A group of 25 health care workers, firefighters and paramedics from across Oregon lost a round this week when the Oregon Court of Appeals refused to intervene to stop a state mandate requiring them to get fully vaccinated against COVID-19 by Oct. 18.
The ruling, issued Tuesday, is the first in at least eight lawsuits seeking to overturn the authority of Gov. Kate Brown and the Oregon Health Authority to force certain categories of workers to get their jabs or else risk losing their jobs.
Statewide, the governor has said hundreds of thousands of health care workers, K-12 educators and state executive branch employees — from Oregon State Police troopers to Brown’s office staff — must get fully vaccinated unless they qualify for medical or religious exemptions. Many medical experts argue higher vaccination rates are the best tool for ending the pandemic. Just 60% of Oregonians of all ages are fully vaccinated, and some experts say that might need to reach 90% to stamp out the delta variant.
Since early September, more than 70 workers who fall under the mandate have signed on as plaintiffs in the eight lawsuits. Among their arguments: The governor and state public health officials have overstepped their authority; their right to shun vaccines under the First Amendment’s freedom of expression clause is under attack; and they’ll suffer irreparable harm if they’re fired or the vaccine causes side effects days or years down the road. Some also argue they should be allowed to wear masks and get tested once a week instead of undergoing vaccinations.
Tuesday’s Court of Appeals ruling in the first case — Oregon Medical Workers for Medical Freedom and Mandate Free Oregon vs. the Oregon Health Authority — doesn’t necessarily mean the fight for those plaintiffs is over. They still can continue and are likely to continue to pursue their cases, primarily in circuit courts, based on different arguments. But a key contention — that the Oregon Health Authority didn’t have the power to impose the vaccine mandate — was cast aside by the Appeals Court as inaccurate.
The Appeals Court declined to order a temporary halt to the mandate, finding that if the plaintiffs’ arguments were hashed out further they’d have “little-to-no likelihood of success.”
A judge presiding over a different lawsuit — Fraternal Order of Police vs. Brown and the state of Oregon, filed by 33 state troopers — appears to have become the first to hear arguments Wednesday in any circuit court in Oregon. Although the case was filed in Jefferson County Circuit Court in Madras, the troopers hail from 14 different counties, including Multnomah, Jackson and Umatilla.
Plaintiffs’ attorney Daniel Thenell argued the state stands to lose between 50 and 200 troopers because of the mandate. That’s out of a pool of 684 — leaving many parts of the state dangerously understaffed, Thenell said.
“I think it’s incredibly important to understand that all of the plaintiffs in this case are dedicated public servants that have chosen to serve the state and would like to continue to serve the state,” Thenell said.
But attorneys for the state contended that employees’ pledges to get fired instead of getting the vaccine are often overblown, as evidenced by termination rates in other parts of the country where employees have eventually agreed to get inoculated rather than lose employment.
They also argued that unvaccinated workers pose a greater risk to the public — by fueling the coronavirus’ spread — than they do by not showing up to work.
Research shows unvaccinated people are five times more likely to get infected than fully vaccinated people, and that once infected, they’re contagious for longer periods of time.
But three of five troopers who testified Wednesday said they’ve already had COVID-19 and don’t think they should be forced to get vaccinated.
Lt. Mark Duncan, who supervises 31 troopers as an area commander based in Malheur County, said his doctor told him he didn’t need to get vaccinated because he already has natural immunity from his past infection and some studies show people in his situation have strong protection.
But Dr. Melissa Sutton, a senior health adviser for the Oregon Health Authority, told the judge that immunity can vary greatly by individual. She also pointed to an August CDC study that found people who’d previously been infected with SARS-CoV-2 but not vaccinated were twice as likely to be re-infected as people who were previously infected and then got fully vaccinated.
In their legal filings, attorneys for the state pointed to a landmark 1905 U.S. Supreme Court case — Jacobson v. Massachusetts — that upheld the authority of states to establish vaccine mandates, in that case, smallpox vaccinations.
“As the Supreme Court explained more than a century ago, ‘a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,’” wrote state attorneys in their legal filings for Wednesday’s hearing.
Attorneys for the state also highlighted the state’s power to require school children to undergo vaccinations or a past Oregon Supreme Court case from 1956 upholding the city of Bend’s authority to add fluoride to its water supply for the greater public good.
“Over and over, they say working while unvaccinated is protected speech,” Christina Beatty-Walters, a lawyer for the state, said of the plaintiffs. “... It’s pretty hard to see how refusing a vaccine would be protected speech.”
And nationwide, many vaccine mandates are faring well in the courts. State lawyers noted that initial efforts to undermine employee or student mandates at educational institutions such as Indiana University, the University of Massachusetts and New York City’s schools have so far failed. A Houston hospital’s mandate has withstood challenges and so has United Airlines’, although the litigation continues.
Retired Oregon Supreme Court Justice Jack Landau, who is presiding over the case in place of a Jefferson County judge, said he would make a ruling soon given the looming Oct. 18 deadline, but didn’t say precisely when. His ruling could put a temporarily halt to the mandate.
At least one other lawsuit, filed in Marion County Circuit Court on behalf of state prison employees, has an upcoming hearing. On Oct. 13, a lawyer for the employees will ask a judge to freeze the mandate until more arguments can be made.