Court filing

Brief - Scotus

What This Document Is

A combined motion for leave to file, and a 6-page amicus brief, filed January 3, 2022 in No. 21A240 by two advocacy organizations — Doctors for Disaster Preparedness (self-described as a group of scientists including physicians) and the Eagle Forum Education & Legal Defense Fund — opposing the government's stay application. Counsel: Andrew L. Schlafly (sole counsel, Far Hills, New Jersey). The motion sought leave to file without ten days' notice or party consent, citing the expedited schedule and intervening holidays.

Factual Summary

Unlike the states' briefs (which argue statutory authority and procedure) and the other respondent-side amici (religious liberty, operator staffing data), this brief attacks the premise of the mandate itself, contending that "[t]he Covid vaccine strategy is a colossal failure." Its contentions, all presented as the amici's own claims:

Citing Worldometers data (viewed Jan. 2, 2022), it argues the U.S. had the world's highest COVID-19 case and death counts despite a year of vaccination, comparing U.S. figures against India and Vietnam (333 deaths/million in Vietnam vs. 2,538 in the U.S.).
It attacks the same-docket AMA and public-health amicus briefs by name, arguing their "the science is clear" assertions are circular and quoting the AMA brief's own conclusion as a "non sequitur"; it also quotes Dr. Anthony Fauci's November 28, 2021 "I represent science" remark as emblematic of the approach it criticizes.
It argues government briefs ignore the Vaccine Adverse Event Reporting System (VAERS), citing a third-party VAERS-analysis website's tallies (983,758 reported adverse reactions; 108,572 hospitalizations; 20,622 deaths reported through mid-December 2021) and asserting reported deaths "may be only a small fraction of the actual number."
It contends other countries succeeded through over-the-counter early-treatment access (hydroxychloroquine, ivermectin) and natural immunity rather than vaccination.
Legally, it distinguishes Jacobson v. Massachusetts (1905) as a state law imposing "a small fine," and links Jacobson to Buck v. Bell (1927) — quoting the "[t]hree generations of imbeciles" passage — to argue against extending compulsory-vaccination reasoning.
It closes by adopting the states' rural-healthcare arguments and asking that the stay be denied.

Key Facts

Filed 2022-01-03 in No. 21A240, in opposition to the stay application; sole counsel Andrew L. Schlafly. The brief identifies Phyllis Schlafly as Eagle Forum Education & Legal Defense Fund's 1981 founder.
The only filing in this docket directly attacking COVID-19 vaccine efficacy and safety as such, and the only one engaging other amici's briefs (AMA, APHA) by name.
Relies on Worldometers and a third-party VAERS-analysis site as primary data sources.
Invokes Jacobson v. Massachusetts and Buck v. Bell as cautionary precedent against compulsory-vaccination reasoning.
Rule 37.6 disclosure: authored entirely by amici's counsel; no party funding.

Source Caveats

The brief's medical and statistical contentions are the amici's advocacy claims, reported here as attributed contentions only. In particular, its VAERS figures come from a third-party analysis website, and VAERS itself is an open, unverified reporting system whose reports do not establish causation — a limitation the brief's framing does not adopt; its efficacy claims about hydroxychloroquine/ivermectin and its country comparisons are likewise contested characterizations not endorsed by any court in this proceeding.
Use the linked source file for exact quotations and the full citation trail.

Full text

No. 21A240

In the Supreme Court of the United States

JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED STATES, ET AL.,

Applicants,

STATE OF MISSOURI, ET AL.,

Respondents.

ON APPLICATION FOR A STAY OF THE INJUNCTION ISSUED BY THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI

MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF AND BRIEF OF
DOCTORS FOR DISASTER PREPAREDNESS AND EAGLE FORUM
EDUCATION & LEGAL DEFENSE FUND IN OPPOSITION TO APPLICATION
FOR A STAY OF THE INJUNCTION

ANDREW L. SCHLAFLY
939 OLD CHESTER ROAD
FAR HILLS, NJ 07931
(908) 719-8608
aschlafly@aol.com

Counsel for Amici Curiae
MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

Amici respectfully move for leave to file the enclosed brief as amici curiae in

opposition to the application for a stay of the injunction issued by the United States

District Court for the Eastern District of Missouri, including leave to file without

ten days’ notice to or consent by the parties, and leave to file in 8½- by 11-inch

format. In light of the expedited briefing schedule and the intervening holidays, it

was not possible to obtain consent from the parties prior to filing, but counsel for

Amici has informed counsel for the parties of his intention to file this motion and

brief.

Amici are the Doctors for Disaster Preparedness, a group of scientists

(including physicians) founded in 1984, and Eagle Forum Education & Legal

Defense Fund, founded in 1981 by Phyllis Schlafly. Amici oppose unjustified

mandates like the CMS Covid vaccine mandate, and have a strong interest in

protecting access to medical care in rural America free of interference by federal

vaccine mandates.

Amici respectfully move for leave to file the accompanying amici curiae brief

in opposition to the application for a stay of the injunction.

Dated: January 3, 2022 Respectfully submitted,
ANDREW L. SCHLAFLY
939 OLD CHESTER ROAD
FAR HILLS, NJ 07931
(908) 719-8608
aschlafly@aol.com

Counsel for Amici Curiae

ii
TABLE OF CONTENTS

Page(s)

Motion for Leave to File Amici Curiae Brief ................................................................ ii

Table of Contents .......................................................................................................... iii

Table of Authorities ...................................................................................................... iv

Interests of Amici Curiae .............................................................................................. 1

Summary of Argument .................................................................................................. 1

Argument ....................................................................................................................... 3

Conclusion ...................................................................................................................... 6

iii
TABLE OF AUTHORITIES

Cases Page(s)

Buck v. Bell, 274 U.S. 200 (1927) .................................................................................. 5
Jacobson v. Massachusetts, 197 U.S. 11 (1905) ............................................................ 5

Other
Analysis of COVID-19 Death Reports from VAERS,
https://www.researchgate.net/publication/352837543_Analysis_of_COVID-
19_vaccine_death_reports_from_the_Vaccine_Adverse_Events_Reporting_System_V
AERS_Database_Interim_Results_and_Analysis ........................................................ 4
CBS Face the Nation (Nov. 28, 2021) ............................................................................ 2
CDC Fully Vaccinated Rate,
https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total . 6
FDA, Coronavirus (COVID-19) Update: July 13, 2021,
https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-
update-july-13-2021) ...................................................................................................... 4
Natalie Grover, Covid-19 roundup: Hit with new conflict accusations, Janet
Woodcock steps out of the agency’s Covid-19 chain of command, ENDPOINT NEWS
(May 20, 2020),
https://endpts.com/covid-19-roundup-hit-with-new-conflict-accusations-janet-
woodcock-steps-out-of-the-agencys-covid-19-chain-of-command/ ................................ 3
Vaccine Adverse Event Reporting System (VAERS),
https://vaersanalysis.info/2021/12/25/vaers-summary-for-covid-19-vaccines-through-
12-17-2021/ .................................................................................................................... 3
Worldometers, https://www.worldometers.info/coronavirus/ ................................... 1, 5

iv
INTERESTS OF AMICI CURIAE1

Amici are the Doctors for Disaster Preparedness, a group of scientists

(including physicians) founded in 1984, and Eagle Forum Education & Legal

Defense Fund, founded in 1981 by Phyllis Schlafly.

Amici oppose unjustified mandates like the CMS Covid vaccine mandate, and

have a strong interest in protecting access to medical care in rural America free of

interference by federal vaccine mandates.

SUMMARY OF ARGUMENT

The Covid vaccine strategy is a colossal failure. Despite a year of vaccination

in the United States, more than in many other nations, the United States has

incurred by far the highest number of Covid cases in the world. 2 Second-place

India, which has four times our population, has had only about 60% as many cases

of Covid as the United States.3 In terms of deaths from Covid, the United States

has the most in the world, seven times the mortality rate in India. 4

But rather than be held accountable for their failed approach, agency officials

insist on more of what has failed. Mandating more of a failure hardly makes

1 The expedited schedule made 10-day advance notice and consent impractical, but the undersigned

counsel provided notice to counsel for the parties prior to filing this. Pursuant to Rule 37.6, counsel
for amici curiae authored this brief in whole, no counsel for a party authored this brief in whole or in
part, and no such counsel or a party made a monetary contribution intended to fund the preparation
or submission of this brief. No person or entity – other than Amici, their counsel, and the members
of Amici – contributed monetarily to the preparation or submission of this brief.
2 https://www.worldometers.info/coronavirus/ (viewed Jan. 2, 2022). Run by scientists and

independent of any governmental control, Worldometers.info is widely recognized as the most
credible source of data about Covid, as expressly cited by 16 federal and 5 state court published
decisions.
3 Id.
4 Id.

1
“common sense,” as argued by the Biden Administration. (Biden Br. 20, 24, 28)

The federal government’s approach to Covid has always assumed, without evidence,

that a vaccine approach would end or dramatically reduce the pandemic. Yet its

vaccine strategy has never made any sense and is the result of circular reasoning by

a few agency officials who insisted on imposing vaccines no matter what the

evidence shows. The amicus brief submitted by the American Medical Association,

et al., illustrates the fallacious logic, by repeatedly assuming what the evidence does

not support: “‘[t]he only way to truly end this pandemic is to ensure widespread

vaccination.’” (AMA Br. 13, quoting its own press release; see also AMA Br. 17 for a

similar unsupported assertion).

Both the Public Health and AMA briefs prominently use the same phrase:

“the science is clear.” (Public Health Br. 1; AMA Br. 15). The Public Health brief

repeats its assertion of “clear” five times in its brief in reference to science, evidence,

or a pandemic, even resorting once to the phrase “abundantly clear.” (Public Health

Br. 1, 2, 18) While promoting mandatory vaccination, the government official Dr.

Anthony Fauci declared that “I represent science,” and then insisted that his critics

are somehow opposed to science. CBS Face the Nation (Nov. 28, 2021). But science

does not fail as the Covid vaccines have, and it is not “settled science” to forcibly

impose a controversial vaccine on knowledgeable health care workers who

rationally decline.

2
ARGUMENT

Vaccines are not a successful approach to every pandemic, as the AIDS crisis

demonstrated 35 years ago. Likewise, the so-called Spanish flu of 1918 was not

overcome by a vaccine. Yet a handful of unaccountable federal agency workers

adopted a pro-vaccine strategy back in early 2020 amid their own conflicts of

interest, before any evidence was available, and have doubled-down on their

approach ever since despite numerous indications that it is a failure. 5

Notably missing from the many filings to this Court in support of the vaccine

mandate is any discussion of the Vaccine Adverse Event Reporting System

(VAERS), which is federally posted government data showing that “the total

number of deaths associated with the COVID-19 vaccines is more than double the

number of deaths associated with all other vaccines combined since the year

1990.”6 This is official data, and an admission by the same entity that seeks to force

millions of Americans to receive these same Covid vaccines. These data show to

date that the number of reported adverse reactions from these Covid vaccines is

983,758; the number of hospitalizations is 108,572; and the number of deaths is

20,622.7 British researchers analyzed the VAERS data and published a report in

5 See, e.g., Natalie Grover, Covid-19 roundup: Hit with new conflict accusations, Janet Woodcock

steps out of the agency’s Covid-19 chain of command, ENDPOINT NEWS (May 20, 2020).
https://endpts.com/covid-19-roundup-hit-with-new-conflict-accusations-janet-woodcock-steps-out-of-
the-agencys-covid-19-chain-of-command/ (viewed Jan. 2, 2022).
6 https://vaersanalysis.info/2021/12/25/vaers-summary-for-covid-19-vaccines-through-12-17-2021/

(emphasis added, viewed Jan. 2, 2022).
7 Id.

3
June 2021 confirming the reliability of this data, “[c]ontrary to claims” of

unreliability.8

Although the FDA itself has expressly relied on VAERS data, 9 and 475

reported federal court decisions have expressly cited to VAERS, the federal

government’s briefs to this Court fail to address it. Ignoring this harm by the

vaccine does not make it go away. There is no meaningful analysis of the harms

compared with purported benefits of the Covid vaccine, in the briefs filed in support

of the mandate. VAERS reports are merely a fraction of overall injuries because

many do not bother to file a report. The more than 20,000 deaths reported to

VAERS after the Covid vaccine may be only a small fraction of the actual number.

The AMA’s brief details at length harm caused by Covid, but then concludes

in a non sequitur that “[r]equiring healthcare facility staff to be vaccinated is

therefore a crucial step toward protecting healthcare staff and patients from

COVID-19.” (AMA Br. 10) While footnotes are throughout the AMA’s brief

supporting statements that demonstrate how completely the governmental strategy

has failed so far, there is insufficient support for the AMA’s assertions that

mandatory vaccination will help. Indeed, already most health care providers are

vaccinated, and yet Covid cases surge. Causing the unvaccinated workers to quit or

8 https://www.researchgate.net/publication/352837543_Analysis_of_COVID-

19_vaccine_death_reports_from_the_Vaccine_Adverse_Events_Reporting_System_VAERS_Database
_Interim_Results_and_Analysis (viewed Jan. 2, 2022).
9 FDA, Coronavirus (COVID-19) Update: July 13, 2021 (discussing concerns over VAERS reports of

Guillain-Barre syndrome following vaccination) (available at https://www.fda.gov/news-events/press-
announcements/coronavirus-covid-19-update-july-13-2021).

4
be vaccinated can hardly be expected to make a dent in the worst-in-the-world

Covid rates in the United States.

Other countries that have fared far better against Covid than the United

States are doing so by making medications available over-the-counter for early

treatment, such as hydroxychloroquine and ivermectin. Anyone can readily

purchase ivermectin at local retail stores in the formerly communist Vietnam

without a prescription or being retaliated against by the pro-vaccine public health

authorities. Natural immunity and early treatment, rather than a misplaced hope

in vaccination, is how countries less wealthy than the United States have overcome

the Covid pandemic. Vietnam has only 333 Covid deaths per million in population,

while the United States has eight times as many deaths per million: 2,538, as

reported by the independent worldometers site.10

In Jacobson v. Massachusetts, the divided Court upheld a law by a state, not

the federal government, which merely imposed a small fine on those who declined to

be vaccinated. 197 U.S. 11 (1905). Since then this Court has vastly expanded

individual liberties, while Jacobson became the basis for the inhumane utilitarian

mandatory sterilization decision by the Supreme Court in Buck v. Bell, 274 U.S.

200, 207 (1927) (“The principle that sustains compulsory vaccination is broad

enough to cover cutting the Fallopian tubes. Three generations of imbeciles are

enough.”) (citing Jacobson).

10 https://www.worldometers.info/coronavirus/ (viewed Jan. 2, 2022).

5
The entire American public cannot be compelled to be vaccinated, and many

tens of millions of Americans will never submit voluntarily to a Covid vaccine. A

partial vaccination approach that harshly penalizes a few million people by firing

them for not being vaccinated is punitive and doomed to failure, as the past year

has shown. The CDC admits that only about 62% of Americans have been fully

vaccinated for Covid,11 and adding a few million here or there will do nothing to

curb the virus. It will, however, cause irreparable harm in other ways, such as

reducing access to medical care in rural communities as thoroughly shown by

Missouri’s and Louisiana’s briefs. (Missouri Br. 1, 6, 7; Louisiana Br. 17, 18, 29, 38)

CONCLUSION
For the foregoing reasons and those explained by the States, the application

for a stay of the injunction against the CMS Covid vaccine mandate should be

denied.

Respectfully submitted,

ANDREW L. SCHLAFLY
939 OLD CHESTER ROAD
FAR HILLS, NJ 07931
(908) 719-8608
aschlafly@aol.com

Counsel for Amici Curiae
Dated: January 3, 2022

11 https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total (viewed Jan. 2,

2022).

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