July 15, 2021
You have the right to health and bodily privacy to use the opposite sex’s bathroom, but you don’t have the right to reject an experimental injection. That is a position evidently adopted even by Trump-appointed judges.
Indiana University, like many public colleges, is forcing students to get the experimental “clot shots” in order to attend in-person classes during this upcoming semester. James Bopp, a prominent conservative attorney who once served as Indiana’s Republican National Committeeman, is suing the state college on behalf of eight students for violations of the 14th Amendment. But according to WNDU, Judge Damon Leichty made a stunning statement during Tuesday’s oral arguments in the case implying that one has no right to bodily autonomy.
“At one point during Tuesday’s proceedings, the subject of exemptions to the vaccine were presented,” wrote reporter Zach Horner. “Bopp and Judge Damon R. Leichty went back and forth over IU needing to require exemptions for religious reasons, bodily autonomy, and right to choose medical treatment. The judge said, with regard to bodily autonomy, there is no caselaw precedent set to establish bodily autonomy as a fundamental right, and that it is a liberty, thus may not be a reason to scrap the vaccine mandate from IU.”
While judges will often ask questions of both sides to play devil’s advocate in a way that does not indicate their ultimate ruling, this statement at face value – that there is no case law on the right to bodily integrity – is stunning. In fact, there is endless, ironclad case law dating back 130 years establishing the right to make medical choices for one’s body as the most foundational liberty. In Cruzan v. Director, Missouri Department of Health (1990), the Supreme Court asserted emphatically: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”
As I chronicled several months ago, there is endless case law that is treated as sacred by lower court judges because it’s enmeshed in the court-created right to an abortion. In fact, the courts have ruled that bodily integrity is so strong that it prevents government from regulating a positive action taken by an individual, such as assisted suicide or performing an abortion, even though those decisions result in taking a life. How much more so those principles established in the line of cases on bodily autonomy and medical privacy would apply against an unprecedented mandate that the individual take a positive action against one’s own body. In other words, if government cannot prohibit positive actions one takes in pursuit of health care decisions, it most certainly can’t prohibit inaction, such as the refusal to take an experimental shot or wear a mask.
Had this been an abortion case, which is much less a fundamental right than merely existing without an experimental injection (even if one subscribes to such a right), every GOP-appointed judge would have applied Roe as precedent. They would have subjected the state mandate to “strict scrutiny,” forcing the state to demonstrate that this is the least restrictive means of achieving a vital state interest and to show all their math and science in defense of such action.
In this case, the state most likely couldn’t even pass a weaker rational basis test, given that we are dealing with very young adults who are not at risk for the virus, but according to the CDC’s own data, are most at risk for myocarditis from the shot, particularly among the male students. For 18- to 24-year-old males, the CDC’s Advisory Committee on Immunization Practices estimates as much as a 200-fold increase in myocarditis cases within seven days of the second dose over the background rate of everyday myocarditis occurrence. Forcing such an experiment even without these known problems is already a violation of the Nuremberg Code.
When Bopp brought up the unprecedented number of serious side effects and over 9,000 deaths reported to the Vaccine Adverse Event Reporting System (VAERS), Judge Leichty reportedly said the system is not peer-reviewed scientific data. VAERS is a cumbersome government surveillance system where doctors have to spend a lot of time documenting evidence and must sign an affidavit with the threat of jail time for lying in order to log an incident. The fact that the government’s own surveillance system shows more death reports than all previous vaccines combined and that this is of no concern to a judge in a case where people are being forced into it is quite shocking.
There is simply no way such a mandate can survive strict scrutiny. Moreover, the case law is so strong against state coercion against bodily integrity that strict scrutiny is likely not even enough. In Union Pacific Railway Co. v. Botsford, Justice Gray noted, “The right to one’s person may be said to be a right of complete immunity; to be let alone,” which implies that there is virtually nothing a state can do against one’s body even with strong arguments and science to back it up.
Judge Leichty was appointed to the United States District Court for the Northern District of Indiana by President Trump in 2019. You can bet your bottom dollar that if an abortion case came before him, he wouldn’t blithely dismiss it as lacking any case law precedent on bodily autonomy. It’s true that true conservative judges don’t believe that there is a right to privacy to prevent government from regulating certain behavior, but everyone agrees there is a natural right to bodily autonomy to the extent that government can’t coerce affirmative action be taken against your body in order to live freely.
It remains to be seen whether the judge will side with the students on other grounds, such as the fact that the university is violating the Emergency Use Authorization statute, which requires that experimental medicines remain optional.
What’s so frustrating about the initial vibes from even Republican judges in vaccine mandate lawsuits is that the courts are simultaneously creating rights under the guise of personal choice and medical freedom at breakneck speed. Earlier this week in Tennessee, a federal judge placed a temporary injunction on a state law requiring businesses that choose to allow men in female bathrooms (or vice versa) to post signs notifying patrons.
“The plaintiffs have presented evidence that they have strived to be welcoming spaces for communities that include transgender individuals and that the signage required by the Act would disrupt the welcoming environments that they wish to provide,” wrote Judge Aleta Trauger of the U.S. District Court for the Middle District of Tennessee. “That harm would be real, and it is not a harm that could simply be remedied by some award at the end of litigation.”
Hence, people have the right to freely use the opposite sex’s bathroom without a public warning because it would “disrupt a welcoming environment,” but the same people have no right to refrain from having their body injected with potential clot shots and their breathing orifices covered with cloth. Businesses can be completely shut down by government for months, but can’t be told merely to warn people if they plan to absurdly allow men in female bathrooms.
What is self-evident is that the courts are a one-way street and a dead end for those seeking defense of true civil liberties and justice. The half-century GOP promise to change the judicial corruption was an epic failure.