BOPP: Uh-huh.
THE COURT: It's not enough to say, "Well, there's a
right to private decisions within your home, and therefore
there is now this right to refuse a vaccine," right. You agree
with me; the case law doesn't make that leap or allow that
leap? Instead, when we're dealing with substantive due
process, we have to clearly define the right that we're going
to wrestle with today.
MR. BOPP: Understood, and that -- and that is the
application -- that would be an application of the -- of
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general rights, I agree; that you have to define properly the
application of that right; and then at that level of
specificity, the Courts determine whether or not it fits and is
fundamental.
THE COURT: So my question is a precise one.
MR. BOPP: Uh-huh.
THE COURT: The Bill of Rights were ratified in 1791.
The Fourteenth Amendment is approved in 1868.
Since that time, has there been a single case
anywhere in the country that has recognized the right that you
want to assert on behalf of the students as a fundamental
right?
MR. BOPP: You know, the best I can do is what we did
in our brief, Your Honor, and we cited specific cases we
believe establish that --
THE COURT: Again, I want a specific answer to my
question, Mr. Bopp.
Is there --
MR. BOPP: I don't --
THE COURT: No. Excuse me, sir.
MR. BOPP: Sorry.
THE COURT: Is there a single case that has
recognized the right, this right, the right to not just bodily
autonomy to refuse the vaccine --
MR. BOPP: Vaccines?
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THE COURT: Yes, sir.
-- as a fundamental right?
MR. BOPP: There's been two cases that address this
by the United States Supreme Court, and they were in 1904,
Jacobson, and then they were in -- and then the Zucht case,
Z-U-R-K (sic), I think it is, that specifically upheld
vaccination requirements for school-aged, meaning elementary or
high school or whatever, not college.
And those --
THE COURT: And if we go back to Jacobson --
MR. BOPP: Yeah.
THE COURT: -- Jacobson is just a rational basis
review case by another name, is it not, in effect a precursor
to rational basis, before rational basis was known as it's
constitutionally known today in terms of the modern tiers of
scrutiny?
MR. BOPP: As one judge said it, Jacobson's exception
is analytically different but gets you to the same place as
rational basis, because under the exception, the government has
to recognize that the requirement is not unreasonable and that
there's a sufficient connection between the requirement and
public safety that it can be upheld, and that is if there's a
right violated. And, of course, Jacobson's central holding was
there weren't any rights violated and therefore you can just
willy-nilly do this.
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But, you know, since 1904, I mean, my goodness sakes,
look at the whole line of cases that have, you know, harkened
back to dissents, you know, the right to be left alone, things
like that, and we have right now a very fulsome set of
constitutional principles that establish rights. Sometimes --
and what we're talking about right now is like a new
application of an enduring, well-recognized principle. And
there is -- other than those two cases in the Progressive Era,
there's just, you know, nothing else to point to as far as the
Supreme Court is concerned.
THE COURT: So, Mr. Bopp, I may well agree that
there's a well recognized, at least in the case law that has
built on the concept of substantive due process, liberty
interest in bodily autonomy, the right to refuse unwanted
medical treatment, even a case that recognized that liberty
interest in refusing anti-psychotic drugs in the prison
context, right. There are a line of cases that recognize that
as a liberty interest. I'm trying to get clarity as to whether
there's any authority for recognizing it as so fundamental that
we now leap into strict scrutiny.
Recognizing that as a liberty interest, like
Glucksberg did, I think, led the Court to a rational basis
review, did it not?
MR. BOPP: Arguably.
THE COURT: Sorry?
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MR. BOPP: Arguably, yes.
THE COURT: I mean, that was the conclusion of the
case, that there was a legitimate interest that the, I think,
State of Washington was pursuing that was rationally related to
that interest, that is, the law that was passed that prohibited
assisted suicide.
MR. BOPP: Often they default to rational basis even
though it could be subject to scrutiny because they want to do
it at, you know, the lowest level. And if it won't even pass
rational basis, why do we have to think about strict scrutiny?
You know, I do understand that dynamic in the courts,
and that, I think, has resulted in the default in some of these
cases, including Glucksberg, to a rational basis review,
because if it won't pass that, it certainly is not going to
pass strict scrutiny.
THE COURT: That doesn't really answer the question
for us in terms of Glucksberg, because they said it did pass
rational basis review in Glucksberg, the law that was passed by
Washington, right?
MR. BOPP: Right.
THE COURT: So who knows what the analysis might have
been had strict scrutiny been appropriate.
MR. BOPP: Sure.
THE COURT: So my question is one aimed at: What is
the right constitutional analysis that needs to be employed
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here?
And I know I'm pressing you with questions, but I'm
not sure I'm seeing the case for why strict scrutiny applies as
opposed to rational basis.
MR. BOPP: Well, you have to determine the
seriousness of the intervention, because it is recognized as at
least a liberty interest, and you have to understand the
seriousness of it.
And we have plaintiffs who -- their attending
physician has told them that their underlying medical
conditions mean that they are at serious risk to their health
or life if they take the vaccine and so don't take it. That
plaintiff sought a medical exemption and was refused it.
THE COURT: You're talking about Ms. Carini?
MR. BOPP: I'm currently thinking about Jaime Carini.
THE COURT: Ms. Carini?
MR. BOPP: Yeah.
THE COURT: So Ms. Carini has a religious exemption?
MR. BOPP: Yes.
THE COURT: Which she received prior to the time that
that she sought a medical exemption?
MR. BOPP: Yes.
THE COURT: All right. So she had already an
exemption and went after a second exemption?
MR. BOPP: Yes.
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THE COURT: Are there any students among the eight
who are plaintiffs in this case who have a doctor's opinion or
a doctor's note who says they should not get the vaccine?
MR. BOPP: There's two of them.
THE COURT: Other than Ms. Carini, who has already
got an exemption, who else is there?
MR. BOPP: Do you remember?
MS. SIEBERT: Hold on.
MR. BOPP: We'll have that answer for you.
THE COURT: Sure. Thank you.
MR. BOPP: Let me finish up the thought about the
risk of vaccine, the COVID vaccine versus others.
We cite a study which compared the number of
COVID-related deaths in the six months the vaccines have been
utilized throughout the United States, and that's 6,136, with
the total number of deaths for all other vaccinations,
vaccines, for the last 20 years, all right, and that number is
half of what the COVID wracked up -- COVID vaccine wracked up
in six months, and that number is 3,167. Adjusted per year --
THE COURT: 3,167 deaths?
MR. BOPP: Deaths.
THE COURT: Based on what study?
MR. BOPP: We cite it in our --
THE COURT: Is this the abstract?
MR. BOPP: Yes. I don't have -- I didn't pull it out
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to show you.
THE COURT: So I read last night an abstract --
MR. BOPP: Yeah.
THE COURT: -- which I presume is not peer-reviewed,
correct?
MR. BOPP: I'm not sure which one you're referring
to.
THE COURT: Okay. Well, let's be specific so when I
looked at the evidence, you know, after today's hearing I'm on
the same page with you, Mr. Bopp.
MR. BOPP: Sure.
THE COURT: But there was an abstract that was based
on an analysis of the VAERS data.
Is that the one that you're referring to?
MR. BOPP: Yes.
THE COURT: Okay. And that's an abstract? It was
not peer-reviewed, correct?
MR. BOPP: That's correct. I now know what you're
asking me about.
THE COURT: Okay. And that's based on the VAERS
anecdotal data?
MR. BOPP: True.
THE COURT: So it's not a study?
MR. BOPP: Well, true. There are limitations on the
VAERS data. It's passive reporting. It's self-reporting,
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usually by health care providers, sometimes by laypeople. But,
you know, all the experts in the field rely upon this
information. And it's not -- certainly not perfect, that's for
sure.
THE COURT: Well, I saw that the authors of that --
MR. BOPP: By the way, could I finish that?
There are people -- there is, I think -- I am trying
to remember. It might be the CDC that does follow up on these
reports to try to verify them, but they don't -- but the
results of that investigation is not then reflected in the
VAERS data. It's still the raw data.
THE COURT: And I'm not dismissing the fact that
temporal association may be the beginnings of a causative link.
MR. BOPP: Right.
THE COURT: But I'm focused particularly on this
abstract.
I noted that the authors there noted a couple of
things. First, that, in large measure, this anecdotal
information was shared, I would say, by the majority, or in the
majority, by health care professionals, as you've said. And,
second, then they draw a conclusion that there is a link
between the vaccines and the risk of death. What was not clear
to me in reading the abstract was how they reached that
conclusion.
MR. BOPP: Right.
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THE COURT: They say it. But on what basis do they
say it, particularly when they're basing this conclusion on
anecdotal information within the VAERS system?
MR. BOPP: Uh-huh.
THE COURT: I didn't see any explanation for how they
then drew the conclusion that there was a causative link.
Did you see any evidence of that?
MR. BOPP: No, not in the abstract.
THE COURT: How am I to, then, absent true medical
evidence of causation -- that's just a theory. That's not
proof of anything; do you agree -- how am I to base the
conclusion that you want me to base this conclusion on that
there is a definitive or causative link between the vaccines
and the risk of death?
MR. BOPP: You know, I haven't yet said the word
"definitive" because we have a brand-new vaccination, vaccine.
THE COURT: Well, let's say it's to a reasonable
degree of medical certainty. It's not definitive, but it's at
least causative. It's not speculative.
How am I to draw that link or draw that conclusion
based on something that is merely a theory but not established
to any reasonable degree of medical certainty?
MR. BOPP: Well, it's certainly not a theory. It's
more than a theory, because some of the Hill Factors are
certainly existing there, so it's not just a theory, you know,
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taken out of the blue. It is a methodology that is used for
all vaccines; that is, there's a self-reporting and then they
go investigate.
And, again, one of the -- see, it's like I'm getting
hoisted, you know -- I mean, they didn't do the lengthy trials
that they would normally do. And now I'm hearing that, because
of that, it's my fault that we don't have the absolute, 100
percent proof through peer-reviewed studies of links of things
that are just appearing that would have appeared in the trials
before it had national roll-out, and there would have been
those studies and we would have known for sure, okay. Well,
that's not the students' fault. It is the context in which we
are, okay. That's the context. There are known risks and then
there are known -- it is known that there are unknown risks,
and now they're starting to manifest itself in ways that the
scientific community uses all the time. That's the reason they
have the VAERS system, so that there will be anecdotal reports.
THE COURT: I'm sorry, sir. I'm sorry.
So do we agree that the risk of death vis-a-vis any
one vaccine is an unknown risk?
MR. BOPP: No. We know -- for many of the vaccines,
we know the risks, because they've -- they went through full
trials, and many of them have been used for decades.
THE COURT: No, I'm talking about the COVID-19
vaccine.
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MR. BOPP: Oh, the three.
THE COURT: What we're here to talk about today,
Mr. Bopp.
MR. BOPP: Sorry.
THE COURT: Yeah. With respect to any of one of the
three that have EUA approval, are we in agreement that the risk
of death from one of those vaccines is today medically unknown?
MR. BOPP: No. It's a strong suspicion, but it's not
established to a reasonable degree of medical certainty.
And the context here is not -- we're not suing the
drugs, you know, saying the students ought to get damages.
That would have to have been -- that causation link would have
to be shown. We're suing Indiana University for making them
take the vaccine and thereby stripping them of their right to
decide for themselves and assume their own -- assume the risk
and the benefits and make that judgment.
IU can strip that from them, all right. The choice
is the problem here. And the nature of the roll-out of the
vaccine, including, you know, how it works, is novel, even
though the mechanism is known. It's just never been approved
by the FDA for use in vaccines. It's a known mechanism. I
mean, there's just a number of aspects about this that -- why
in the world is IU University practicing medicine? What
studies have they seen that ensure -- ensure the safety of this
vaccine they're requiring their students to take?
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You know, we can only know what we know under the
circumstances, but there is suspicion, you know, justifiable
suspicion, that there are problems here.
And the thing I just told you about, I was told that
the CDC is going to make a statement about this emerging
problem with the J & J vaccine of an autoimmune disease,
association with an autoimmune disease. I don't know.
But, you know, it would seem to me that it's
unreasonable, even irrational, to require people to take a
vaccine when there is so many unknowns and peculiarities.
THE COURT: It certainly begs the question "who makes
that choice," right?
MR. BOPP: Well, under modern constitutional
jurisprudence, you do, whether or not their choice was
reasonable under the circumstances.
I mean, surely, we would say that it is unreasonable
for IU to open the door of a room, dark room, and throw someone
in there because of all the unknowns, right. I mean, that
would surely be unreasonable, all right.
Well, to a certain extent -- and not fully, I
understand, but to a certain extent -- that's the way we feel,
you know. It's one thing to have the choice. And the students
are all in favor of these vaccines being rolled out and people
taking them if they choose to. They're not suing the vaccine.
But they want -- they want to have their right of bodily
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integrity not to have a foreign substance introduced into their
body that they're required to take when they haven't consented,
and particularly in this context in which there are so many
unknowns but suspicion.
I mean, it's a perfectly rational choice for somebody
to say, "Well," you know, "I understand you say this is going
to help me," you know, "do X. But what are the problems with
this medicine?"
And the person will say, you know, "Well" -- you
would tell this person all the things we just were discussing.
You know, it would be a perfectly rational decision by that
person to say, "No." You know, "You say it's going to help me,
but you can't tell me really, even though there's suspicions
now, what the problems are associated with it." That's
stripped by them from these people, and it's inexplicable to
me, honestly.
Now, I mean, there's a couple of other things that
are aspects to this. We have evidence but, no doubt, not to a
reasonable degree of medical certainty, but we have evidence.
We have evidence of vaccine reactions for COVID-positive
people, students.
We have -- one of our plaintiffs had COVID, has
antibodies, believes he is immune, but Indiana University will
not exempt him, and that's in the face of emerging studies that
say there's an increased risk of the -- recent UK study that
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says there's an increased risk for adverse effects of the
vaccine if you're COVID-positive, all right.
We also have --
THE COURT: How long do those antibodies last, based
on current medical science? I know I've seen an article, a
study, indicating that its longevity may be eight months. I'm
not sure that was even in the context of this case. But what
have you seen, Mr. Bopp, in that respect?
MR. BOPP: Well, that was going to be my next point.
You know, the problem is, they didn't do the
long-term studies to determine the immunity that's afforded by
the vaccines, and they also have not done long-term studies on
natural immunity that arises from being infected. So, again,
there's just a degree of unknown there.
There are some studies. Cleveland Clinic recently
did one, but it was only for five months, but it's because
that's when the vaccine became available, you know. So you
can't study something that you don't have anything about. And
they said that natural immunity from having the COVID infection
provides the same level of immunity as do the vaccines.
Now, IU wants to argue over that and only talk about
vaccines, but we don't even know for sure how long the immunity
for that lasts. And we also don't know -- even though there's
some emerging evidence on this, as well -- what effect the
vaccinations have on protecting people from variants that are
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coming along. So even the efficacy of the vaccines are now
being called into question, whether or not they do anything,
particularly against certain strains like the Delta.
But this isn't our problem. This isn't the students'
problem. They didn't cause this problem. The problem is
they're mandating it. They're forcing them to do this, despite
all these unknowns.
So that does take us back to due process. Those were
the contexts I wanted to mention to due process.
And we've already covered the fact that the law, the
recent case of Koontz that sets out all of the cases, that if
you condition a benefit on waiving a constitutional right --
and it's not just a fundamental one. It would be a liberty
one -- that means it's violated and triggers the appropriate
level of scrutiny.
IU says, "Well, just go to another school."
Now, I represent a plaintiff here who has been at IU
for years because she is one semester away --
THE COURT: From a Ph.D?
MR. BOPP: Yeah, not one but two Ph.Ds in just a few
months.
So IU says, "Well, whatever. Go to another school."
What, and start all over, to get two Ph.Ds and spend
another four or five years somewhere trying to do this? You
know, that's coercive, to do that to somebody. You're coercing
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a choice.
Now, Dr. -- yeah. Well, he is a doctor -- Dr.
Carroll, who was a 30(b)(6) witness, when I asked him about
that, he said, "Well, that's not coercion in the way" -- first,
frankly, he quibbled a lot, said he didn't know what "coercion"
means, but he said that's not coercion in his point of view.
Well, IU needs to understand that it is. They need
to understand that. Because they make a lot of decisions about
these students. And they right now think they can do anything
as far as conditioning any benefit or any requirement, no
matter what it is.
And, you know, and they've taken it so far not only
about Jacobson, but to its progeny, Buck v Bell. They still
think it's good law, Buck v Bell is good law. And, of course,
as you know, Jacobson led directly to Buck v Bell. In fact, a
quote out of Buck v Bell was that, you know, the mandate of
forced vaccinations is broad enough to encompass forced
sterilization -- I don't know if I can get through this one --
and they cite Jacobson. And then the very next sentence is
that horrific statement, "Three generations of imbeciles is
enough." That is what Jacobson is. That's what it is. It's
Buck v Bell. And Indiana University still thinks Buck v Bell
is good law. They need to know that's not the case.
THE COURT: Mr. Bopp, if the vaccines, any one of
those, were to achieve full FDA approval, does your
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constitutional issue on behalf of the students fall away?
MR. BOPP: Oh, no. My goodness, no. I mean, one
context, which is a certain amount of this insecurity -- I mean
not insecurity -- unknown, you know, uncertainties, would
surely be resolved, you know, at least in part, maybe in whole,
once they do proper studies and do it for long enough that they
can figure out these things, okay.
So, you know, that would simply mean that maybe
they'll resolve that heart inflammations are not caused by the
vaccine, okay. Well, then that falls away certainly.
But, no, we're not basing -- we're not suing them
under the FDA claiming they improperly approved the drug.
We're just saying it is part of the context. None of the other
contexts fall away at all. I mean, the astronomical -- I mean,
talk about -- you want to stop the spread of a disease, all
right, Indiana University wants to -- and that's a very
admirable goal, and there are many ways to do that, all
right -- and you want to stop deaths by getting a COVID
infection, so what you do is you order the people who are least
vulnerable to adverse effects and death to take a vaccine.
The people that are somewhere between 600 times up to
1700 times more at risk, nobody is telling them to get --
nobody is mandating them.
I mean, there was one death at Indiana University
through this whole pandemic, and there was a pandemic. There
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was one death. Now, that's terrible, of course. But they're
going to mandate everybody to get a vaccine in order to prevent
one death?
Well, look. How many IU students die from car
accidents and drug overdoses and suicides and all these other
things. They don't ban cars at Indiana University to
prevent -- and that's a right, to travel. They don't ban cars,
you know. They just let them go willy-nilly out, out there,
and kill themselves.
So it's -- so where is the narrow tailoring here,
right?
Now, the other thing, of course, is where is the
least restrictive means, as well. Depending on your level of
scrutiny, I understand. They say masks work. That's the
reason they're requiring them. They say testing works. That's
the reason they're requiring it, as an extra requirement for
people who get an exemption. They say that masking and testing
did work over the last year-and-a-half, all right. Now, there
were more severe measures, as well, of course, but, of course,
the situation was much more severe. You know, we were going up
and to the top of a bell curve where the numbers were, you
know, a hundred times what they are now, all right. So I
understand that, but they still think they work now, okay, and
should be required now, all right.
And people who -- if you're talking about other
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people, which they do talk about, even though Dr. Carroll
disclaimed that, if they're talking about other people, well,
those other people could get vaccinated. And IU says -- and we
agree -- the vaccination works. So, you know, you don't need
to, from our standpoint, strip these people of rights in order
to benefit these other people.
And, in fact, historically, as a medical ethics
thing, that is forbidden. It is forbidden to force somebody
to, you know, take medical treatment because you're trying to
benefit somebody else, you know. And so if that is the basis,
they've really taken an extreme position.
THE COURT: Mr. Bopp, I don't mean to interrupt you,
but I think I've given you a little more than an hour at this
point in terms of your opening remarks. Time has flown, of
course, as we have had our discussion.
I do have more questions for you, but we have 20
minutes in rebuttal, so perhaps we can rejoin at that time.
MR. BOPP: And I have a few other things to say, too.
THE COURT: I suspect you probably do. Thank you,
sir.
Ms. Ricchiuto, good afternoon.
MS. RICCHIUTO: Good afternoon, Your Honor.
May it please the Court.
We've got -- oh, good. There is a shot clock. I
couldn't see it from where I was sitting.
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We have a presentation that we're going to use just
to kind of guide my remarks, if we can.
Can everybody see that okay?
THE COURT: Mr. Dahm, could we turn that slightly,
that screen? That way, I can keep my focus on counsel here,
too. I'll probably look at that one rather than the one behind
me.
LAW CLERK: (Complies.)
THE COURT: Thank you.
MS. RICCHIUTO: Would you like a hard copy, Your
Honor?
THE COURT: If you have one, I will take one. Thank
you.
MS. RICCHIUTO: Sure.
May I approach?
THE COURT: You may.
Mr. Bopp, do you have a copy of this one, as well?
MR. BOPP: I do. Thank you.
MS. RICCHIUTO: Okay. Again, Your Honor, may it
please the Court.
We join Mr. Bopp in thanking you for your really
devoted attention to this on such an expedited timeline.
Obviously, this is a matter of great importance to Indiana
University, and we are grateful for the time that you and your
staff have devoted to it and will continue to do so.
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I want to start out by just taking a look at some
recent data related to the pandemic. As I think Mr. Bopp and I
agree, this is data that's changing every day. But what we
know is that, as of yesterday in Indiana, we had over 600,000
deaths or -- excuse me -- 600,000 nationwide, almost 14,000 in
Indiana, and more people are testing positive every day.
And so if you look at that box, the second line, Your
Honor, that says 7.5. I was rereading plaintiffs' reply brief
last night. And at that time, which I think was filed on
July 6th, that same statistic was 3.1. So just in that time,
you know, that's roughly doubled, or more than doubled, just
since that brief has been filed. So the point is, obviously,
you know, these are numbers that are continuing to move.
There are lots of graphs and charts that look like
this in the materials, Your Honor, but the main point that I
want to make to you is that the wide variety of trend data
that's available really demonstrates that you cannot look at a
fixed moment in time and say that this pandemic is over. Or if
you can, we haven't gotten there yet.
For example, looking at the charts that are in front
of you, if you look at the time that the mandate was issued,
which was late May, the cases were at a different point than
even they are today. So, to the extent that someone thought,
"Oh, gosh. We seem to be at a low point in May. We must be on
the downward trajectory forever," we've already seen in the
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time that the requirement has been in place cases are
continuing to rise.
And, for example, I think Missouri, or parts of
Missouri, might have just reinstituted a mask mandate. You
know, things are continuing to change.
We also know -- and Dr. Carroll testified -- this is
a seasonal virus, so we're not surprised to see cases dipping
in warmer months. And Dr. Carroll specifically testified, you
know, last summer looked not so bad. And, then, as we all
recall last Fall and last Winter, I know my kids got in school
and out of school and in school and out of school, you know, as
this situation continued to evolve.
So what I would just caution you is, as you're
looking at the wide variety of data that we've put in front of
you, please do pay attention to the end point on the chart.
I know that plaintiffs have submitted -- for example,
they have an Exhibit 221. That stops on June 24th. Again,
you look at that same chart, later point in time, and the data
keeps moving.
I don't want to dwell on this because Mr. Bopp didn't
dwell on it yet today. Although we may hear it from him, so I
want to mention it. The plaintiffs have, at least in their
discussion with our 30(b)(6) witness, constructed kind of an
alternative mechanism in which to try to place the pandemic,
and they rely on a couple of things. They rely on some CDC
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guidance from 2014 and 2016 about Influenza A. Those are --
these are their Exhibits 230 to 232.
And what I want to say about that CDC guidance is
it's exactly what it looks like. It's regarding Influenza A,
which is annual and cyclical, and not, you know, ever risen to
the level of COVID. The CDC has never referred anybody with
respect to COVID, "Hey, go look at our guidance from 2014," you
know, "That's all we have to say about it." So the CDC isn't
referencing anybody there. And I'd also note, IU requires a
flu shot. So that's one construct that we just think -- and
Dr. Carroll testified about that -- that really isn't
appropriate here.
Plaintiffs also rely on an IU infectious disease
policy that predates the pandemic. It was last updated in
April of 2019. That's a little bit tricky because you have to
take Exhibit 211 and 215 in their book. Those actually go
together with the remaining exhibit, which is at 229. So I
don't exactly know why they're separated. But the point I just
want to make to you is that that IU infectious disease policy
is part of a past separate policy. The entire policy is
Exhibit 11 in Carroll's deposition, and you can read what he
said about it.
But, in sum, IU, when hit with the COVID-19 pandemic,
concluded it needed a whole new paradigm, that the existing
policy that it had for infectious diseases generally wasn't the
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right fit for the circumstances. And so to the extent that
plaintiffs' position is that IU's kind of new restart work
isn't applicable here and that they should be stuck with their
2019 guidance, we just would note, you know, kind of the
extraordinary new work that IU has done to develop a specific
COVID policy.
THE COURT: So, let me ask you, Ms. Ricchiuto, if I
can interrupt you.
In looking at the two different policies, the policy
that IU has vis-a-vis other vaccines and the policy that it's
adopted vis-a-vis the COVID-19, there are some fundamental
differences in those two policies; do you agree?
MS. RICCHIUTO: Regarding other vaccines, Your Honor?
THE COURT: Well, in particular, it struck me -- and
maybe this is an incorrect view -- that the policy that
concerns other vaccines, measles and so on, has a true medical
exemption in it.
The COVID-19 policy that IU has adopted doesn't seem
to have a true medical exemption. In other words, it allows
for an exemption if there are allergies to the ingredients of
the vaccines, but it's a much broader medical exemption in the
other policy, the policy that concerns these vaccines that have
existed for a long time. And that struck me as odd, because in
the world of EUA approval -- not vaccines that have full FDA
approval and have existed for years and years and years -- IU
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has chosen to be less forgiving in its COVID policy than it is
in the other, and I would expect to see the inverse of that.
Why is that rational?
MS. RICCHIUTO: I certainly understand why, based on
the written restart materials, that's exactly what it looks
like. There are a couple of responses to that, Your Honor.
One is that the true -- and Dr. Beeler testified
about this. The only contraindication specified for these
vaccines specifically is these two allergy modes, so either the
actual vaccine or a component. So from that perspective, IU's
written exemption policy --
THE COURT: Well, that's a rather myopic policy then,
isn't it?
In a world in which what we know about COVID-19, the
virus and the vaccines, knowing that that is ever-evolving and
ever-changing, why not simply word it in the same way; that if
there are contraindications, that a student can get a medical
exemption?
That's not the way the policy reads. Isn't that
rather myopic and irrational?
MS. RICCHIUTO: I agree with you, Your Honor, that
that's the way that the policy reads.
THE COURT: Isn't that myopic?
MS. RICCHIUTO: I agree that it's more narrow than
the other policies are written.
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What the testimony is from the two representatives
who are on the medical response team who are responsible for
handling medical exemptions is that, in practice, they are
daily communicating with physicians who provide information to
them seeking exemptions and that very many of those have been
granted.
So, for example, the doctor's note concept --
THE COURT: But that's not the policy. Whether
university in implementation is, you know, enforcing it in a
more relaxed way, that's not the way the policy reads.
Do you agree?
MS. RICCHIUTO: I do.
THE COURT: And so if a student comes in with a note
from his or her doctor who says, "You should not take this
vaccine," even if that has nothing to do with an allergy to one
of the ingredients, the position of Indiana University today
is, "Tough. You don't get a medical exemption under our
policy"? That's the university's position, right?
MS. RICCHIUTO: I don't agree that it's their
position. I agree that it is what is reflected in their
written materials and that there's tension there. I understand
that, Your Honor.
THE COURT: Why is that rational?
This strikes me as completely on its head.
If we have, for all these other vaccines, full FDA
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approval, with an allowance for a counter-indication by a
medical professional on behalf of a student, but when it comes
to emergency use approval vis-a-vis these COVID-19 vaccines, IU
says, "No. We're going to take a much more stringent view of
these medical exemptions, and we're going to give you a small
window in which to fit," if I have a medical doctor who says I
should not take a vaccine, why does IU think they're in a
better position to say, "That student, nonetheless, must have
the vaccine"?
That strikes me as completely irrational.
MS. RICCHIUTO: I don't believe, as a matter of
implementation, that that's the position that IU has taken.
THE COURT: Well, I don't have any evidence in the
record as to its implementation, do I?
MS. RICCHIUTO: You have --
THE COURT: I have the policy.
MS. RICCHIUTO: I'm sorry, Your Honor.
You do have testimony from both Dr. Beeler and
Dr. Carroll. They are two of the individual humans at Indiana
University that process these exemptions, and they do testify
under oath in the record to the way that they've been
processing them and the way that they've been granting them, so
you do have that information as implementation in the record.
And our demonstrative at the end of our book that
refers to testimony, there should be an entry related to
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exemptions, and that would point you to the relevant testimony
on that.
THE COURT: Then why didn't Ms. Carini get a medical
exemption?
MS. RICCHIUTO: So I'm glad that you asked that
because I was going to raise that also.
Ms. Carini -- I think you asked Mr. Bopp whether any
plaintiff had a medical exemption and no other exemption, and
the answer to that is "no." Ms. Carini is the only one who has
said in the complaint, or in her deposition, that she actually
has a doctor's note, as opposed to, for example, a concern
herself.
And she is eligible for an exemption, a medical
exemption. She already has a religious exemption. And so IU
simply communicated to her, you know, from their perspective,
you're either exempt or you're not exempt. She was having some
trouble uploading the paperwork in the portal and getting
frustrated about that, and they said, "You know what, you're
already exempt from a religious perspective. There's not a
difference in the exemption. You're covered."
But she is -- under the testimony of Dr. Carroll and
Dr. Beeler, she's eligible for that medical exemption, and I
have every reason to expect that that would be granted if, for
some reason, they were of value to her in having two exemptions
from the same requirement.
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THE COURT: So maybe I missed some evidence in the
mass here in reviewing this stuff quickly last night.
But when I read Ms. Carini's deposition, I thought
she testified, did she not, that she sought a medical exemption
and was denied that?
MS. RICCHIUTO: I don't believe that -- I agree with
you -- I agree with Ms. Carini. She does not have one. So I
don't want to have like a matter of semantics. But I think
what the communications are that we have seen are that she had
a religious exemption in place. She reached out to IU try to
get a medical exemption. She tried to do that by e-mail. They
said, "Actually, you need to use this portal." She had a hard
time with the upload. She was getting frustrated, like, "Hey,"
you know, "I want to give you the information." And so someone
as a matter -- you know, I think probably trying to be
convenient to Ms. Carini, said, "You know what, don't worry
about it. You're already covered by an exemption."
So if you deem that a denial, then I suppose that's a
denial. I don't think that I would deem that a denial of an
exemption.
THE COURT: I'm sorry to interrupt you. Give us a
moment.
Ms. Gutwein [verbatim], did you find whether any
other student has a physician's note that says that they should
not be taking the vaccine?
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MS. SIEBERT: Thank you. Miss Siebert for the
plaintiff.
THE COURT: Oh, Siebert. I'm sorry. I said,
"Gutwein."
MS. SIEBERT: It's fine. It's fine.
THE COURT: Ms. Siebert.
MS. SIEBERT: Ms. Roth did not have a doctor's note,
but she has her own personal concerns, but based upon the
written policy of IU knows that she would not qualify for a
medical exemption.
THE COURT: All right. Thank you.
MS. SIEBERT: Uh-huh.
THE COURT: I'm sorry. I wondered if we had run that
to ground.
MS. SIEBERT: No problem.
THE COURT: So, if I want to look at how IU is
actually implementing the medical exemption, then I need to
look closely at Mr. Carroll's deposition?
MS. RICCHIUTO: I would -- yes, I would point you to
Exhibit 320, which is our kind of guidepost for you for
specific topical information testified to by our witnesses, and
you will find citations to Dr. Beeler's testimony and
Dr. Carroll's testimony. They are both members of IU's Medical
Response Team. And they both personally review, really on a
daily basis, I think they testified, Judge, these medical
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exemptions, and from time to time interact with providers.
You'll have a provider say -- I think there's
testimony that says, you know, "Gosh, I don't think my patient
should get the vaccine. They have diabetes." And then IU
might respond and say, "Gosh, let us give you some information.
Diabetes is not actually a contraindication." And a lot of
times, the testimony is the physicians say, "Oh, thank you for
telling me. I agree my patient should get vaccinated."
Other times, there's another reason. You know, the
classic example is people who are on immunosuppressant drugs
where they wouldn't have an immune response to anything anyway.
COURT REPORTER: Ma'am, would you slow down, please?
MS. RICCHIUTO: I'm sorry.
MS. RICH: They wouldn't have an immune response,
anyway. And so Indiana University says, "Certainly, right now
isn't a time that makes sense for you to be vaccinated," you
know, "let's talk through your course of treatment. Will there
be a good time in the future where you may be off of your
immunosuppressants." And those things really have been dealt
with on a case-by-case basis in consultation with the
physicians who have submitted exemptions.
THE COURT: So according to these two depositions,
Dr. Beeler's deposition and, is it, Dr. Carroll or Mr. Carroll?
MS. RICCHIUTO: Dr. Carroll. He's the chief health
officer for IU.
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THE COURT: Okay. Dr. Beeler and Dr. Carroll.
Is it your view that when I review those depositions,
what they will say to me is that, when it comes to this medical
exemption, Indiana University is not enforcing the policy to
its letter, but instead going beyond allergies to the
ingredients of these vaccines and providing ongoing medical
exemptions if a student's physician says he or she should not
take it and remain unconvinced after this give and take?
MS. RICCHIUTO: That is exactly correct, Your Honor,
and that wouldn't cover, you know, as --
THE COURT: Then why didn't IU revise its policy?
MS. RICCHIUTO: It's possible they'll consider doing
it.
THE COURT: Because, as written, it sounds
troublesome.
Don't you agree that, as written, it's troublesome?
MS. RICCHIUTO: I think, as written, it very exactly
tracks the CDC contraindications. And as written, it does not
exactly match the way they're implementing it.
I want to make one other point here just almost,
frankly, so I don't forget, Judge.
Mr. Bopp talked to you about considerations taken on
behalf of others in the community and, you know, whether that's
reasonable and who those people should be. And I think you
asked a question about whether you should take into account the
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rest of IU's population. And I want to just clarify a little
bit because I think the description and the testimony maybe
doesn't exactly match the way the testimony came in.
Dr. Carroll was asked basically, with respect to, for
example, the community of Bloomington or the county of Monroe,
"Is the purpose of this policy to protect all of those people,"
and Dr. Carroll's testimony on that was, "No, that's not the
primary goal of this policy. It's a great secondary benefit,"
you know, "We're for fewer people getting COVID. But that's
not the purpose of the policy." So that Q and A was not
directed at kind of the IU community as a whole.
It is absolutely the case, given that this policy
extends to faculty, staff, students -- obviously, we're focused
on students in this lawsuit, but the policy itself is broader
than that -- and it is absolutely the case that IU does care
and has focused on the general population health of its
community at large, you know, kind of IU community being people
in and affiliated with the university, as opposed to, you know,
physically in the same town as the campus.
And there's a number in Carroll's declaration that
estimates -- that's at Paragraph 26, and it estimates
approximately 8500 staff at risk. I will tell you that is, you
know, kind of rough, quick math based on what we know about
what conditions the IU staff has. So it's good numbers, but
it's probably -- you know, it could be over- or
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under-inclusive, based upon what data we were able to have
access to. But that is information that IU did consider, and
that's also in the record, so I just wanted to clear that up,
if I could.
THE COURT: All right. Thank you.
MS. RICCHIUTO: So, getting just a little bit back on
track, Mr. Bopp mentioned variants. Obviously, those are out
there.
There is this question about herd immunity.
Plaintiffs have an Exhibit 243 that is a techstartups.com
article. There's extensive testimony in Dr. Beeler's
deposition around where Exhibit 14 was marked that explains why
his view is that it's not herd immunity.
The easiest lay way for me to understand it, Judge,
is that we see the numbers going up. If there were herd
immunity in the U.S. or in Indiana, you wouldn't see that. So
that's not scientific, but that's the way that's very easy for
me to get my head around the herd immunity concept.
So, as I said, IU had this existing policy that had
been last updated in April of 2019. And what it did in
response to COVID is that President McRobbie, you know, mounted
a very robust, educated, expert group of people in terms of a
Restart Committee that was formed, not just on this policy,
Your Honor, but way back at the beginning in Spring of 2020, to
start thinking about how are we going to bring people back,
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what's that going to look like for each semester, and to keep
track of that.
You can see -- and this is in the Restart Committee
report that you have. It's the most updated one. It's already
been updated since this case has been filed. So the most
updated one -- I think that's one that both parties probably
put in the books -- for us, it's 300. And you've got a wide
variety of expertise. These folks worked together to provide
detailed reporting to IU's leadership on a weekly basis.
We did not give you every single presentation that
was made to IU's leadership for the relevant period. Our
Exhibits 302 to 317 give you examples, and I would, you know,
certainly commend those to your attention if you are interested
in what are the types of things that the Restart Committee was
considering.
It is the case that the Restart Committee was not the
decision maker. The Restart Committee is an advisory body that
advised IU's leadership, who obviously ultimately made the
policy. But you can see they were focused on vaccine
development, surveillance, contract tracing --
COURT REPORTER: Ma'am, please slow down.
MS. RICCHIUTO: I'm sorry.
Dr. Beeler -- this kind of funny cover sheet --
Dr. Beeler is all business, so it doesn't surprise me that he
doesn't have a fancy cover on his decs. But his decs deal with
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current stats all the time. He testified in his deposition
that he reads, every single day, the latest in, you know, kind
of COVID studies or other information that's coming out. So,
anyway, those are the types of inputs that the Restart
Committee was getting.
IU also did not -- you know, even with these inputs,
they didn't create their policy based on a blank piece of
paper. There's substantial federal guidance, obviously. The
CDC has issued specific recommendations for institutes of
higher education, of which IU is one.
And plaintiffs stress that the CDC doesn't recommend
or require a mandate. And it is right, and both of our IU
witnesses testified, the CDC doesn't take a position one way or
another on a mandate. It's certainly not contrary to federal
guidance to have a requirement in place. And, you know,
certainly our position is it can't be unreasonable to follow
what federal authorities say is the very best tool that we
have. For IU to want to implement that widely, that seems like
that certainly has to be reasonable. You know, you could dig a
hole with a spoon. But why would you do that if you have a
shovel? So the science and the CDC recommendations are very
clear that the vaccine is the most effective tool, and IU has
absolutely taken the position that it wants to use that tool as
widely as it can.
The Department of Education, which is another federal
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entity, also has issued guidance. These sources are cited
extensively in our brief and in Dr. Carroll's declaration.
THE COURT: What is it, Ms. Ricchiuto, about the EUA
approval of the vaccines that either gave the Restart Committee
comfort that mandating the vaccine was wise or sound policy or
gave the Board of Trustees comfort that this was the right
decision to make?
MS. RICCHIUTO: I'm reluctant to exactly speak for
leadership, but I understand your question.
The EUA statute that is discussed in the Bridges
lawsuit, which is the recent Texas case dealing with an
employer/employee relationship -- so slightly different
context -- but that one also analyzes this EUA argument. The
EUA -- and I think Mr. Bopp even said -- it's not something
that places restrictions on universities. It talks about when
you have a drug or device that has this level of approval -- so
EUA as opposed to full approval -- you have to make sure that
people know that and that they're not getting, you know, the
drug or the device without fully knowing that, and they have to
have the ability to say "no."
THE COURT: And I understand that and I appreciate
where you're heading here. And maybe my question wasn't very
clear, so let me re-ask it.
I'm not so concerned about the statute under which
the Secretary of Health and Human Services operates that has
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been cited as a concern with the EUA. I'm focused on the EUA
process itself.
The reality is, these vaccines don't have full FDA
approval. They've gone through this EUA process, which, if I
understand the history correctly -- and you all can correct me
on this -- is something that was created in the early 2000s at
the time of anthrax, correct, around 2005?
MS. RICCHIUTO: I will have to take your word on
that, Judge.
THE COURT: Okay. So this EUA process is something
that is fairly novel, from what I understand.
What is it, nonetheless, about the EUA process, the
fact that these vaccines have received that approval, though
not full FDA approval, that, nonetheless, gave the Restart
Committee and the Board of Trustees comfort that this is the
right policy for Indiana University and its students?
MS. RICCHIUTO: Dr. Beeler testified in his
deposition that these are the most widely-studied vaccines
ever. Certainly they were developed relatively quickly, from
the lay perspective, but I think the sciences that they were
based on, building blocks that have been around for a long
time, they went through full Phase 3 trials. Dr. Beeler
testified about the robust Phase 3 trials.
And he got asked a question by Mr. Bopp about, you
know, "Well, if there were all these trials, why didn't this
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heart issue arise or why didn't these other side effects
surface," and Dr. Beeler's answer was "because they are that
rare." So even despite the very widespread Phase 3, which
means kind of, you know, live-in-humans testing, the side
effects that now that Mr. Bopp is maybe concerned about, number
one, they're the causation issues that you discussed with him,
but, also, those didn't surface, despite the (unintelligible).
So I think that, you know, we all have come to be
comfortable with the concept of FDA approval, but I think the
supposition that EUA is somehow automatically inferior or
implies a not-robust process at all just isn't supported by
what went into that process and the amount of testing that
really has been done by the government on these three options.
THE COURT: And do I have evidence in the record
that, in fact, the FDA's EUA process that led to that type of
approval was more stringent or rigorous than its EUA process as
stated by its industry practice or regulation?
MS. RICCHIUTO: I think that you -- I don't know
about that comparator, Your Honor. I think that you certainly
have evidence in the record from Dr. Beeler about the scope of
the work that went into the FDA's process leading up to EUA
approval.
Okay. So, turning to the actual policies at issue,
we have talked about -- obviously the main concern of the
plaintiffs is the requirement that they be vaccinated or
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subject to an exemption. We have talked about the medical
exemptions already during our time together.
The religious exemption, what the testimony describes
is that it is -- just one second, Your Honor. Oh, okay -- is
that the religious exemption is that it's automatic, so there's
not even a human that reviews a religious exemption. You, you
know, click the box, if you will, you say you have one, and you
immediately get an approval back.
THE COURT: So how is the university going to police
this policy?
MS. RICCHIUTO: So from the perspective of religious
exemptions for the vaccine itself, they are relying merely on,
you know, representations and attestations by folks that they
have a sincere religious objection, and they are leaving it at
that.
With respect to, for example, masking, which would be
kind of the most obvious thing that you could police, right,
because you can see -- you know, if you have someone in front
of you, and you think "I know that person is not vaccinated,
but I also don't see them wearing a mask. That concerns me"
-- Dr. Carroll testified in his deposition that IU will not be
giving guidance to students or others about reporting each
other or tattling on each other or saying, you know,
"Ms. Gutwein is not wearing a mask," or, "I'm worried about
that."
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THE COURT: It's the honor system?
MS. RICCHIUTO: I think that it is a policy of the
university that is subject to the ways that all university
policies are subject to enforcement, but that IU does not
intend to have like a strike force out in the streets asking
for vax cards or looking for masks or anything of the sort.
They're issuing requirements that they expect their students to
follow, just like lots of other requirements that their
students have to follow that they don't, you know, sort of
follow them around and monitor them for.
And with respect --
THE COURT: So this won't be a basis for discipline
at the university through the student group?
MS. RICCHIUTO: Oh, I don't want to say that. I
mean, I think it's a policy that will be enforced. You know,
if there were some student who -- you know, I hesitate to make
a hypothetical, but I don't think that the intention is to
disregard it or call it aspirational. But I also know that
what Dr. Carroll testified to was that there was no intention
to have like a robust enforcement arm with respect to masking
and certainly not student-to-student.
So you could have, for example -- I mean, I'm just
imagining here -- like an RA, for example, who may be aware of
a situation with a student who is repeatedly going into, you
know, a dorm meeting with lots of people who is subject to the
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mask requirement and isn't masking. Could there be some
consequence for that? I think IU has reserved the right for
there to be. But, again, you know, the testimony is that IU
does not have any kind of robust enforcement with respect to
masking.
With respect to testing, there is some amount of
testing that will apply to everyone, regardless of vaccination
status, so that's what we call surveillance testing, and that's
to see whether there have been break-through infections of
concern, and that applies to the whole IU community in terms of
students, faculty, staff, everyone. And then there's
mitigation testing for the people that are most at risk, and
that is focused on unvaccinated people because, as a factual
matter, they happen to be most at risk.
THE COURT: And the university is comfortable with
that system in place? In other words, for those who have
exemptions, they're comfortable addressing the nature of the
pandemic, whatever it is in the Fall of this year, in terms of
social distancing, masking, and surveillance testing?
MS. RICCHIUTO: And vaccination, Your Honor, yes.
THE COURT: Well, I mean, for those who are
exempted --
MS. RICCHIUTO: Yes.
THE COURT: -- they're comfortable with that process?
MS. RICCHIUTO: They --
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THE COURT: They don't have any health concerns about
the safety of its campuses for those who have obtained
exemptions?
MS. RICCHIUTO: I don't think that I would agree that
they have no concerns. I think Dr. Carroll testified
unequivocally; their goal is to have as many people vaccinated
as they possibly can.
THE COURT: Well, whatever their concerns are, they
must be comfortable enough that whatever number of students
receive exemptions under IU's policy can be addressed in a safe
way through masking, social distancing, and surveillance
testing, right?
MS. RICCHIUTO: I agree with you.
THE COURT: Then why not allow that to happen for
students who want to opt out altogether? If that's sufficient
for whatever vast number of the student population at Indiana
University to be handled in a safe enough way, why not let
students opt out? Why not let students choose and handle it,
again, in the way of masking, social distancing, and
surveillance testing, just as the university did last year?
MS. RICCHIUTO: I agree that that's an option that IU
had available to it. They have opted, instead, to take the
most robust possible approach that they can, based on the
federal guidance, and really do everything they can do to
encourage maximum vaccination.
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If you leave it to choice, you --
THE COURT: Well, one person might say taking a
nuclear bomb to a mosquito is rational. Someone else may say
it's not.
So why is taking the most robust way, as you put it,
the rational choice here?
MS. RICCHIUTO: Well, I think the question gets a
little bit into level of scrutiny, Your Honor. Under Jacobson,
a rational basis, it just has to be reasonable. And it is
certainly reasonable for IU to use all of the tools that it has
at its disposal to try to mitigate the spread on its campus.
Last Fall, it didn't have this additional tool,
right. So, yes, they had masking and distancing and testing,
and they did the very best that they could with what they had,
and now they have an additional tool available to them. And we
believe that the law finds that it's reasonable for IU to make
the decision to avail itself, for the safety of its community,
of every tool that's available. It doesn't mean that some
other alternative --
THE COURT: Can the university -- can the university
mandate that its students get the HPV vaccine?
MS. RICCHIUTO: The university certainly mandates
other vaccines.
THE COURT: I'm talking about HPV.
MS. RICCHIUTO: I think it would depend on what the
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risks were to the campus posed by HPV. If HPV were airborne --
THE COURT: The CDC recommends HPV, does it not?
MS. RICCHIUTO: I think they do, yes.
THE COURT: Okay. So why doesn't Indiana University,
in its infinite wisdom, think that it's rational, reasonable to
mandate that its students receive the HPV vaccine?
MS. RICCHIUTO: I don't assume that they don't think
that's reasonable. I think they've at this point concluded
that that's not a policy that they're going to pursue, but I
don't think it's reasonable --
THE COURT: So your view is the university could do
that next?
MS. RICCHIUTO: No, Your Honor. My view is that --
THE COURT: So they couldn't mandate HPV as a vaccine
for its student population?
MS. RICCHIUTO: My view is that if the university had
the same --
THE COURT: Is that a "no" or a "yes"?
MS. RICCHIUTO: If the university -- I think they
could if they had the same data available to them about the
danger and the widespread contagion caused by HPV to members of
their general population. I think it --
THE COURT: What if the Trustees said, in their
infinite wisdom, that the benefits of cervical cancer could be
addressed by the HPV vaccine such that we think that all
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students at IU should get it? Is that reasonable?
MS. RICCHIUTO: If the data were reflective of a
comparable risk to IU, then I think the analysis would be
similar.
I'm not a -- I don't have a record developed on, you
know, the precise risks or --
THE COURT: Well, suppose the university said, in its
infinite wisdom, that it wanted to prescribe to its students,
mandate to its students, the receipt of a fully FDA-approved
drug, say Adderall. "Adderall helps people focus, so our
students will get better grades. We think the IU population
should receive that drug."
Can the university do that?
MS. RICCHIUTO: I don't think you have the same
government interests at stake from that perspective.
THE COURT: It's not a legitimate interest that our
students excel?
MS. RICCHIUTO: It's not a matter of public health
and safety. That is something that is firmly within the
school's powers.
For example, IU does require the flu vaccine, and it
requires the flu vaccine for similar reasons to why it requires
the COVID vaccine. So IU does consider various treatments and
determine whether or not they need to be required.
But I want to make sure to say to you, Judge, that IU
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is not contending that its decisions on these things are
unreviewable, that it has limitless power, that it is standing
in the shoes of everyone's physician. IU's decisions are
reviewable. They're reviewable under the framework that we'll
go over. And there are unquestionably probably some decisions
that IU could make along the lines that you're suggesting that
would go over the line, that would become unconstitutional.
The COVID vaccine today --
THE COURT: You want to put me on that slippery
slope?
MS. RICCHIUTO: Huh?
THE COURT: You want to put me on that slippery
slope?
MS. RICCHIUTO: I want you to, Your Honor, consider
the current state of --
THE COURT: That's the slippery slope Mr. Bopp's
concerned about, right, that ultimately led to a rather
infamous decision?
MS. RICCHIUTO: Your Honor, whether it's slippery is
not the same as whether it's limitless. And so reading --
whether you read Jacobson, whether you use the rational basis
standard, as it's more modern, you know, more modernly phrased,
there are limits. Upholding this vaccine is not the same as
saying IU can do whatever it wants whenever it wants with
respect to its students. What upholding and denying the
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injunction today does, Your Honor, is say that there is a
legitimate government interest here, which multiple courts have
acknowledged, even that it's compelling -- so it's certainly
legitimate. I think even plaintiffs' reply brief concedes it's
legitimate -- and that this is a reasonable way to deal with
it. It's not the only way to deal with it.
THE COURT: When will it end?
MS. RICCHIUTO: The pandemic?
THE COURT: No. When will this vaccine mandate end?
MS. RICCHIUTO: I can't answer that, given the way
that the data is running around.
THE COURT: How long is this policy in place?
MS. RICCHIUTO: Right now, this is a policy that is
in place for the Fall semester.
THE COURT: And what's the plan of either the Restart
Committee or the Trustees in terms of reviewing the plan?
MS. RICCHIUTO: What I can tell you on that is that
they have consistently reviewed and updated their -- you know,
we can only go by what they've done so far, and what they've
done so far is, since Spring of '20, issued multiple updates to
this plan, again including one since plaintiffs filed their
case. So can I promise you what day they're going to update
the policy? No, I can't. What I can tell you is that, based
on the way that they've been behaving and their transparency in
their decision making, I have every expectation that, if
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circumstances were to change, IU would be investigating whether
it's time to update its policy. We know that it has done that
with respect to other policies since COVID began, and there's
every reason to think that they would do so here, as well.
THE COURT: So Mr. Bopp wants me to put the onus on
the university. Maybe that's not unfair to do so here. So let
me ask you a question that I asked him.
With respect to the risk of the vaccine -- and let's
start with death, the most serious one -- is there any
authoritative peer-reviewed study that establishes that there
is no risk of death vis-a-vis any one of the vaccines?
MS. RICCHIUTO: I don't believe there's any such
study in the record. I also don't believe there's any such
study that conclusively establishes the risk of COVID itself,
and so --
THE COURT: There's an unknown there.
MS. RICCHIUTO: Yes. Both things are continuing to
be studied.
THE COURT: What about heart inflammation or
myocarditis? Is there any study that would show that there is
no causative link, to a reasonable degree of medical certainty,
between the COVID-19 vaccine and those conditions?
MS. RICCHIUTO: I'm not aware of a study that has
disproven causation to date.
What Dr. Beeler testified to --
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THE COURT: How is it, then, that the university is
so prescient that it can forecast into the future that these
seeming temporal associations, nonetheless, have no causative
link?
In other words, what happens five years down the road
when medical science catches up and establishes a link between
either death and the vaccine, or myocarditis and the vaccine,
or any number of these conditions and the vaccine, and we look
back in history and say, "Gosh, I wish we would have known that
before we told all these students to get it"?
MS. RICCHIUTO: I don't --
THE COURT: How is that rational for the university
to make a prescient decision that's not based on any medical
science?
MS. RICCHIUTO: Well, Your Honor, I think that the
university is not required to be prescient. What the
university is required to do to be reasonable is to take into
account the information that we have today.
Dr. Beeler testified that, as of right now, the
incidents of myocarditis resulting from the actual COVID virus
are higher than the incidents of myocarditis resulting from the
vaccine, so that's one input that is rational for the
university to take into account, and so --
THE COURT: Well, it simply says -- it simply says
that there may also be the risk, you know, if you got COVID-19,
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right.
MS. RICCHIUTO: Correct.
THE COURT: Which you may get or you may not. But,
gosh darn it, if you get the vaccine and there's a risk, a
medically linked risk of myocarditis, well, you eliminated the
possibility of chance there altogether, right?
There's a distinct difference between those two.
Mandating that someone get a vaccine, injecting that into their
body, creates a certainty if in fact there is a medical link
that is eventually established. Whereas, if a student
decides -- if in fact it's his or her decision -- not to get
the vaccine and to run the risk of whether or not to get COVID
at all, that may or may not occur.
One seems more certain than the other, does it not?
MS. RICCHIUTO: That's correct, Your Honor, but I
think that that comparison --
THE COURT: The EUA process, to date, has it fleshed
out the risk of these vaccines in terms of women who want to
have children?
In other words, have there been either clinical
studies done, Phase 3 or whatever, or other studies done, to
flesh out whether these vaccines pose any such risk?
MS. RICCHIUTO: I think that Dr. Beeler -- I believe
that he testified that that is probably work that is ongoing.
THE COURT: It's ongoing, okay.
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So we have how many number of women who are students
who may want to have children some day?
MS. RICCHIUTO: I don't have that number, but I'm
sure it's high.
THE COURT: All right. Why is it rational for
Indiana University, not knowing what the medical science is,
having no basis to know what the medical science is in that
respect with respect to these vaccines, thinking, in its
infinite wisdom, that we're going to, nonetheless, tell these
women that you must get the vaccine?
MS. RICCHIUTO: I think I disagree, Your Honor, with
the characterization about whether the women have a choice.
They -- no one has to get a vaccine. The students are the
decision makers. I think that's a question you asked to
Mr. Bopp. The students are the decision makers with their
medical providers about whether or not to get the vaccine.
Could it be a hard choice for some of them?
I will grant you, for Natalie Sperazza -- who, by the
way, is the only person that we have here who is not exempt
from this. Although, she's not physically here --
Ms. Sperazza is the only person who has this choice to make.
Could that be a hard choice for Ms. Sperazza? I'm
sure it might be a hard choice.
THE COURT: You agree she has standing here, by the
way?
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MS. RICCHIUTO: Yes.
THE COURT: So if she has standing, I don't need to
address the standing of every other student under the law; do
you agree?
MS. RICCHIUTO: I agree with that with respect to the
vaccine mandate. I think that with respect to the extra
requirements, even setting aside our kind of broader concern
about those, what we've seen in the filings is that they sort
of have pieced together like, well, this person is kind of
worried about this, and this person thinks there might be harm
from the mask, and this person -- and I don't believe that,
with respect to the extras, they've actually demonstrated
standing with respect to everybody. But with respect to the
vaccine requirement, I agree that Ms. Sperazza has standing,
and everybody else either has or could have an exemption.
THE COURT: But under the law, I just have to
establish that there is a case or controversy under Article
III, not that a case or controversy is presented by each and
every plaintiff, correct?
MS. RICCHIUTO: I agree with that.
THE COURT: Okay.
MS. RICCHIUTO: So if you find that one person has
adequately alleged what they need to allege on masking and
testing, then there would be standing over there.
But to finish my point about Ms. Sperazza, you know,
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to the extent this is a hard choice for her, I have empathy for
that. Hard choices are not unconstitutional.
And we have cited a case, Hodges, that talks about a
wide variety of different reasons why students can be dismissed
from their school or not allowed to go to their school anymore
because of violating policies. And in that way, this is not
different from that.
So, she has testified -- specifically with respect to
Ms. Sperazza, she's testified she'll either go to community
college. She'll work full-time. That case directly deals with
facts like that and says --
THE COURT: I appreciate your choice argument here,
but you agree with me that the Unconstitutional Conditions
Doctrine applies?
MS. RICCHIUTO: Your Honor, only insofar as you
believe that there's no choice.
THE COURT: Well, I mean, I think the doctrine is
hinged on something altogether different, right, has the state
conferred a benefit on these students. And by admitting them,
while there may not be a constitutional right to a collegiate
education, they have admitted them and thereby conferred a
benefit on them to attend Indiana University.
Do you agree?
MS. RICCHIUTO: Yes.
THE COURT: All right. And so based on that, does
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that not then trigger the Unconstitutional Conditions Doctrine?
MS. RICCHIUTO: If Indiana University is doing
something unconstitutional, which we believe they are not.
THE COURT: Right.
And so answering "yes" to that question merely gets
us to then defining the right and deciding under which tier of
scrutiny we're going to analyze this constitutional question.
But it still gets us back to this idea that, well,
they can just attend somewhere else simply begs the question
ultimately of: Has IU done something that meets rational basis
review, at least as the university would pitch it to me?
Do you agree?
MS. RICCHIUTO: Yes.
THE COURT: Okay. So that's the real question we
have to answer here, not whether they can just simply go
somewhere else. Has the university done something rational to
achieve a legitimate end?
MS. RICCHIUTO: Correct.
THE COURT: Which then leads me back to my original
question and how we got here, which is: If these medical
questions have not been answered in the EUA process, the risk
of women who -- you know, a risk to their fertility, the risk
of having children, perhaps other risks that we don't yet know,
if those things haven't yet been established, on what medical
basis, on what rational basis, has the university said, in its
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infinite wisdom, "We don't care what the science will
eventually say is the risk in the future. Today, we're going
to mandate that our students get the vaccine, nonetheless"?
Why is that rational?
MS. RICCHIUTO: I don't agree that Indiana University
doesn't care what happens to its students now or ever.
I think that Indiana University is making decisions
based on very, very, very robust federal guidance about the
safety and the efficacy of the vaccines. Do they know every
single thing? No. No one knows every single thing.
But is it reasonable for them to take guidance from
the federal government that says, "Hey, IHEs, colleges, you are
a place where" -- "you are a prime ground for control of COVID
or spread of COVID. Here are tools that are at your disposal.
The very most effective one is vaccine," I believe that it is
eminently reasonable for IU to make the decision to implement
that to the fullest extent that it can in an effort -- coupled
with its compelling, at least, legitimate interest in the
safety and health of its students, faculty, and staff.
THE COURT: Are there any exceptions to the masking
requirement? So for those students who receive exemptions and
have to comply with the additional requirements, masking,
social distancing, and surveillance testing, are there any
exemptions to that?
In other words, as an example, do athletes have to
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wear masks when they're on campus and competing in sports?
MS. RICCHIUTO: If athletes are not vaccinated and,
for example, in a classroom environment, just because they're
an athlete, they're not exempt from masking. I'm confident
that athletes are probably highly encouraged to --
THE COURT: What if they're on the football field?
If they got an exemption and they're on the football field,
does the running back who chooses not to get the vaccine and
applies for, gets an exemption, does he have to wear a mask
while he performs on the football field?
MS. RICCHIUTO: I don't believe that information is
in the record, one way or the other, Your Honor. I haven't
seen it stated, you know, as a written exemption, so I don't
know exactly how athletes are treated.
THE COURT: So, so far as you know, the policy of
Indiana University for this Fall is, if you have an exemption
and you're on campus, you must wear a mask?
MS. RICCHIUTO: Not in every circumstance, no. If
you're in your dorm room by yourself, if you're outside and not
near people. It's a little bit more nuanced than that. But in
general, unvaccinated people, who are mixing and interacting
with others, the policy says they need to be masked.
THE COURT: One of the students, of course, had a
concern in her deposition, as I read it last night, about her
ability to perform musically and whether there would be any
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exception at all to that.
What's IU's plan in that regard?
MS. RICCHIUTO: That plaintiff has an exemption so
she will not be vaccinated. She will be required to mask.
THE COURT: Even while she sings? When she does her
recitals, she's got to mask up?
MS. RICCHIUTO: I believe she plays the organ.
THE COURT: Oh.
MS. RICCHIUTO: But, yes.
THE COURT: So as she plays the organ, she has to
mask up?
MS. RICCHIUTO: That's correct.
THE COURT: All right. There's no separate recital
aside from playing the organ? In other words, she's not
singing? She's not performing in that respect?
MS. RICCHIUTO: I don't believe she's a singer. I
think she's -- I think she's an organist.
THE COURT: All right. So at least as to what IU's
plans are with respect to masking, except for some exceptions,
otherwise, the intent is you must wear a mask at all times
while on campus?
MS. RICCHIUTO: Subject to exceptions, yes. In
general, yes.
THE COURT: Who decides those exceptions?
MS. RICCHIUTO: They are in the restart report, and I
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think they're -- you know, that's part of -- kind of skipping
ahead, Your Honor, we obviously don't think that we should be
talking about narrow tailoring. We don't think that this is a
strict scrutiny case. But one of the indicia that this is
narrowly tailored is that, for example, everybody is not
required to mask. The guidance is, if you're unvaccinated, you
should be masking. I noticed that that's the rule of the
courthouse. People don't always comply with that unless
they're required to, and so --
THE COURT: Maybe even today.
MS. RICCHIUTO: -- and so IU is implementing policies
designed to keep the people who are most at risk from COVID
safe from COVID, and the reality is that those people are the
unvaccinated. They can also impact others. But the policy is
not just to protect the -- you know, the desire is to protect
the IU community as a whole, again not City of Bloomington, but
students, faculty, staff, people on the Indiana University
campus.
Your Honor, you may say you don't want to hear us say
this anymore. We really believe that this case only challenges
the vaccine requirement.
And the only other thing I want to say --
THE COURT: You're right.
MS. RICCHIUTO: Well, the only other thing, if you'll
just indulge me one point on that, the reason why that matters
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to us is it's not a gotcha of, like, you didn't write your
papers right. The way that it's been pled, it was focused on
vaccines. Now they say, "Well, it's vaccines and masking and
testing."
Well, there's a whole bunch more to the policy. So
are they asking you to throw out the whole policy and have IU
be the only organization in modern times that has no COVID
policy? Are they only asking you to throw out these few
things?
So that's why we're focused on that, and that's the
last thing I'll say about that.
You can skip on ahead.
We've talked about standing. Let's go ahead.
With respect to the scrutiny, Your Honor, which is,
you know, for us, the prime decision that you've got to make, I
think that you called Jacobson sort of kind of the precursor of
rational basis. The standards seem awfully similar when you
read them, but Jacobson does provide limits. Jacobson does
provide limits. So we think that, technically, as a matter of
precedent, Jacobson still controls.
And I wish that Buck v Bell hadn't been decided
either. But what the authority is is not that if a case that
nobody likes, cites a case that's still good law, you know, the
first case is thrown out. That's not how the authority works,
and we've got cases cited to that effect.
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THE COURT: So answer me this. Help me with the
interesting legal question here. I realize the case is much
bigger than this. But as we think about the right shape of the
law, is Jacobson rational basis by any other name before
rational basis was recognized as one of the tiers of scrutiny,
or does it stand on its own and deal with situations in which
there is a public health crisis?
MS. RICCHIUTO: Certainly the cases that rely on
Jacobson, all the school vax cases, those are not
pandemic-specific. Those are regular old, you know, "I don't
want my kid to get vaccinated to go to school," and there are
lots and lots and lots of those. So, to me, that undermines
this idea that Jacobson is an emergency pandemic-specific case
because it has been replied on so broadly for non-emergency.
It's been relied on for flu shots. It's been relied on for,
you know, every-day shots. So I don't -- if that's what you
mean by "standing alone," then --
THE COURT: So suppose the Secretary of Health and
Human Services were to rescind the announcement of a public
health crisis. At that point, do the underpinnings to IU's
policy fall away in such a way that they must rescind their
policy?
MS. RICCHIUTO: I don't believe so, Your Honor, and
the reason why is because just the end of the current public
health crisis does not say anything about the efficacy or the
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safety that is provided by vaccines.
If they came out and said, "Oh, my gosh. We've
changed our minds. Nobody should be getting vaccinated
anymore," and IU said, "No. Everyone at IU is getting
vaccinated," then I think you're looking at some tension that
may not be tenable.
But the fact that we are all hoping and praying that
this pandemic -- we're going to reach a day where someone who
is wiser than I am says "it's over" is not a reason not to
control for it with every tool that we have today.
So when it comes to -- so these are some of the
cases, Your Honor, that I had cited about -- you know, they're
just kind of run-of-the-mill school vax cases. You'll see
those in your dec. These are a couple of cases that stand for
the principle that I just gave you, which is, respectfully,
Your Honor, it's not your prerogative necessarily to pick and
choose which Supreme Court precedent you're fond of or not, and
the Seventh Circuit has recognized that, and certainly the
Supreme Court has recognized that.
We believe that this is your standard. For you to
disregard Jacobson, you would have to be very sure that the
Supreme Court was going to do that. And quite to the contrary,
I think we can be very sure that they're not, because the cases
that plaintiffs rely on don't go that far. Setting aside
Buck v Bell, these are First Amendment cases. They are
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certainly COVID Supreme Court cases. They are First Amendment
cases that either don't have majorities or the majority finds
one thing but the dissent finds something else. They're not
Fourteenth Amendment cases. They're not mandatory vaccine
cases. And several of them say really nice and helpful things
for IU.
For example, in Roman Catholic Diocese -- and this is
the case that I think that plaintiffs would say is kind of
their main case -- that's a First Amendment case, not a vaccine
case. The only substantive analysis of Jacobson in that case,
Judge, is in the concurrence. So there is no substantive
analysis of Jacobson anywhere but there. The per curiam
doesn't cite Jacobson.
This was a First Amendment injunction based on church
restrictions where, you know, you could have unlimited people
in the shopping mall, but very few in the church. And in the
concurrence, they walk right through. This is very different,
and it cautions against applying Jacobson in First Amendment
cases.
We don't disagree, Your Honor. We're not standing
here -- I'm not standing here asking you to apply Jacobson to a
First Amendment case. I'm asking you to apply Jacobson to a
case that is squarely on point with Jacobson, which is a
Supreme Court case that hasn't been overturned.
The other things that --
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THE COURT: What about the masking, the additional
requirements? Because, of course, the students are challenging
this on a First Amendment basis. So what is your view in terms
of how I analyze that portion of the policy? Is that Jacobson
or something else then?
MS. RICCHIUTO: I'm not sure that we agree that they
have a First Amendment challenge to masking.
I know that, every once in a while, Mr. Bopp says
"free exercise," but they don't have a First Amendment claim in
this case, Judge. They have one count, and it's for
substantive due process.
The concurrence in Roman Catholic confirms that
Jacobson applied the right standard for the circumstances. It
confirms that Jacobson met rational basis and says it may even
have survived strict scrutiny. It also confirms that the issue
there did not constitute a serious and long-standing intrusion
into settled constitutional rights.
And let's remind ourselves, Jacobson was criminal.
This is not -- the circumstances with IU are certainly far
short of throwing people in prison if they do not get
vaccinated.
Applying Jacobson is not disregarding the
Constitution, Your Honor, or even disregarding rational basis.
It is applying the correct standard for the claims that
plaintiffs have brought. So it doesn't require you to make a
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finding one way or another about whether the pandemic is close
to over, right in the middle. We don't believe that that's a
finding that you have to make to decide this case. Jacobson
applies even if there's disagreement among the parties or even
experts about efficacy, validity.
I mean, it was very striking to me to read Jacobson
and see such a lengthy discussion of basically the disagreement
about the science at that time, right, concerns that maybe the
vaccine wasn't as efficacious as some thought, concerns about
possible side effects. I mean, we're talking about 1904. It
was the same conversation. And what the Court found there was
that the minority doesn't get to dictate the policy for the
policy makers, that the policy makers are entitled to take in
the information that's available to them, make decisions about
the way that they are going to -- you know, govern isn't
exactly right, but, you know, the policies that the people they
are policy makers for are going to be subject to.
And the Chief Justice, in another one of his
opinions, cautions against, you know, you sort of feeling like
you have to take on the burden of deciding exactly on, you
know, what's the precise risk of myocarditis or what's the
precise risk of long-haul COVID, which there's lots of
testimony that students this age, they don't necessarily die,
but they get long-haul COVID, and the long-term symptoms of
that are not known. That's something else that's in the record
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as a serious concern for IU.
And then I think the briefing may say that we don't
have authority after Roman Catholic, applying Jacobson, and so
these are just a couple of examples of authority that does do
that.
So absent Jacobson, if you determine, for example,
Your Honor, that that is limited to its facts or only applies
in a pandemic, then unquestionably we are at rational basis
scrutiny. There is no fundamental right that is actually
implicated by the vaccine requirement, and that is because of
the conversation that we had about these plaintiffs having a
choice.
Now, these particular plaintiffs, all except for one,
are exempt on the vaccine. But even more broadly, there is
absolutely a choice, albeit possibly a difficult choice, that
these plaintiffs have. No one is forcing anything to go into
their bodies. No one is -- I think their brief talks about
organ harvesting or sterilization. I mean, these are not --
those are very false equivalents, Your Honor.
THE COURT: It's still rather coercive, though,
particularly with respect to the Ph.D. student who is on the
eve of obtaining two Ph.Ds, right?
MS. RICCHIUTO: She has an exemption so she is not
required to be vaccinated, and her testimony at her deposition
was that she most likely would attend IU regardless of the
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status of the injunction.
So these are the fundamental rights. Some of them
Mr. Bopp talked about today. Some of them, you know, we really
tried to look through their papers and see which were the ones
that we thought they were claiming, and none of them are
implicated for the very, very, very important fact that these
students have a choice about whether to be vaccinated.
Masking and testing, that's already been decided,
whether those implicate fundamental rights. We've got cases in
our briefs, and here there's the masking case, the testing
case. I don't know that I've heard him contend that those
are -- again, in the due process context, Your Honor -- that
those are strict scrutiny, but I think that those arguments
have already been disposed of.
So in the absence of a fundamental right, you know,
you are contending with rational basis analysis. We believe
that we could meet strict scrutiny. IU's interests are
compelling. The Supreme Court has said that COVID is
unquestionably a compelling interest. They're continuing to,
you know -- right up to the Judge Hamilton decision, the
Seventh Circuit decision that plaintiffs rely on, that was in
March, and that continues to describe COVID as, you know, very
deadly and a serious concern.
Again, whether or not you -- you don't have to decide
specifically where we are in the life span of the pandemic. To
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your point earlier to Mr. Bopp, no one in any authoritative
position has said that it's over. The federal government
hasn't said that it's over.
I think policy makers all around are changing
restrictions as they have throughout this entire pandemic to
try to best meet the needs of their constituents. But the fact
that there are double the cases in Indiana than there were just
on July 6th tells us that the pandemic is not over. So I think
the issue of IU having a compelling interest, and then
obviously certainly a legitimate interest, should not be
subject to much dispute.
I think you pointed out that Governor Holcomb also
again made -- these are observations, right -- but that 98.5
percent of new cases are with unvaccinated individuals. So IU
has a very, very, very reasonable interest in minimizing the
number of unvaccinated individuals that it has in its
community, not eliminating. It's not going to be zero. They
can't -- they're not going to get to 100 percent vaccination.
They haven't set -- you know, they have religious exemptions.
They have these medical exemptions. They're doing it as
narrowly as they can while absolutely encouraging as much
vaccination as they can accomplish. And Dr. Carroll, you know,
testified to that very clearly.
IU also has, you know, a very wide range of data that
it has considered about the safety, the efficacy, the amount of
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testing. Dr. Beeler has lots of testimony on that and all the
things that they considered.
We also have, when it comes to tailoring, the federal
guidance. And then, as I pointed out, Your Honor, this issue
of, you know, everybody is not getting tested everyday, right.
Regardless of whether you're vaccinated, they're not saying,
"Every single person tested for COVID everyday. Everyone has
to wear a masking while they're sleeping. Everyone has to have
three doses of the vaccine instead of the mandatory two."
They're adhering as closely as they can to what the guidance
is, given that the other piece of the guidance is, unvaccinated
are at highest risk. Vaccine is the strongest tool that we
have. That is unquestionably -- that's unquestionably
reasonable.
So then we get to irreparable harm. From our
perspective -- although the constitutional analysis might be
more intellectually interesting for all of us -- we also
believe that they just cannot meet the standard of irreparable
harm.
Ms. Sperazza, again, is the only plaintiff who
potentially has a problem with the actual vaccine requirement.
Of course, IU is not interested in having her leave the school,
and they would love to have her remain a student, but the
Hodges case talks about her choices. The exempt plaintiffs
certainly don't have irreparable harm.
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Speculative concerns about future events. So there's
some testimony that you may see in the depositions about
concerns about segregation or discrimination or, you know, "My
professor won't be able to hear me" or "No one will want to be
my friend." You know, certainly we hope that none of those
things happen. We don't have any expectation that they will
happen. But as of today, those are speculative and
hypothetical, and they are not irreparable.
Also, there are several students who -- because let's
remember, a lot of these students are past freshman, so they
were at school, last year, you know, masking all the time and
testing very routinely. And none of them -- we asked them
about all of that in their depositions, and none of them
claimed any ongoing harm from the testing that they did.
Ms. Sperazza even testified that, at one of her jobs,
she could take a break from her job if she would volunteer to
get COVID tested, and she did that three or four times just to
have some time off work. So the idea that they have -- not
everybody has had a COVID test. But the ones that have had
COVID tests, some of them have had many. And that you would
voluntarily submit to it for other reasons and then say, "But,
no, when I'm in Bloomington this Fall, it's irreparable harm,"
the law just doesn't bear that out.
There's this concern about timing. Will the students
get to choose, you know, kind of when they get tested? There's
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not a set schedule about how often they'll be tested. So all
of that falls under, you know, either speculative or
inconvenient or both. Neither of those are irreparable.
And we -- this is on our Exhibit 320, Your Honor --
321. Excuse me. We have some charts that we thought might be
helpful to you or your clerks that talks about all of the
relevant testimony from the plaintiffs specific to the basis
for their objection, so what type of objection do they have;
what's their alleged harm from masking and testing, again
including the extra requirements; and then how often had they
done that in the past.
There are no plaintiffs in this case, Your Honor,
that have never worn a mask. There are no plaintiffs in this
case, Your Honor, who have testified to any type of like
medical injury or ongoing irreparable harm based on wearing a
mask. So it really just comes down to "I've done it everywhere
I've been required to do it" -- or sometimes not. You know,
some of them were candid and said, "I don't comply with masking
requirements" -- "but when I get to IU, I shouldn't have to do
it. And not only should I not have to do it, that's
irreparable," and we don't think that that's an adequate
showing of irreparable harm.
If you look at plaintiffs' reply brief, they don't
particularly try to dispute any of these specific pieces of
testimony about whether there's been harm. They ask you to,
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instead, presume harm. Obviously, that's a little bit -- we've
had a couple of different conversations today that felt a
little circular or begging the question, but we think that this
is one.
Irreparable harm has been presumed in certain type of
constitutional cases, First and Second. It's not been presumed
in a case just like this where it's substantive due process on
some basis that's not, you know, actual incursion into bodily
integrity.
So if IU were lining everybody up, you know, and
giving them vaccines against their will, that would be a
different set of facts. That's not what we have here.
So the law doesn't permit you to just presume
irreparable harm here. And, in fact, this Campbell case, which
is a Seventh Circuit case, it really urges you to not be sort
of overbroad about assuming irreparable harm just because
there's been a constitutional claim.
You know, sort of in the back of our head, we think,
"Well, if it's Constitutional, maybe there's some kind of
presumption," and that's not exactly what the law says. There
can be, for example, money damages available in the context of
a constitutional harm.
So, then, again, if we get this far, Your Honor, then
we get to the balance of harms and the public interests. What
the Seventh Circuit says in that Cassell case, the Judge
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Hamilton case that's pretty recent, that affirms denial of an
injunction. I think Illinois, "stay at home." That's a First
Amendment case.
Just as an aside, it does not actually say that
Jacobson doesn't apply to substantive due process. It does
acknowledge that maybe things are -- the winds are starting to
change when it comes to the First Amendment. We don't think
that that's a thing that you have to concern yourself with for
purposes of this analysis.
But what's really compelling about this opinion is
that it takes into account more than just the plaintiffs. So,
how -- and, again, when it comes to the vaccine itself, we're
just talking about one plaintiff, Your Honor. So you're
talking about one plaintiff, who would prefer not to get
vaccinated, has the option not to get vaccinated and to go on
and have a very happy and successful life, not having gotten
vaccinated, and weighed against the body of IU's community as a
whole, including lots of people who don't get to make a choice,
people who are immunocompromised who really cannot get
vaccinated and maybe would prefer to, people who have family
members who are at risk.
And what this Cassell case talks about is the concept
of personal choice when that personal choice increases risks
for others. It's one thing to make a decision about what I
want to do with my body when there's no way that what I do with
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my body can impact other people. What Cassell says is this is
something different. You do have a choice about what to do
with your body. But when it comes to an analysis like this, we
also get to take into account, your choice about your body,
what impact that might have on other bodies, and there's this
nice line about "COVID can sicken and kill those who did not
consent to the trade-off," so that's not to minimize these
plaintiffs' right to decide that they don't want to be
vaccinated.
THE COURT: Doesn't that draw an interesting
distinction, then, between what the students are characterizing
as the bodily autonomy cases in Cruzan and Glucksberg? If
Cruzan is about denying unwanted hydration and nutrition, and
Glucksberg is about, you know, any right to assisted suicide,
do you view those cases as necessarily looking at an individual
right without repercussion or ripple effects to the greater
community?
MS. RICCHIUTO: I think that's right, Your Honor. I
mean, they also, you know, sort of deal with the inverse,
right, where it's my right to not have treatment. And here I
think plaintiffs would say, "You're requiring us to get medical
intervention that we don't want."
But that's exactly right. I mean, someone who
decides to end their life medically, obviously, undoubtedly,
that has an impact on their friends and family -- and, you
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know, I don't mean to say that that life is not important --
but it does not cause all the people in their house or in their
school or in their class or in their dorm room to fall ill.
And so that is an important distinction here when it comes to
the balance of harms, and that is what the analysis is in this
Seventh Circuit Cassell case, which is, again, I think, from
March of this year, that we think is really instructive on the
balance of harms.
Aaron Carroll -- Dr. Aaron Carroll's declaration and
his testimony, IU's goal is this: They are trying to get as
close to normal as they can safely get for their constituents.
And based on very, very, very considered and robust analysis,
they have concluded that this is the very safest and most
reasonable way to do that.
So I know my time has expired. I appreciate your
attention, Your Honor.
THE COURT: Thank you, Ms. Ricchiuto.
Mr. Bopp, before you do your rebuttal, I think I'm
going to take a break, if you'll forgive me and allow me. I
think everyone could use a break. We've been going at some
distance here at this point, so bear with me. We'll come
back -- I'll come back at 4:30. We'll take a 20-minute break
here, and then I'll hear your rebuttal.
MR. BOPP: Thank you.
LAW CLERK: All rise.
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(All comply; short recess taken.)
MR. BOPP: I've excerpted my excerpts.
THE COURT: All right. Very good.
MR. BOPP: Thank you, Your Honor.
I'm going to start with a few rebuttal items.
I don't know why IU wants to tell you about their
secret non-enforcement policy regarding the medical exemption.
There's two ways of looking at that. That either
indicates a due process violation because they're acting
arbitrarily and capriciously and granting exemptions to people
that don't qualify under the written policy, or they're asking
you to not address the policy itself because they don't enforce
it.
Actually, that second thing I've litigated and won, I
think, in six circuits, and that is, the fact that the
administrators don't follow their own policy does not immunize
the policy from constitutional challenge because, as courts
would say, they could just return to the policy. In other
words, at any time that they choose, arbitrarily and
capriciously, they can just go back to the policy, as opposed
to their secret non-enforcement policy. So their policy is
still on the table.
Second, this position about there's something
different between the mandate of the vaccination and the
exemptions puzzles me. If they're right and you would, as we
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hope, enjoin the mandate for the vaccination, well, what would
the exemptions be exempting you from? I mean, it's
nonsensical. They're inextricably linked, because the
exemption is from the vaccine mandate. So they're not like
separate policies, and nor can the exceptions stand alone
because they make no sense standing alone.
Third, you know, Jacobson's core holding they've
abandoned, and I'm glad because I think we've been arguing that
this case should be litigated either under the exception that
Jacobson recognized or under modern constitutional
jurisprudence, because the central holding of Jacobson is that
this Court has no authority to review, question, or even take
evidence about policies that are adopted in the name of public
health. And, of course, they affirmed the trial court, the
district court, that refused to take evidence because the trial
court gave the government bureaucrats cart blanche in
determining what public health measures should be adopted and
whether they're reasonable or whatever.
Now, the exception, however, does demand that this
Court decide and take evidence on whether the action taken is
"reasonably required for the safety of the public," reasonably
required for the safety of the public.
Now, you hear nothing -- there's nothing in the
record that IU applied that standard. They weren't looking for
reasonable measures, because they were quite clear -- and this
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is in the excerpts on Exhibit 206 from Carroll -- that their
goal was to be as safe as possible. In other words, not adopt
reasonable measures to be safe as possible, but to be as safe
as possible. So they have just, you know, picked one, and it
happens to be the most extreme measure, in our opinion,
obviously the most rights violative, and that's what they have
implemented.
Now, if they just can do whatever they think is safe
as possible, number one, it has led them to the irrational
position that they are going to impose measures until there are
no or virtually no infections at all. Well, what disease has
that situation? I mean, very few. A few have been eradicated,
hopefully. But zero infections when these measures are being
instituted in the name of a pandemic? That they are entitled
to pick whatever measure takes them to zero infections? And I
have excerpts here, not only -- Number 206 is what their goal
was, to be as safe as possible.
But the next one is when they were talking about herd
immunity -- in other words, when can they back off -- they
said, Beeler said, "I would expect to see zero or very low, no
new positive cases." "I would expect to see zero or very close
to zero percent positivity in those testing with adequate
testing going on." That's when they're going to back off the
mandate, when there's zero.
Now, it is true -- or virtually zero. Now, it is
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true that Carroll acknowledges that's an impossibility and all
that, but that is their goal, and it's repeatedly their goal
and why they have adopted these measures. They didn't measure
this on the basis of reasonableness or rationality. They
measured it on the basis of: Our goal is to be as safe as
possible to get to zero or to virtually zero.
So that answers your question. When are they going
to back off? Never, never, because they'll always have a
justification because there will very likely always be COVID
infections out there, at least one or a dozen or maybe a few
hundred or whatever.
Now, you know, their position -- you brought up the
question of the HPV vaccine. And, of course, their position
would be on that, "Well, we're entitled to do what is the most
effective means for public safety," most effective means, not a
reasonable means but most effective means for public safety.
Well, why just do the vaccination? Why not prohibit
anyone that is HPV positive from having sex? Because it is
transmitted that way. So if they get cart blanche authority
and it's not judged by true reasonableness, evidentiary-based
reasonableness when you have to make a decision that the
current situation justifies it, well, then, they just have cart
blanche to do all sorts of things.
Now, that takes me to Exhibit 319, and these are
those graphs that they had up on the screen. You know,
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everything like this pandemic goes up and down day-to-day. You
know, there's more cases one day and fewer cases the next day
and bam, bam, bam, bam. So what you do is you look at the
trend line. You don't do what they did, pick out three days in
this graph and say, "The cases are going up," three days in a
pandemic that has lasted for a year-and-a-half. No. She
didn't show you the trend line, and we have that in our
evidence.
You also -- if you really want to understand what is
happening, you also don't do what they did in the second graph,
all right, that has this long sloping thing down and long
sloping up.
This side of the graph is -- the top is not 100
percent. The top is 4 percent. And then to make it bigger,
they have 3.5 and 3. So they even went to the .5 to make that
larger, okay, so that the slope looks bigger, all right. And
then from here to here (indicating) is within 1 percent. That
whole line is within 1 percent on that graph, all right. And
the part where this part goes up is two weeks in an infectious
disease that has been going on for a year-and-a-half.
And what? What? They're going to make long-term
policy, you know, consider here mandating a vaccination for an
entire semester? They're going to justify that based on what
happened in three days or over two weeks that was less than a 1
percent increase, less than a 1 percent increase?
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This line, if you would normally graph it, it would
be way down there, okay. And everybody would look at it -- you
know, you'd have 100 percent down to zero percent, and you'd be
right down here -- and they would say, "Well, whatever," okay.
So these, unfortunately, don't really help the
decision because you have to look at the overall progress of
the disease, which takes me to Exhibit 222, all right. This is
the graph of the progress of the disease with respect to
positive cases, all right.
You see way down here on the right, way down at the
bottom, that's where this is, all right. And anyone looking at
this chart would say, "Wow, have things changed," you know.
At the heighth, there were 5,628 positive cases a
day, all right. And by July 8th, there's 395. That is an
86 percent decrease in the number of cases. And we are down
toward, you know, a stabilization, if you will, of the numbers.
Now, everybody that talks about dealing with
pandemics always says that things could change and things could
happen in the future, and there's no question about that. And
that, to a certain degree, they're all different, to a certain
degree. But that doesn't invalidate the whole idea -- and now
I'll go to 229 -- of IU's policy.
They adopted this policy. They say, "The purpose of
this document is to provide guidelines for the response to a
wide variety of infectious disease threats to Indiana
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University." So it's not limited to the flu or something like
that. They want to give thoughtful, advanced guidance on how
we're going to look at these problems and deal with them, all
right.
THE COURT: This is the policy that existed prior to
the COVID policy, right?
MR. BOPP: Yes, because it was adopted for any
infectious disease threat, okay.
And the evidence is they didn't -- in the report,
they didn't cite it. They didn't quote it. They didn't
analyze it in accordance with the policy.
And even though there was, you know, some quibbling,
I think a fair reading of Dr. Carroll's answer, numerous
answers on this one question, "Did you talk about it," was they
didn't even talk about. In other words, they did it ad hoc as
if this was sui generis, and it's not, all right.
You turn to the next exhibit, 212. These are the
levels, all right. And each level requires a different policy
response. And if you go -- and this was attached to the
policy. This is attached to the policy, all right, and
referred to in the policy. If you go to the far right side,
you see "recovery". And then you see -- under "warning and
threat," you see -- first you see a reference to "WHO," then
"U.S. 6." But then you see "CDC deceleration" and "CDC
preparation."
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Those are references to a CDC publication that, just
like this policy -- and they're using the CDC -- established
how you are to deal with infectious diseases, all right.
Now, I'm going to reserve this one for one second and
go to the next one, the chart, Exhibit 230.
This is the CDC chart on the progress of infectious
diseases. It's a bell curve, right. And if you turn back to
what happened with respect to COVID, that's a bell curve. And
they look very similar, don't they?
Well, they have come to understand that when you are
in different phases of a pandemic, then you will have a
different response. And they have named the phases here, all
right: Investigation, recognition, when it's just starting
off, just starting off; then acceleration; initiation when it
begins it's upward trajectory; then acceleration when it really
goes up fast, right there. You get to the top. Then you have
deceleration, and then it levels off into preparation.
Now, they tell you you're supposed to do different
things at the different phases. And looking at their chart, if
we're not at least in the middle between deceleration and
preparation, then we're in preparation. We're certainly at the
end of deceleration if we're even -- if we haven't passed it,
all right, in terms of the graphing of the pandemic.
Now, going back to Exhibit 231, they tell you what
you're supposed to do, okay. And they say -- on the second
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page, here's deceleration, all right. This is the deceleration
intervals indicated by a consistently decreasing rate of
pandemic, influenza cases -- and they use that as an example --
in the United States. And that's, of course, exactly what we
see there in the deceleration phase.
"During this interval, planning for appropriate
suspension of community mitigation measures and recovery
begins."
No, deceleration isn't the time to whip on some
massive regulation like forcing everybody to be vaccinated.
No. It's the time for suspension of mitigation measures
because of recovery and plan for recovery to begin.
Then, preparation, which is the next phase, the
leveling off at the end phase. It says, "Primary actions focus
on discontinuing community mitigation measures."
They're no longer justified. That's why the
situation matters. They want you to pretend that this doesn't
happen and all we're supposed to do is add up all the deaths.
And I suppose the more deaths, the more Draconian they can be,
even though we're in the final stage of the pandemic. We're in
the final stage where the risk of death -- well, risk of
infection, of death, of everything, has now gone down at least
85 percent. One of the exhibits we present to you says
95 percent from the CDC. It says 95 percent it has gone down
from the top, all right.
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
And in those -- and so -- and that is why --
THE COURT: So, Mr. Bopp, let me question you on
these intervals that are set out here. There's the
deceleration interval and then the preparation interval.
Deceleration interval is defined as when no new cases
are occurring or are occurring infrequently. The preparation
interval, at least as stated in this exhibit, is when a
pandemic is declared ended, when evidence indicates that
influenza worldwide is transitioning to seasonal patterns of
transmission.
Today, are we in either one of those circumstances?
MR. BOPP: Yes. In fact, we are in -- we are just
reaching seasonal -- the seasonal burden of influenza. Look at
Exhibit 259. This is the estimated burden of -- the burden
historically of influenza, seasonal influenza, in the United
States per year, all right.
I didn't put it with my excerpts of my excerpts, but
Exhibit 258 has the information on July 9th, in terms of the
7-day average of deaths per day, okay, which is now down to 154
per day. If you multiply that by 365 to put it into a yearly
basis, all right, it would be 56,210. That is under the worst
seasonal influenza we've had.
Now, I'm not saying we should declare it over. I'm
not saying that. This chart is pandemic intervals. It's not
like -- preparation is not you're no longer in the pandemic.
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
You're just in a much different phase. And that phase, they
say, logically, means because all the risks and consequences
and spreads and all that has ameliorated so much that you can
start lifting these restrictions. That's what everybody is
doing. They're not being crazy, you know.
THE COURT: All right, Mr. Bopp. I think your time
has run. I have a couple questions before you sit down, if I
might.
Thank you for your rebuttal, first of all.
We haven't addressed this today in argument, thus
far, but I want to make sure that you understand the students'
position. Aside from the constitutional issue, there is the
issue of Indiana's anti-passport law, if I can fairly
characterize it as such.
MR. BOPP: And we've withdrawn that claim.
THE COURT: You have withdrawn that?
MR. BOPP: Yeah.
THE COURT: Okay. So I need not decide anything
related to that?
MR. BOPP: No. In our footnote, we said we hadn't
thought of the question of a private cause of action. We
researched. I don't think we said that, but we did research
it. We hadn't thought of it, and we did research it, and we
decided IU is correct on that.
THE COURT: All right. That was one of my questions,
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
and thank you for that clarification.
Second, is there not something rational about the
university's concern that the additional requirements won't
prove enough; in other words, that it won't stem the tide of
any pandemic that may linger, that students won't comply, that
it's a difficult policy to police?
MR. BOPP: Yes.
THE COURT: Now, for instance, just as an example,
the policy of this federal building is that anyone who is
vaccinated need not wear a mask; whereas, anyone who is not
vaccinated is supposed to wear a mask in this courtroom and in
this federal building. And we have followed, and I follow, the
honor system whereby people do what they're supposed to do in
terms of how they conduct themselves, not just in this
courtroom, but in the federal building.
If there are people in this federal building,
including in this courtroom, who are not vaccinated and who
should be wearing masks, according to the policy that this
federal court has implemented, is that not judicial notice or a
basis for me to take judicial notice that perhaps the masking
additional requirements and other additional requirements that
the university has in place won't prove enough for the safety
of the campus this Fall?
MR. BOPP: Well, if it doesn't, then they have a
basis to take action.
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
And if you look at the last page of Exhibit 231, in
the preparation stage, one thing you're supposed to do is --
well, it's defined as low pandemic influenza activity, but
continued outbreaks possible, okay, and you're supposed to plan
for those, all right.
THE COURT: But my question is: Isn't there
something rational about the university's position or belief
that the additional requirements, while they may be
well-intended for those who are exempted, nonetheless, won't be
enough come this Fall, because, like it or not, even when
there's a requirement to wear masks when you're not vaccinated,
people will flout the rules?
MR. BOPP: No, because that's not evidence-based.
That's speculation, you know.
THE COURT: Is it speculation in this courtroom right
now?
MR. BOPP: Well, I don't want to comment on that, but
I -- but, you know, you can't strip away people's rights on the
basis of speculation. You know, you have to have adopted a
reasonable measure that's evidence-based.
In the preparation phase, which I believe we are in
here in Indiana and the United States and certainly at IU, I
mean, herd immunity, according to their question and answers,
is a majority vaccinated, majority.
Beeler kind of raised the bar in his deposition. He
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
said 60 to 80 percent. Well, 75 percent of IU students are
vaccinated. So by their own definitions, we've reached herd
immunity. And, of course, they don't even take into account
people that are naturally immune because of infection.
But you are -- in the preparation phase, you are to
substantially reduce your mitigation measures, which is another
way of saying "take off restrictions that violates people's
rights because they're no longer justified by the level of the
pandemic, but get ready for another outbreak. And when you see
that coming, then you take additional measures."
And of course you do. I mean --
THE COURT: All right, Mr. Bopp. I think I've got
your point.
MR. BOPP: All right. Thank you, sir.
THE COURT: Thank you, sir.
All right, ladies and gentlemen. Thank you for your
submissions, your written submissions. Earlier, of course, how
you've organized and compiled the exhibits to ease my review as
best you could, particularly under circumstances that were
emergent themselves in just a short couple of weeks, that is
very much appreciated by me in enabling my review.
Likewise, let me commend counsel for today's
performance, your remarks, your responsiveness to my questions,
and the nature and quality of your presentation. That also is
very much appreciated. And your clients on both sides, no
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
matter the result from this preliminary injunction request,
should be very happy, pleased, proud of your performance on
both sides.
I know there is an urgency to a ruling, and I do not
intend to tarry long. That being said, as anyone can see, I
have stacks and stacks of paper. And I have devoted many hours
already in its review, but I have more to think on and to
review even after the arguments this afternoon.
So I won't give you a firm prediction on when to
expect a ruling, but it will be very, very soon. And I
understand that the parties on both sides have an interest in
not just a deliberate decision but as immediate one as I can
perform, so I will certainly put my full effort into this case.
And I have been able to clear a couple days yet this week,
notwithstanding the importance of other matters, to tend to
this one, so I've allotted some time for that purpose. So with
those comments, I will take the matter under advisement and
hope to have a ruling out very soon.
That all being said, Mr. Bopp, anything else for your
clients, the students, today?
MR. BOPP: No. Thank you, again.
THE COURT: Thank you, sir.
Ms. Ricchiuto, anything else for the university
today?
MS. RICCHIUTO: No. Thank you so much for your time.
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Debra J. Bonk, Federal Certified Realtime Reporter
Debra_Bonk@innd.uscourts.gov / (574)246-8039
CERTIFIED TRANSCRIPT OF PROCEEDINGS - JULY 13, 2021
THE COURT: Thank you. Thank you both, as well.
Thank you.
All right. We'll stand adjourned.
LAW CLERK: All rise.
(All comply; proceedings concluded.)
***
CERTIFICATE
I, DEBRA J. BONK, certify that the foregoing is a
correct transcript of the record of proceedings in the
above-entitled matter.
DATED THIS 22nd DAY OF JULY, 2021.
S/S DEBRA J. BONK
DEBRA J. BONK
FEDERAL CERTIFIED REALTIME REPORTER
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