By GARY D. ROBERTSON Associated Press
RALEIGH, N.C. (AP) — A North Carolina mother and son can sue a public school system and a doctors’ group on allegations they gave the boy a COVID-19 vaccine without consent, the state Supreme Court ruled on Friday, reversing a lower-court decision that declared a federal health emergency law blocked the litigation.
A trial judge and later the state Court of Appeals had ruled against Emily Happel and her son Tanner Smith, who at age 14 received the vaccination in August 2021 despite his protests at a testing and vaccination clinic at a Guilford County high school, according to the family’s lawsuit.
Smith went to the clinic to be tested for COVID-19 after a cluster of cases occurred among his school’s football team. He did not expect the clinic would be providing vaccines as well, according to the litigation. Smith told workers he didn’t want a vaccination, and he lacked a signed parental consent form to get one. When the clinic was unable to reach his mother, a worker instructed another to “give it to him anyway,” Happel and Smith allege in legal briefs.
Happel and Smith sued the Guilford County Board of Education and an organization of physicians who helped operate the school clinic, alleging claims of battery and that their constitutional rights were violated.
A panel of the intermediate-level appeals court last year ruled unanimously that the federal Public Readiness and Emergency Preparedness Act shielded the school district and the Old North State Medical Society from liability. The law places broad protections and immunity on an array of individuals and organizations who perform “countermeasures” during a public health emergency. A COVID-19 emergency declaration in March 2020 activated the law’s immunity provisions, Friday’s decision said.
Chief Justice Paul Newby, writing Friday’s prevailing opinion, said that the federal law did not prevent the mother and son from suing on allegations that their rights in the state constitution had been violated. In particular, he wrote, there is the right for a parent to control their child’s upbringing and the “right of a competent person to refuse forced, nonmandatory medical treatment.”
The federal law’s plain text led a majority of justices to conclude that its immunity only covers tort injuries, Newby wrote, which is when someone seeks damages for injuries caused by negligent or wrongful actions. “Because tort injuries are not constitutional violations, the PREP Act does not bar plaintiffs’ constitutional claims,” he added while sending the case back presumably for a trial on the allegations.
The court’s five Republican justices backed Newby’s opinion, including two who wrote a short separate opinion suggesting the immunity found in the federal law should be narrowed further.
Associate Justice Allison Riggs, writing a dissenting opinion backed by the other Democratic justice on the court, said that state constitutional claims should be preempted from the federal law. Riggs criticized the majority for “fundamentally unsound” constitutional analyses.
“Through a series of dizzying inversions, it explicitly rewrites an unambiguous statute to exclude state constitutional claims from the broad and inclusive immunity,” Riggs said.