Forced vaccination case divides top NC court on basic rights

North Carolina’s highest court attracted national attention with its recent decision in the case of a 14-year-old who was forced to take the COVID vaccine.

With a 5-2 vote, the North Carolina Supreme Court ruled on March 21 that Tanner Smith and his mother, Emily Happel, can pursue claims that the forced vaccination in 2021 violated their state constitutional rights.

Few commentators have focused on one of the ruling’s key components: the court’s ideological divide over two rights guaranteed to residents of the Tar Heel State.

Chief Justice Paul Newby wrote the case’s majority opinion. All five Republican justices endorsed it.

“First, we agree that the state constitution protects a parent’s right to control her child’s upbringing, including her right to make medical decisions on her child’s behalf,” Newby wrote in supporting Smith and Happel.

The lawsuit contends that an Old North State Medical Society clinic worker at a Guilford County public high school forced Smith to take the COVID shot. Happel never had granted permission for her son’s vaccination.

“[T]he constitutional right to full ‘custody and control’ over one’s minor children would ring hollow if it did not include the right to consent on the child’s behalf, as well as the right to seek a constitutional remedy when the State disregards the absence of that consent,” Newby wrote. “Our state constitution and caselaw have long implied the existence of the precise right plaintiffs claim here. We directly recognize it today.”

That last sentence is significant. The text of the North Carolina Constitution does not spell out details of the right Newby and his colleagues now “directly recognize.” Justices clarified a basic right that had been only implied in the past.

The court’s majority took another significant step related to state constitutional rights. Newby focused on Article I, Section 19 of North Carolina’s governing document.

“[W]e agree that the 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,” the chief justice wrote.

After discussing these basic rights, Newby and the court’s majority turned to a federal law, the Public Readiness and Emergency Preparedness Act. It was designed to shield medical providers from legal action during medical emergencies like the COVID pandemic.

“[T]he ambiguity of the PREP Act’s language requires us to consider whether Congress intended to include even unconstitutional conduct within the immunity’s broad scope,” Newby wrote. “Defendants ask us to adopt this literal reading.”

“Plaintiffs, on the other hand, contend that Congress could not have intended to immunize — indeed, even incentivize — unconstitutional conduct. We agree with plaintiffs,” Newby wrote.

Defendants had argued that the PREP Act protected them from lawsuits unless the COVID vaccine caused “death or serious physical injury,” Newby explained. “The ramifications of this approach are deeply repugnant to our constitutional traditions and the history of this State and Nation.”

“We hold that the plain text of the PREP Act does not bar claims brought under our state constitution,” Newby wrote.

The case now heads back to the North Carolina Appeals Court, Judges there will wrestle with Smith and Happel’s constitutional arguments.

Meanwhile, the state Supreme Court’s dissenting Democrats criticized their Republican colleagues’ decision.

“Self-described textualists and originalists have historically professed to avoid ‘turn[ing] somersaults’ to reach particular interpretations of the written law,” Justice Allison Riggs wrote. “The majority here should abandon any such pretense; through a series of dizzying inversions, it explicitly rewrites an unambiguous statute to exclude state constitutional claims from the broad and inclusive immunity” provided by the federal PREP Act.

Riggs specifically targeted the majority’s approach to the two state constitutional rights highlighted in Smith and Happel’s case.

“The majority also recognizes two implied fundamental state constitutional rights — one arbitrarily defined without any apparent principle — a right to bodily integrity divorced from bodily autonomy — and the other defined in principle but applied arbitrarily — the right of parents to direct the raising of their children,” the dissent warned. “So, while I agree that the constitution protects rights to bodily integrity and those of parents to care for their children, I cannot concur in their articulation here.”

Riggs labeled the majority’s constitutional analysis “fundamentally unsound.”

Regardless of the ultimate outcome of Smith and Happel’s forced vaccination case, it’s clear that North Carolina’s highest court faces significant divisions over the contours of basic rights.

That divide could influence how the court decides to safeguard North Carolinians’ freedoms now and in the future.

Mitch Kokai is senior political analyst for the John Locke Foundation.