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Brief - Scotus
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No. 21A244, 21A247
In the Supreme Court of the United States
_______________
National Federation of Independent Business, et al., Applicants,
v.
Department of Labor, Occupational Safety and Health Administration, et
al., Respondents
_______________
Ohio, et al., Applicants,
v.
Department of Labor, Occupational Safety and Health Administration, et
al., Respondents
On Emergency Application of Administrative Action and Petition for Writ of Certio-
rari to the United States Courts of Appeals for the Sixth Circuit
_______________
Motion for Leave to File and Brief of
The IU Family for Choice, not Mandates, Inc. as Amicus Curiae in Support
of Applicants; for Leave to File Without 10-Days’ Notice; and for Leave to
File Pursuant to Sup. Ct. Rule 33.2
_______________
James Bopp, Jr.
Counsel of Record
jboppjr@aol.com
Courtney Turner Milbank
cmilbank@bopplaw.com
Melena S. Siebert
msiebert@bopplaw.com
Cassandra Dougherty
cdougherty@bopplaw.com
THE BOPP LAW FIRM, PC
1 South Sixth St.
Terre Haute, IN 47807−3510
Telephone: 812/232−2434
Counsel for Amicus
Motion for Leave to File1
The IU Family for Choice, not Mandates, Inc. (“IUFCNM”) respectfully
moves for leave to file a short brief as amicus curiae in support of Applicants’
Emergency Applications for Immediate Stay of Agency Action Pending Disposition
of Petition for Review. Applicants consented to, and federal Respondents took no
position on, the filing of the enclosed amicus brief.
Amicus respectfully requests that the Court consider the arguments
presented in the enclosed amicus brief in support of Applicants’ applications in No.
21A244 and No. 21A247. The attached amicus brief will be helpful to the Court as it
considers the merits of the emergency application for immediate stay.
The brief demonstrates that this case presents a unique opportunity for this
Court to define the proper role of government in decisions impacting medical
treatment choice. In doing so, Amicus suggest that this Court take the opportunity
to provide guidance regarding the proper judicial review standards that should be
applied in such cases.
Statement of Movant’s Interest
IUFCNM is a grassroots coalition of Indiana University students, parents,
Alumni, and concerned community members advocating for medical autonomy and
equal treatment of all university students, faculty, and staff. IUFCNM stands firm
in its belief that everyone has sovereignty and freedom of choice to make medical
1
No counsel for any party authored the following amicus brief in whole or in
part, and no person other than amicus or its counsel made a monetary contribution
to its preparation or submission.
i
decisions regarding their individual health. IUFCNM opposes any form of medical
segregation or discrimination regarding access to education, employment, housing,
and community events.
As such, Amicus is dedicated to ensuring that mandates involving forced
vaccinations and forced medical treatments are analyzed under the proper applicable
constitutional standards.
Statement Regarding Brief Form and Timing
Given the expected expedited briefing and oral argument scheduled for
January 7, 2022, of Applicants’ emergency application for immediate stay, Amicus
respectfully requests leave to file the enclosed brief without 10 days’ advance notice
to the parties of intent to file. See Sup. Ct. R. 37.2(a).
Additionally, in consideration of the expected expedited briefing and oral
argument schedule, Amicus respectfully requests leave to file the enclosed brief
pursuant to the guidelines of Rule 33.2, including the reduced number of copies to
be submitted, instead of the guidelines of Rule 33.1 as required by Rule 21.2(b).
The expected expedited briefing schedule justifies Amicus’s request to file its
brief without the 10 days’ advance notice and pursuant to the guidelines of Rule
33.2.
ii
Conclusion
The Court should grant amicus curiae leave to file the enclosed brief in
support of Applicants’ Emergency Applications without 10 day advanced notice and
pursuant to the guidelines of Rule 33.2.
December 30, 2021 Respectfully submitted,
James Bopp, Jr.
Counsel of Record
jboppjr@aol.com
Courtney Turner Milbank
cmilbank@bopplaw.com
Melena S. Siebert
msiebert@bopplaw.com
Cassandra Dougherty
cdougherty@bopplaw.com
THE BOPP LAW FIRM, PC
1 South Sixth St.
Terre Haute, IN 47807−3510
Telephone: 812/232−2434
Counsel for Amicus
iii
Brief of The IU Family for Choice, not Mandates, Inc.
as Amicus Curiae in Support of Applicants
Table of Contents
Interest of Amicus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction and Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. COVID Vaccines Are a Medical Treatment, Not a Public Health Measure. . . . . . 3
A. The FDA Classifies the COVID Injections as “CBER-Regulated
Biologics,” or Therapeutics, Not as Traditional Vaccines. . . . . . . . . . . 3
B. COVID Vaccines Do Not Prevent the Spread of the COVID Virus. . . . 3
C. Since the COVID Vaccines Do Not Stop the Spread of COVID, They
Are Not a Public Health Measure, But a Medical Treatment. . . . . . . . 5
II. OSHA’s Emergency Provision Exceeds Its Authority.. . . . . . . . . . . . . . . . . . . . . . 6
A. OSHA Does Not Have the Authority to Mandate
Medical Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. OSHA’s Emergency Provisions Violate Its Stated Fundamental
Principles of Bioethics.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. OSHA Has Previously Acknowledged That It Lacks the Power to
Force Medical Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3. Other federal agencies have indicated opposition to employers
forcing medical treatment on employees. . . . . . . . . . . . . . . . . . . 9
B. OSHA Does Not Have Police Power to Mandate Vaccinations. . . . . . 10
III. OSHA’s Emergency Provisions Should be Subject to Heightened Scrutiny
Under Both the Constitution and Under the Pre-enforcement “Harder-Look”
Doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Mandating Medical Treatment is Governed by Cruzan and Subsequent
Forced Medical Treatment Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. Jacobson Does Not Apply But If It Did, Constitutional Rights
Could Be Asserted.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
C. Constitutional Jurisprudence Related to Forced Medical
Treatment, Outside of the Penal Context, Requires Heightened
Scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
D. Under Heightened Scrutiny, the Burden Shifts to OSHA to Justify its
Emergency Provision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
iv
E. The “harder look” also required for pre-enforcement agency review
supports heightened scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
v
Table of Authorities
Cases
Associated Industries of N.Y. State, Inc. v. U.S. Dept. of Labor, 487 F.2d 342 (2d Cir.
1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Buck v. Bell, 274 U.S. 200 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020) . . . . . . . . . . . . . . . . . 16, 17
Color Pigments Mfrs. Ass’n, Inc. v. Occupational Safety & Health Admin., 16 F.3d
1157 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261 (1990) . . . . . . . . . . 11, 13, 17
EEOC v. Neenah Paper, Inc., JVR No. 1606170018, No. 2:15-cv-00113 (W.D. Mich.
Mar. 31, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
F.C.C. v. Beach Commc’ns, Inc, 508 U.S. 307 (1993) . . . . . . . . . . . . . . . . . . . . . . . . 13
Griswold v. Connecticut, 381 U.S. 479 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 18
Heller v. Doe by Doe, 509 U.S. 312 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Jacobson v. Commonwealth of Massachusetts,197 U.S. 11, 30 (1905). . . . . . . . 17, 18
McCutcheon v. Federal Election Commission, 572 U.S. 185 (2014) . . . . . . . . . . . . . . . . . . 21
Obergefell v. Hodges, 576 U.S. 644 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992) . . . . . . . . . . . . . . . 18
Riggins v. Nevada, 504 U.S. 127 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Roberts v. Ogdensburgh & Lake Champlain Railroad, 29 Hun, 154. . . . . . . . . . . . 12
Rochin v. California, 342 U.S. 165 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Russell v. Richards, 384 F.3d 444 (7th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 22
vi
Sell v. United States, 593 U.S. 166 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 21
Sherbert v. Verner, 374 U.S. 398 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Union Pac. R. Co. v. Botsford, 141 U.S. 250 (1891) . . . . . . . . . . . . . . . . . . . . . . 11, 12
United States v. Morrison, 529 U.S. 598 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Seaton, 773 F. App’x 1013 (10th Cir. 2019) . . . . . . . . . . . . . . . . . . 22
Vitek v. Jones, 445 U.S. 480 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14, 15
Walsh v. Sayre, 52 How. Pract. 334. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) . . . . . . . . . . . . . 22
Wolfe v. McDonnell, 418 U.S. 539 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Zucht v. King, 260 U.S. 174 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Constitutions, Statutes, and Rules
29 U.S.C. § 651(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10
Administrative Procedure Act, §§ 551 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Sup. Ct. R. 21.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Sup. Ct. R. 33.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Sup. Ct. R. 33.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Sup. Ct. R. 33.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Sup. Ct. R. 37.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Other Authorities
Alicia Ault, Can a COVID-19 Vaccine Stop the Spread? Good Question, Medscape
Medical News, (Nov. 20, 2020), https://www.medscape.com/viewarticle/941388.. . . 4
American College of Occupational and Environmental Medicine, About ACOEM,
Code of Ethics, https://acoem.org/about-ACOEM/Governance/Code-of-Ethics . . . . 7
vii
Asbestos Information Ass’n/North America v. Occupational Safety and Health
Admin., 727 F.2d 415 (5th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Centers for Disease Control and Prevention, Interim Public Health
Recommendations for Fully Vaccinated People (Updated Oct. 15, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-
guidance.html. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
FDA, Coronavirus (COVID-19) | CBER-Regulated Biologics,
https://www.fda.gov/vaccines-blood-biologics/industry-biologics
/coronavirus-covid-19-cber-regulated-biologics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
FDA, Coronavirus Treatment Acceleration Program (CTAP),
https://www.fda.gov/drugs/coronavirus-covid-19-drugs/coronavirus-treatment
-acceleration-program-ctap. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Immunization: The Basics, CENTERS FOR DISEASE CONTROL, September 1, 2021,
https://www.cdc.gov/vaccines/vac-gen/imz-basics.htm . . . . . . . . . . . . . . . . . . . . . . . 6
Immunization: The Basics, CENTERS FOR DISEASE CONTROL, July 18, 2021, archived
at
https://web.archive.org/web/20210718162209/https://www.cdc.gov/vaccines/vac-gen/i
mz-basics.htm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Josh Blackman, The Irrepressible Myth of Jacobson v. Massachusetts, 70 Buff. L.
Rev. at 9 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Judge Thomas Cooley, Cooley on Torts 29 (1st ed. 1888) . . . . . . . . . . . . . . . . . . . . 12
Kasen K. Riemersma, et al., Vaccinated and unvaccinated individuals have similar
viral loads in communities with a high prevalence of the SARS-CoV-2 delta variant,
medRxiv (pre-print),
https://www.medrxiv.org/content/10.1101/2021.07.31.21261387v1 . . . . . . . . . . . . . . 4
Madeline Holcombe, Fully vaccinated people who get a Covid-19 breakthrough
infection can transmit the virus, CDC chief says, CNN (Updated Aug. 6, 2021),
https://www.cnn.com/2021/08/05/health/us-coronavirus-thursday/index.html . . . . . 4
Office of Teaching & Digital Learning, Boston University School of Public Health,
What is Public Health?, BOSTON UNIVERSITY MEDICAL CAMPUS (October 21, 2015) ,
https://sphweb.bumc.bu.edu/otlt/MPH-Modules/PH/PublicHealthHistory. . . . . . . . 5
Omicron spreading and infecting the vaccinated - WHO, Reuters (Dec. 20, 2021),
https://www.aol.com/news/1-omicron-
viii
spreading-infecting-vaccinated-172033826-184810325.html . . . . . . . . . . . . . . . . . . 5
Thompson, Mark G., Interim Estimates of Vaccine Effectiveness of BNT162b2 and
mRNA 1273 COVID-19 Vaccines in Preventing SARS-CoV-2 Infection Among Health
Care Personnel, First Responders, and Other Essential and Frontline Workers–Eight
U.S. Locations, December 2020-March 2021,
https://www.cdc.gov/mmwr/volumes/70/wr/mm7013e3.htm. . . . . . . . . . . . . . . . . . . 4
U.S. Dep’t of Lab. OSHA Interpretation Letter to Hon. Marcy Kaptur (Nov. 9, 2009)
.................................................................... 9
U.S. Dep’t of Lab. OSHA Interpretation Letter to Hon. Sam Gejdenson (Aug. 6,
1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Equal Emp. Opportunity Comm’n., ADA: Disability-Related Inquiries and
Medical Examinations; Terms and Conditions of Employment (Nov. 7, 2000) . . . . . 9
United States Department of Labor Occupational Safety and Health
Administration, Ethics and Confidentiality in Occupational Health,
https://www.osha.gov/clinicians#ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States Department of Labor Occupational Safety and Health
Administration, Ethics and Confidentiality in Occupational Health,
https://www.osha.gov/clinicians#ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Vaccines, AMERICAN PUBLIC HEALTH ASSOCIATION,
https://www.apha.org/Topics-and-Issues/Vaccines . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Weiler, Bodily Integrity: A Substantive Due Process Right to Be Free from Rape by
Public Officials, 34 Calif. West. L. Rev. 591 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . 18
What is Public Health?, AMERICAN PUBLIC HEALTH ASSOCIATION,
https://www.apha.org/what-is-public-health. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ix
Interest of Amicus2
IUFCNM is a grassroots coalition of Indiana University students, parents,
Alumni, and concerned community members advocating for medical treatment
choice and equal treatment of all university students, faculty, and staff. IUFCNM
stands firm in its belief that everyone has sovereignty over their own bodies and
freedom of choice to make medical decisions regarding their individual health.
IUFCNM opposes any form of medical segregation or discrimination regarding
access to education, employment, housing, and community events.
As such, Amicus is dedicated to ensuring that mandates involving forced
vaccination and forced medical treatments are analyzed under the proper applicable
constitutional standards.
Introduction and Summary of the Argument
The science shows, and important government public health officials agree, that the
COVID vaccines do not prevent infection by and the transmission of the COVID-19 virus
(“COVID”). Because they do not prevent infection from and transmission of a communicable
disease, see Part I, the COVID vaccines are properly considered medical treatments with
potential benefit to the individual who takes them from more serious consequences of COVID,
like hospitalization and death, but not as a public heath measure for government to mandate.
OSHA does not have the authority to mandate employees receive unwanted
2
No counsel for any party authored the brief in whole or in part, and no person
other than amicus or its counsel made a monetary contribution to its preparation or
submission. Respondents and Intervenor-Respondents consented to, and Applicants
indicated that they do not oppose, the filing of the enclosed amicus brief.
1
medical treatment. In addition to the fact that the Emergency Provisions: (1) violate
OSHA’s stated fundamental values of biomedical ethics regarding mandated
medical treatments; (2) contradict its previous positions on such mandates: and (3)
conflict with other federal agencies’ interpretations of such mandates, OSHA simply
does not have the requisite police power to mandate medical treatments. Even if
OSHA had the police power to force millions of private employees to take a medical
treatment against their will, which it does not, it would still need to do so according
to established constitutional jurisprudence and principles of judicial review. OSHA’s
Emergency Provisions cannot survive either the appropriate constitutional or
agency review. See Part II.
This Court has developed doctrines to protect the infringement of
constitutional rights of bodily integrity and autonomy, and of medical treatment
choice, and the scrutiny level that should be applied to protect these constitutional
rights, depending on the context involved. A heightened level of scrutiny should
apply to OSHA’s Emergency Provisions because the individual rights to bodily
integrity and autonomy, and of medical treatment choice, are involved here and
because there is no limiting context to those fundamental rights, such as within a
prison. The harder-look substantial evidence standard required for pre-enforcement
OSHA actions mirrors that of heightened constitutional scrutiny in that the
government bears the burden of proof and OSHA’s Emergency Provisions fail this
scrutiny. See Part III.
2
Argument
I. COVID Vaccines Are a Medical Treatment, Not a Public Health Measure.
Currently, there are three available COVID injections on the market: the
Moderna and Pfizer injections, which utilize mRNA technology, and the Johnson &
Johnson injection, which utilizes a virus-based technology, and only Pfizer has
received full FDA approval for use in adults over the age of sixteen. While these
injections are colloquially referred to as "vaccines," the COVID injections differ from
traditional vaccines in new "gene-transfer technology" and in that the injections do
not prevent infection, re-infection, or transmission of the COVID virus, the key
elements of a traditional vaccine. Instead, the COVID injections operate as medical
treatments or therapeutics by lessening symptoms and severity of virus infection.
A. The FDA Classifies the COVID Injections as “CBER-Regulated
Biologics,” or Therapeutics, Not as Traditional Vaccines.
The COVID injections are not “vaccines” in the traditional sense in that they
utilize a new “gene-transfer technology,” and the FDA classifies them as
“CBER-Regulated Biologics” or “therapeutics.”3
B. COVID Vaccines Do Not Prevent the Spread of the COVID Virus.
While the vaccines appear to be 95% effective at preventing severe illness
3
FDA, Coronavirus (COVID-19) | CBER-Regulated Biologics,
https://www.fda.gov/vaccines-blood-biologics/industry-biologics
/coronavirus-covid-19-cber-regulated-biologics; FDA, Coronavirus Treatment Accel-
eration Program (CTAP),
https://www.fda.gov/drugs/coronavirus-covid-19-drugs/coronavirus-treatment -accel-
eration-program-ctap.
3
and death, they do not prevent infection or transmission of the COVID virus.4 Dr.
Corey, who oversaw the vaccine trials for the NIH COVID-19 Prevention Network,
said “the studies aren’t designed to assess transmission. They don’t ask that
question and there’s no information on this at this point in time.”5
The CDC agrees that vaccinated people can still become infected and that
“[f]ully vaccinated people who do become infected can transmit it to others.”6 The
CDC Director acknowledges that the vaccines do not stop the transmission of the
Delta strain.7 Thus, vaccinated and unvaccinated individuals may have similar
viral loads, thereby having the same risk of transmitting the virus.8
The World Health Organization’s chief scientist also agrees that the Omicron
variant is spreading even faster that the Delta variant was and is much better at
4
Thompson, Mark G., Interim Estimates of Vaccine Effectiveness of BNT162b2
and mRNA 1273 COVID-19 Vaccines in Preventing SARS-CoV-2 Infection Among
Health Care Personnel, First Responders, and Other Essential and Frontline Work-
ers–Eight U.S. Locations, December 2020-March 2021,
https://www.cdc.gov/mmwr/volumes/70/wr/mm7013e3.htm.
5
Alicia Ault, Can a COVID-19 Vaccine Stop the Spread? Good Question,
Medscape Medical News, (Nov. 20, 2020),
https://www.medscape.com/viewarticle/941388.
6
Centers for Disease Control and Prevention, Interim Public Health Recommen-
dations for Fully Vaccinated People (Updated Oct. 15, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-
guidance.html.
7
Madeline Holcombe, Fully vaccinated people who get a Covid-19 breakthrough
infection can transmit the virus, CDC chief says, CNN (Updated Aug. 6, 2021),
https://www.cnn.com/2021/08/05/health/us-coronavirus-thursday/index.html
8
Kasen K. Riemersma, et al., Vaccinated and unvaccinated individuals have
similar viral loads in communities with a high prevalence of the SARS-CoV-2 delta
variant, medRxiv (pre-print),
https://www.medrxiv.org/content/10.1101/2021.07.31.21261387v1 .
4
evading the antibodies generated by the COVID vaccines.9
C. Since the COVID Vaccines Do Not Stop the Spread of COVID, They
Are Not a Public Health Measure, But a Medical Treatment.
As the American Public Health Association explains, “Public Health
promotes and protects the health of people and communities where they live, learn,
work and play. While a doctor treats people who are sick, those of us working in
public health try to prevent people from getting sick or injured in the first place.”10
Thus, public health professionals promote vaccines for “vaccine-preventable
diseases that can be a threat to our health.”11 The understanding that public health
involves control of communicable diseases is long-standing, dating to at least
1920.12
Prior to August of this year, the CDC defined “vaccine” in conformance with
the traditional understanding that vaccines are a public health measure: “a product
that stimulates a person’s immune system to produce immunity to a specific
disease, protecting the person from that disease.”13 However, the CDC recently
9
Omicron spreading and infecting the vaccinated - WHO, Reuters (Dec. 20,
2021), https://www.aol.com/news/1-omicron- spread-
ing-infecting-vaccinated-172033826-184810325.html.
10
What is Public Health?, AMERICAN PUBLIC HEALTH ASSOCIATION,
https://www.apha.org/what-is-public-health (last visited November 17, 2021).
11
Vaccines, AMERICAN PUBLIC HEALTH ASSOCIATION,
https://www.apha.org/Topics-and-Issues/Vaccines (last visited November 17, 2021).
12
Office of Teaching & Digital Learning, Boston University School of Public
Health, What is Public Health?, BOSTON UNIVERSITY MEDICAL CAMPUS (October 21,
2015) , https://sphweb.bumc.bu.edu/otlt/MPH-Modules/PH/PublicHealthHistory.
13
Immunization: The Basics, CENTERS FOR DISEASE CONTROL, July 18, 2021,
archived at
https://web.archive.org/web/20210718162209/https://www.cdc.gov/vaccines/vac-gen/i
5
changed the definition of “vaccine” to “[a] preparation that is used to stimulate the
body’s immune response against diseases.”14 Thus, the CDC eliminated the public
health component of producing “immunity to a specific disease, protecting the
person from that disease.” Regardless of this redefinition of vaccine, the scientific
evidence establishes that COVID vaccines should not be viewed as a public health
measure to prevent the spread of disease, since they do not stop the spread of the
virus, but instead viewed as a medical treatment designed to provide therapeutic
benefits to the individual who contracts COVID.
II. OSHA’s Emergency Provision Exceeds Its Authority.
Congress did not give OSHA clear authority to mandate medical treatment to
employees via regulatory fiat. OSHA is authorized “to assure so far as possible
every working man and woman in the Nation safe and healthful working
conditions.” 29 U.S.C. § 651(b). OSHA’s Congressional authorization does not give it
plenary police power over matters of individual medical treatment, or even public
health, disguised under the broad veil of worker safety.
A. OSHA Does Not Have the Authority to Mandate Medical Treatment.
OSHA emphasizes personal autonomy in regulating safe and health working
conditions and has issued prior interpretations of its positions on flu shots, medical
examinations, and medication as a condition of employment that make clear that
mz-basics.htm (last visited December 30, 2021).
14
Immunization: The Basics, CENTERS FOR DISEASE CONTROL, September 1,
2021, https://www.cdc.gov/vaccines/vac-gen/imz-basics.htm (last visited November
16, 2021).
6
OSHA believes that they have no authority to mandate medical treatment. Lastly,
other federal agencies have indicated that employers violate federal law by forcing
employees to take a medical treatment.
1. OSHA’s Emergency Provisions Violate Its Stated Fundamental
Principles of Bioethics.
OSHA’s mission is to assure safe and healthy working conditions for working
men and women by developing, setting and enforcing standards and by providing
outreach, education, training and compliance assistance, which adhere to
fundamental principles of bioethics, including voluntary and informed consent to
medical treatment. OSHA cites the American College of Occupational and
Environmental Medicine (ACOEM) to establish “the fundamental principles of
bioethics as they relate to the practice of occupational health,” which limits OSHA’s
power.15
ACOEM’s Code of Ethics establishes that one of its fundamental bioethical
values is that of “autonomy.”16 This value characterizes the physician as “advisor” to
an autonomous patient. Id. Pursuant to this belief, the “center of patient care is not
in the physician’s office or in the hospital; it is where people live their lives – in the
home and in the workplace. Id. “It is in the home and the workplace that patients
15
United States Department of Labor Occupational Safety and Health Adminis-
tration, Ethics and Confidentiality in Occupational Health,
https://www.osha.gov/clinicians#ethics (last visited Dec. 28, 2021).
16
American College of Occupational and Environmental Medicine, About
ACOEM, Code of Ethics,
https://acoem.org/about-ACOEM/Governance/Code-of-Ethics (last visited Dec. 28,
2021).
7
make the daily choices that determine their health.” Id. (emphasis added). This
value respects the idea that the individual best understands his or her own best
interests. Id.
OSHA’s Emergency Provisions, however, violate its own fundamental
bioethical values, that limits its power, by nullifying the principle of personal
autonomy in medical decision-making. Instead, OSHA seeks to override millions of
employees’ personal medical decision by mandating a medical treatment in the form
of a COVID vaccine. OSHA’s Emergency Provisions conflict not only with its
fundamental values, but also conflict with its own understanding of the limits of its
own power.
2. OSHA Has Previously Acknowledged That It Lacks the Power
to Force Medical Treatment.
OSHA’s previous positions on medical treatments such as mandatory flu
shots and medical examinations demonstrate that they understood that OSHA does
not have the power to mandate medical treatment. For instance, OSHA issued an
interpretation on OSHA’s policy regarding medical surveillance stating that “OSHA
does not require an employer to force the employees to take medical examinations.”
U.S. Dep’t of Lab. OSHA Interpretation Letter to Hon. Sam Gejdenson (Aug. 6,
1987).17 Likewise, in response to H1N1, OSHA’s position on mandatory flu shots for
employees stated, “although OSHA does not specifically require employees to take
17
Interpretation letter referenced found at:
https://www.osha.gov/laws-regs/standardinterpretations/1987-08-06 (last checked
Dec. 29, 2021).
8
vaccines, an employer may do so.” U.S. Dep’t of Lab. OSHA Interpretation Letter to
Hon. Marcy Kaptur (Nov. 9, 2009). 18
These prior interpretations by OSHA of its power seriously undermines its
claim that it has the power to mandate employees to receive medical treatment, via
a COVID vaccine.
3. Other federal agencies have indicated opposition to employers
forcing medical treatment on employees.
The EEOC has consistently rejects the idea that employers can force
unwilling employees to take medication. For instance, when asked whether an
employer can require an employee to take medication as a condition of employment,
the EEOC said that “the decision to take medication should be made by the
employee with a disability, and not by the employer.” U.S. Equal Emp. Opportunity
Comm’n., ADA: Disability-Related Inquiries and Medical Examinations; Terms and
Conditions of Employment (Nov. 7, 2000).19 Instead of forcing medication on
employees, the EEOC stated that employer should focus on whether an employees
is having performance or conduct problems and handle those accordingly. Id.
In 2015, the EEOC also sued a Michigan paper mill for requiring an
employee to take anti-epileptic medication under observation during his shifts.
EEOC v. Neenah Paper, Inc., JVR No. 1606170018, No. 2:15-cv-00113 (W.D. Mich.
18
Interpretation letter referenced found at:
https://www.osha.gov/laws-regs/standardinterpretations/2009-11-09 (last checked
Dec. 29, 2021).
19
Discussion letter referenced found at:
https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-16 (last checked Dec. 29,
2021).
9
Mar. 31, 2016). Thus, the EEOC objects to employers forcing employees to take
medications as a condition of employment.
Thus, OSHA’s Emergency Provisions: (1) violate OSHA’s stated fundamental
values of biomedical ethics regarding mandated medical treatments that limits its
authority; (2) contradict its previous positions rejecting such mandates: and (3)
conflict with other federal agencies’ rejections of such employer mandates,
B. OSHA Does Not Have Police Power to Mandate Vaccinations.
Furthermore, OSHA simply does not have the requisite police power to
mandate medical treatments. This Court “always ha[s] rejected readings of the
Commerce Clause and the scope of federal power that would permit Congress to
exercise a police power.” United States v. Morrison, 529 U.S. 598, 618-19 (2000).
Congress passed the Occupational Safety and Health Act under its Commerce
Clause authority “to assure so far as possible every working man and woman in the
Nation safe and healthful working conditions.” 29 U.S.C. § 651(b). Under the U.S.
Constitution, States have police power, not federal agencies—and even the States’
police powers are limited by the Constitution and these police powers must be
exercised within the boundaries set by constitutional jurisprudence.
III. OSHA’s Emergency Provisions Should be Subject to Heightened
Scrutiny Under Both the Constitution and Under the Pre-enforcement
“Harder-Look” Doctrine.
Even if OSHA had the statutory or police power to force millions of private
employees to take a medical treatment against their will, which it does not, it would
still need to do so according to established constitutional principles and principles of
10
agency review, which require heightened scrutiny.
This Court has developed constitutional doctrines to protect the infringement
of constitutional rights of bodily integrity and autonomy, and of medical treatment
choice, through a heightened level of scrutiny, with one limited exception. This
certainly applies here when medical treatment is mandated by government. OSHA
forces employees to make a choice: retain your rights to bodily integrity and
autonomy, and of medical treatment choice, or either: (1) take the COVID vaccine;
or (2) submit to frequent testing and masking. OSHA is not permitted under the
U.S. Constitution to force such a choice on employees.
Pre-enforcement review of agency actions also requires this Court to take a
“harder look” of such actions. This harder-look is comparable to a heightened level
of constitutional scrutiny in the key aspect of which party has the burden of proof.
Applicants urge constitutional avoidance, because the constitutional questions at
stake here are critical, and Amicus urges this Court to consider the proper level of
scrutiny when analyzing OSHA’s Emergency Provisions.
A. Mandating Medical Treatment is Governed by Cruzan and
Subsequent Forced Medical Treatment Cases.
Our constitutional history and heritage have repeatedly indicated that
rigorous scrutiny must be applied when bodily integrity and autonomy is involved.
“‘[N]o right is held more sacred, or is more carefully guarded,…than the right of
every individual to the possession and control of his own person.’” Cruzan v. Dir.,
Missouri Dep’t of Health, 497 U.S. 261, 269 (1990) (quoting Union Pac. R. Co. v.
Botsford, 141 U.S. 250, 251 (1891). Such was the case at common law “unless by
11
clear and unquestionable authority of law.” Id. “The logical corollary of [this
doctrine was] that a patient generally possesse[d] the right… to refuse treatment.”
Id. This principle was so deeply recognized in Anglo-American law that “no order to
inspect [a party’s] body…[had] been made, or even moved for, in any of the English
courts of common law, at any period of their history.” Union Pac., 141 U.S. at 253;
see also Judge Thomas Cooley, Cooley on Torts 29 (1st ed. 1888) (stating that “the
right to one’s person may be said to be a right of complete immunity”). It took
nearly a century for any court in the United States to issue an order “for the
inspection of the body of [a] plaintiff in [a legal action.]” Union Pac., 141 U.S. at 255
(citing an 1868 case from New York: Walsh v. Sayre, 52 How. Pract. 334). Even this
case was subsequently overruled. Id. (citing Roberts v. Ogdensburgh & Lake
Champlain Railroad, 29 Hun, 154).
Thus, because OSHAs Emergency Provisions mandate medical treatment,
the rights to bodily autonomy and medical treatment choice are infringed.
B. Jacobson Does Not Apply But If It Did, Constitutional Rights Could
Be Asserted.
Two precedents are most often cited to support vaccine mandates, like
OSHA’s Emergency Provision, Jacobson v. Commonwealth of Massachusetts, which
involved a question of whether a state’s police powers extended to forcing citizens to
take a small pox vaccine or pay a small one-time fine, 197 U.S. 11, 30 (1905), and
Zucht v. King, which affirmed a public school’s ability to require vaccinations for
deadly diseases common among school-age children. 260 U.S. 174, 176-177 (1922).
At first glance, Jacobson and Zucht seem directly on point to questions implicating
12
vaccine mandates. If these cases were applied literally and as proponents advocate,
Applicants would bear the burden to negate every conceivable basis which might
support OSHA’s Emergency Provisons. See F.C.C. v. Beach Commc’ns, Inc, 508 U.S.
307, 313-14 (1993). Because of this standard, laws and regulations analyzed using
this extremely deferential standard are almost never found to be unconstitutional.
This extremely deferential legal standard would provide nearly carte blanche
plenary power to the government, no matter the gloss of “reasonableness” that must
be applied.
However, Jacobson does not apply since if involved public health measure,
not mandating medical treatment as here, so that the controlling precedent is not
Jacobson, but rather Cruzan, which controls on questions involving forced medical
treatment. Second, Jacobson itself permits assertion of constitutional rights, such
as those in Cruzan. And third, Jacobson is just overrated.
1. Jacobson Does Not Apply Since It Involved a Public Health
Measure, Not Medical Treatment.
While competent individuals have a “constitutionally protected liberty
interest in refusing unwanted medical treatment,” Cruzan, 497 U.S. at 278,
Jacobson and Zucht both involved the state’s use of its police power to implement
public health measures to control the spread of deadly diseases among the
population subject to the vaccination mandates.20
For constitutional review, the difference between a public health measure
20
Jacobson also does not apply because it involved the scope of a local govern-
ment’s police power, which OSHA does not have.
13
and a medical treatment can be critical. Constitutional jurisprudence over the last
century shows that courts historically grant greater deference (and rational basis
review) to decisions to public health measures, but not to forced medical treatments.
The reasons for this different treatment is rooted in the differences in purpose
behind such mandates. A personal decision to refuse a vaccine, that is a medical
treatment, does not create a risk to other people to whom the disease might spread.
See Jacobson, 197 U.S. at 35 (holding deference applies to those requirements
“adapted to prevent the spread of contagious diseases”). Instead, declining medical
treatment impacts only the health of the individual making the medical treatment
decision.
However, the COVID vaccines appear to be effective at mitigating symptoms,
hospitalizations and deaths, as all medical treatments and prophylactics do, but do
not prevent individuals from either getting or transmitting the COVID virus.
Using Jacobson, and its deferential standard, as controlling precedent, would
require this Court to base its analysis on the supposition that these products would
be effective in meeting OSHA’s stated goal of slowing the spread of the COVID virus
and thereby protecting the public at large. However, that presupposition is
inaccurate, and the COVID vaccines are properly understood as a medical
treatment, where substantive constitutional rights of individuals are involved.
2. Jacobson Allows Protection of Constitutional Rights When
Implicated.
Even Jacobson, however, recognized the danger that forced vaccinations, that
were within the government’s police powers, could be exercised in violation of
14
federal constitutional law, or in a way to go “beyond what [i]s reasonably required
for the safety of the public.” 197 U.S. at 28. This left the judicial review of the
exercise of those police powers to subsequent courts. And here, the substantive due
process body of constitutional law, including recognizing substantial constitutional
protection for the right of bodily integrity and autonomy, and medical treatment
choice, was not developed until much later, see Griswold v. Connecticut, 381 U.S.
479 (1965), so while these rights could not be asserted then, they could be asserted
now.
3. In Any Event, Jacobson Is Overrated.
The circumstance surrounding Jacobson could not be more different than
today. First, the Jacobson Court understood the vaccine to be a public health
measure, where an important government interest in protecting others from the
spread of a deadly disease were obvious,21 not now where the COVID vaccinations
are a medical treatment. Second, the reality was that the Jacobson decision was a
Progressive Era decision, which lead directly to, and was cited as authority for,
Buck v. Bell, 274 U.S. 200, 207 (1927), one of this Court’s most notorious decisions,
which approved forced sterilization of person with metal retardation. Third, as a
result of the Progressive Era influence, the Court was much more deferential to the
government in areas potentially implicating individual rights.22 And finally the
21
As explained, at the time of Jacobson, vaccines were understood as public
health measure to halt the spread of an infectious disease and small pox was a
deadly killer against which the small pox vaccine was safe and effective.
22
Consider that “[t]he Privileges or Immunities Clause was an empty vessel []
State were not bound by the Bill [of] Rights [a]nd separate was [still] equal.” Josh
15
substantive due process body of constitutional law, including recognizing
substantial constitutional protection for the right of bodily integrity and autonomy,
and medical treatment choice, was not developed until much later. See Griswold,
381 U.S. at 479.
Thus, Justices of this Court have observed that, rather than Court approval
for plenary government authority, Jacobson was a “modest decision” and not “a
towering authority that overshadows the Constitution during a pandemic.” Roman
Catholic Diocese v. Cuomo, 141 S. Ct. 63, 71 (2020) (Gorsuch, J., concurring)
(observing Jacobson involved: (1) an old mode of analysis instead of modern
constitutional review; (2) a “bodily-integrity” right involving not only a vaccine, but
a civil penalty; and (3) “an imposition . . . [that] was avoidable and relatively
modest”). He further remarked that “no Justice now disputes any of these [three]
points,” none argued that normal constitutional rules should not apply in a
pandemic. Id. Chief Justice Roberts agreed, downplaying an earlier comment in
concurrence citing Jacobson to the effect that such matters are usually left to the
states. Id. at 71.
Roman Catholic Diocese was preceded by a similar case—Calvary Chapel
Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020) (denying injunctive relief to church
occupancy limits). There, Justice Alito dissented, joined by Justices Thomas and
Kavanaugh, noting that “at the outset of an emergency, it may be appropriate for
courts to tolerate very blunt rules,” “[b]ut a public health emergency does not give
Blackman, The Irrepressible Myth of Jacobson v. Massachusetts, 70 Buff. L. Rev. at
9 (2021).
16
. . . public officials carte blanche to disregard the Constitution as long as the medical
problem exists.” Id. at 2605. Rather, “[a]s more medical and scientific evidence
becomes available, and as States have time to craft policies in light of that evidence,
courts should expect policies that more carefully account for constitutional rights.”
Id. Which, of course, is the precise situation here.
Justice Alito’s dissenting view was essentially adopted by Roman Catholic
Diocese, meaning that “blunt rules” may be permitted initially, but fine-tuning to
actual scientific evidence is then required—requiring an evidence-focused inquiry in
judicial review. Applying the normally-required, current jurisprudence in that case
required the government to justify itself under strict scrutiny, which eschews blunt
rules and requires narrow tailoring to the least restrictive means to further a
compelling interest.
Despite the government’s interest in public health during a pandemic,
Roman Catholic Diocese required normal heightened scrutiny levels instead of
defaulting to an exaggerated view of Jacobson’s analysis. Thus, the Court must
analyze the contexts in which heightened scrutiny applies to cases involving bodily
integrity and autonomy, and of medical treatment choice.
C. Constitutional Jurisprudence Related to Forced Medical Treatment,
Outside of the Penal Context, Requires Heightened Scrutiny.
When medical treatment has been mandated by the government, contrary to
the decision of the person, such mandates uniformly require heightened scrutiny.
See, e.g., Cruzan, 497 U.S. at 278 (right to consent to or refuse medical treatment
for incompetent person); Humphrey v. Cody, 405 U.S. 504 (1972); Vitek v. Jones, 445
17
U.S. 480 (1980) (involuntary commitment of mentally ill patients for medical
treatment); Riggins v. Nevada, 504 U.S. 127, 135 (1992); Sell v. United States, 593
U.S. 166, 186 (2003) (pre-trial forced administration of antipsychotic drugs).23
Further, the Court’s recent constitutional jurisprudence gives greater weight to the
protection of bodily integrity and autonomy, and of medical treatment choice, than
it did a century ago.24 These medical treatment mandate cases are directly
applicable to the review of the OSHA regulation here and would require heightened
scrutiny. Rochin v. California, 342 U.S. 165, 207 (1952) (applying a “narrow
scrutiny” in reversing a conviction based upon evidence obtained through stomach
pumping); Humphrey, 405 U.S. at 504 (applying a standard more rigorous than
rational basis in a case concerning involuntary commitment to a mental hospital for
treatment); Vitek, 445 U.S. at 495 (holding that notwithstanding “strong” state
interest in segregating and treating mentally ill patients, liberty interests protected
by the due process clause are entitled to strong constitutional protection); Riggins,
504 U.S. at 135 (holding that only an “essential” or “overriding” state interest would
overcome a claimant’s “interest in avoiding involuntary administration” of drugs);
Sell, 539 U.S. at 179 (holding that states must demonstrate an “important
23
During modern times, the Court has also applied heightened scrutiny when an
important personal choice has been prohibited by the government. See, e.g.,
Griswold, 381 U.S. 479 (contraception); Roe v. Wade, 410 U.S. 113 (1973), modified
by Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992) (abortion),
and Obergefell v. Hodges, 576 U.S. 644 (2015) (same-sex marriage).
24
See Weiler, Bodily Integrity: A Substantive Due Process Right to Be Free from
Rape by Public Officials, 34 Calif. West. L. Rev. 591, 596-604 (1998) (compilation
and analysis of modern bodily integrity and autonomy cases).
18
governmental interest” and means that are both “necessary significantly to further”
that interest to require involuntary administration of antipsychotic drugs)
(emphasis in the original).
The only exception to the application of heightened scrutiny for a medical
treatment mandate is in the context of convicted inmates in prison—in this context
alone, the Court’s precedent supports the application of rational basis review. Even
within the prison context, the Court recognized that inmates still “possess a
significant liberty interest in avoiding the unwanted administration of…drugs,”
Washington v. Harper, 494 U.S. 210, 222 (1990), but recognized these rights must
be balanced with the “legitimate penological interest.” Id. at 223. Consequently, the
Court applies only rational basis review to medical treatment mandates for inmates
in prison, but nowhere else.
The inescapable understanding derived from these cases is that this Court
must require a heightened level of scrutiny here, as employees are not prisoners. It
cannot be the case that prisoner rights are equal with or greater than rights
possessed by health, competent and free citizens. Wolfe v. McDonnell, 418 U.S. 539,
555 (1974) (holding prisoner’s rights “may be diminished by the needs and
exigencies of the institutional environment”). As the Supreme Court’s decisions in
the medical treatment mandate cases, and in Harper and Wolfe, make clear:
rational basis scrutiny is only applied to rights concerning bodily integrity and
autonomy, and of medical treatment choice, within the prison context. Outside this
context, the Constitution demands a higher level of scrutiny.
19
D. Under Heightened Scrutiny, the Burden Shifts to OSHA to
Justify its Emergency Provision.
The Supreme Court signals that heightened scrutiny is applied by:
(1) either the description of the right involved (i.e., “fundamental,”
“significant liberty interest”);
(2) the weight of the government interest that is needed to overcome
the right (i.e. “essential” or “overriding”); or
(3) the procedural burdens placed on the government when acting to
advance its interest (i.e., “clear and convincing evidence” or robust
procedural requirements).
In these instances of heightened scrutiny, the key difference is the shift in the
burden of proof to the government, from the challenger, to justify its mandate.
If rational basis review applies, “the burden is on the one attacking [the
regulation] to [negate] every conceivable basis which might support it.” Heller v.
Doe by Doe, 509 U.S. 312, 320 (1993). However, Griswold, Roe, Casey, Glucksberg,
Obergefell, Cruzan, Rochin, Humphrey, Vitek, Riggins and Sell all required the
government, not the challenger, to prove it meets the heightened standard of review
for interference with the individual’s right to bodily integrity and autonomy, and
medical treatment choice. Because the government held the burden of proof in these
cases, the Court necessarily applied heightened scrutiny, regardless of the exact
language used to describe the scrutiny level.
Two levels of heightened scrutiny exist—intermediate scrutiny and strict
scrutiny. Under intermediate scrutiny, the Court applies a “rigorous standard of
review” that requires “the State [to] demonstrate[] a sufficiently important interest
and employ[] means closely drawn to avoid unnecessary abridgments of” the right.
20
McCutcheon v. Federal Election Commission, 572 U.S. 185, 197 (2014). Under strict
scrutiny, the government has the burden of proof to establish the law is necessary
to advance a compelling governmental interest by narrowly tailored and least
restrictive means. Sherbert v. Verner, 374 U.S. 398 (1963). Both levels of heightened
scrutiny impose on OSHA the burden of proof which must be required here.
Sell is the latest and most comprehensive case establishing a strict scrutiny
framework for government medical treatment mandates and its analysis.
Describing the Sell test as a strict scrutiny test is fair since it contains all of the
essential elements of strict scrutiny, i.e. a protected constitutional right, a
sufficiently important state interest to overcome the right, narrow tailoring and less
restrictive means, and the requirement that the government must prove it all. Sell,
539 U.S. at 178-83. This surely describes strict scrutiny which should be applied
here. And the Sell test is not used within “the penal framework”—Sell was in a
mental hospital awaiting trial, not a convicted felon in prison, like Harper. That is
why Sell applied heightened scrutiny, not Harper’s rational basis. Surely a medical
treatment choice by health, law-abiding and conpetent adults, like Applicants, is
entitled to at least the same respect as a medical treatment decision by a person
with severe mental illness awaiting trial.
Sell’s strict scrutiny test for medical treatment decisions has been applied
beyond the narrow confines of involuntary administration of drugs to a mentally ill
defendant facing criminal charges in order to render that defendant competent to
stand trial. Multiple circuits have applied the Sell test in various contexts. See, e.g.,
21
United States v. Seaton, 773 F. App’x 1013 (10th Cir. 2019); (applying Sell to forced
administration of antipsychotic drugs to render defendant competent to be
sentenced); Witt v. Department of the Air Force, 527 F.3d 806, 817-821 (9th Cir.
2008) (applying Sell to discharge of Air Force nurse for homosexual relationship);
Russell v. Richards, 384 F.3d 444, 450 (7th Cir. 2004) (applying Sell to involuntary
administration of delousing shampoo to inmates). Thus Sell provides the framework
for the heightened scrutiny analysis of the Emergency Provisions and requires
OSHA prove that its Emergency Provisions are justified.
E. The “harder look” also required for pre-enforcement agency review
supports heightened scrutiny.
Pre-enforcement judicial scrutiny also requires courts to take a harder look at
agency’s action than if reviewing action under more deferential arbitrary and
capricious standard applicable to agencies governed by the Administrative
Procedure Act, §§ 551 et seq. and 701 et seq. of Title 5. Asbestos Information
Ass’n/North America v. Occupational Safety and Health Admin., 727 F.2d 415 (5th
Cir. 1984). Under this harder look, the burden is on the Secretary of Labor to show
that the [regulation] is supported by substantial evidence. Associated Industries of
N.Y. State, Inc. v. U.S. Dept. of Labor, 487 F.2d 342 (2d Cir. 1973). That is, the
Secretary must show that the “determination is supported by evidence presented to
or produced by it and does not rest on faulty assumptions or factual foundations.”
Color Pigments Mfrs. Ass’n, Inc. v. Occupational Safety & Health Admin., 16 F.3d
1157 (11th Cir. 1994).
This harder-look, substantial evidence standard mirrors that of heightened
22
constitutional scrutiny which both imposes on government the burden of proof,
which OSHA cannot meet.
Conclusion
For the foregoing reasons, amicus asks this Court to grant Applicants’
Emergency Application for a stay.
December 30, 2021 Respectfully submitted,
James Bopp, Jr.
Counsel of Record
jboppjr@aol.com
Courtney Turner Milbank
cmilbank@bopplaw.com
Melena S. Siebert
msiebert@bopplaw.com
Cassandra Dougherty
cdougherty@bopplaw.com
THE BOPP LAW FIRM, PC
1 South Sixth St.
Terre Haute, IN 47807−3510
Telephone: 812/232−2434
Counsel for Amicus
23
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