NC Supreme Court allows lawsuit against school that vaccinated child against parent’s will, testing federal PREP Act

The North Carolina Supreme Court is allowing the mother of a minor child who received a COVID-19 vaccination against her and the child’s will to sue the school that administered it.

The case, which was decided by a 5-2 vote along party lines, is an important challenge to the federal Public Readiness and Emergency Preparedness Act, or PREP, which grants sweeping immunity to health care workers during times of public health emergency.

Families in Vermont and Maine have tried to sue after their 5- and 6-year-old children were vaccinated against their will, but courts there have blocked those attempts, citing protections in the federal act. 

But the Republican-led North Carolina court decided last month that Emily Happel could sue the Guilford County school district and a local health clinic after workers ordered the vaccination of her 14-year-old son Tanner Smith without her consent and against her and the boy’s wishes. 

Writing for the majority, Chief Justice Paul Newby quoted U.S. Supreme Court Justice Neil Gorsuch, who said that during the pandemic, “we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country.” 

Newby and other Republican justices criticized the school-affiliated health workers for proceeding even after they were unable to reach Happel. Smith didn’t have a permission slip, and said he didn’t want the shot, which was administered in August 2021.  

The workers also made no attempt to contact his stepfather, who was waiting outside in the car. 

Smith had gone to the clinic for a required COVID test following an outbreak on his school’s football team. The school’s letter to parents about the test did not mention that the clinics offered vaccinations, only tests. 

Congress passed the PREP Act in 2005 to grant immunity to medical providers during public health emergencies. The Trump administration declared COVID such an emergency in March 2020. 

The act offers an exception for “willful misconduct” resulting in injury or loss, but courts in other states have found the loss of parental rights does not meet this standard. 

Instead of focusing on possible violations of federally protected rights, Happel’s case alleged violation of her state-protected parental rights, something the court agreed with.  

The state constitution’s “Law of the Land Clause protects the right to bodily integrity, which we define as the right of a competent person to refuse forced, nonmandatory medical treatment. Our conclusion aligns with the Supreme Court’s understanding of the bodily integrity right under the Due Process Clause,” Newby wrote. 

Two other justices wrote in a concurring opinion “that the sweeping grant of immunity in the PREP Act seems contrary to this basic understanding” of constitutionally protected “bodily autonomy,” Reason.com reported. “[S]houldn’t immunity under the PREP Act be predicated on a lawful administration of a covered countermeasure?” 

The dissenting opinion said the court was using “a series of dizzying inversions” to get around the broad immunity offered by the PREP Act, although it admitted the family had been wronged. 

“The minor child and his parents had every right and reason to be outraged at their losses of their physical and parental rights,” Justice Allison Riggs wrote in dissent, but argued relief should come from Congress, which passed the law.