See: PBA files lawsuit against COVID vaccine mandate for NYPD, city workers

Oct 25, 2021

STATEN ISLAND, N.Y. — The New York City Police Benevolent Association says it filed a lawsuit Monday against the city’s COVID-19 vaccine mandate for all city workers, including the NYPD.

The union announced on Twitter it filed a lawsuit in Staten Island state Supreme Court that seeks to overturn the mandate. PBA leaders also plan to file a request in court for a temporary injunction preventing the mandate from being implemented by the city while the lawsuit proceeds.

I doubt the PBA lawsuit to put a hold on NYC’s one-size-fits-all vaccine mandate will go very far unless their lawyers demand the protection of “strict scrutiny” be applied to the mandate.

In order for the protection of strict scrutiny to be applicable, the PBA must show that a government mandated medical treatment infringes upon a fundamental right of NYC’s finest, e.g., in Washington v. Harper, 494 U.S. 210, 229 (1990) we find “The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty."

The fact is, a government imposed act which “impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional.” See: Harris v. McRae United States Supreme Court (1980) Also see City of Mobile v. Bolden, 466 U.S. 55, 76, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980)

And specifically, with reference to New York, see Rivers v. Katz (67 N.Y.2d 485) 1986, a New York State Court of Appeals case:

” In Storar, we recognized that a patient’s right to determine the course of his medical treatment was paramount to what might otherwise be the doctor’s obligation to provide medical care, and that the right of a competent adult to refuse medical treatment must be honored, even though the recommended treatment may be beneficial or even necessary to preserve the patient’s life. This fundamental common-law right is coextensive with the patient’s liberty interest protected by the due process clause of our State Constitution.

In our system of a free government, where notions of individual autonomy and free choice are cherished, it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to insure that the greatest possible protection is accorded his autonomy and freedom from unwanted interference with the furtherance of his own… ”

Additionally “The mere chilling of a Constitutional right by a penalty on its exercise is patently unconstitutional.” Shapiro v. Thompson, 394 U.S. 618

So, the circumstances surrounding the NYC vaccine mandate do demand “strict scrutiny” be applied by the court.

Keep in mind, the protection of strict scrutiny is not meant to prohibit a government act, which in this case is a COVID vaccination that is asserted to be necessary in promoting the general welfare of the people. Instead, the protection of strict scrutiny is there to insure the government mandated vaccination:

(A) be narrowly tailored to achieve the government’s purpose,

(B) the purpose must be clearly defined and be based upon scientific and logical reasoning,

(C) and, it must use the least restrictive means to achieve the government’s stated purpose.

Seems quite clear New York’s judicial system needs to stop abdicating its duty and start protecting our police, firefighters, teachers and healthcare workers, and afford them the protection of strict scrutiny which they are indeed entitled to under our system of law.

Has New York’s judicial system become so inept that it is incapable of applying “strict scrutiny” in a manner which allows the use of vaccination in furthering the general welfare, while at the same time accommodating the rights of public employees? For example, requiring the use of N95 masks in appropriate situations; having a daily temperature check of employees when showing up for work; periodic testing for the COVID virus; social distancing; providing an exemption for those with natural immunity, and/or those who are resistant to the vaccination, but hold them to the above precautionary methods; and other such common sense measures which could be narrowly tailored by the Court to promote the general welfare of all, while likewise preserving the rights of government employees.

Is not time for New York’s Court to step in and end the divide among NYC’s citizens, and work to accommodate all in such troubled and contentious times?