A group of ten former Creighton University students will meet in the coming week to decide if they should appeal a Nebraska judge’s decision to deny them an injunction against the university’s mandatory COVID-19 inoculation policy. The Douglas County district judge ruled the Catholic university’s refusal to offer religious exemptions to the shots did not represent irreparable harm. Nevertheless, the students now face looking elsewhere for higher education.
“Now we’ve got three options ahead of us and we’re going to meet next week to kind of hammer things out and decide what course we want to take,” said Attorney Robert M. Sullivan. “We can appeal it or take it up to the appellate court or the Nebraska Supreme Court, or we can let it stand and file a different lawsuit—a contract suit, breach of contract for damages. Or the students could just say, ‘Well, we’re going to wash our hands and move on with our lives and put everything in the rearview mirror.’ ”
Sullivan filed suit on Sept. 8 against Creighton, a 9,000-student Jesuit university headquartered in Omaha. The suit started with four plaintiffs, but eventually grew to ten students, who refused to accede to Creighton’s demand they take COVID-19 mRNA genetic-serum shots. The students said they have religious objections to the shots, which to varying degrees used cells from aborted children in research, development, testing and production.
A report from the Charlotte Lozier Institute said of the mRNA COVID vaccines developed under emergency authorization in the United States, those from Pfizer-BioNTech and Moderna used cell lines derived from abortions in some of the confirmatory lab testing. United States bishops have said those shots are morally permissible because of the remoteness of material cooperation in the evil of abortion. Johnson & Johnson and AstraZeneca used abortion-derived cell lines in their vaccine development and/or production, something much more morally problematic for Catholics.
Creighton policy calls for “de-enrollment” of students who refuse to take COVID-19 shots. Lauren Ramaekers, a Catholic and president of the university’s students for life group, said she was not only expelled under the shot policy, but ordered not to set foot on campus, even for cultural or athletic events. She had been scheduled to graduate in December.
“It’s a sad situation for these kids, so hopefully if they decide to move it on to the Supreme Court or the Court of Appeals we get a quick reversal from them and the kids are reinstated to go back to school,” Sullivan said.
Douglas County District Judge Marlon A. Polk didn’t didn’t directly address Sullivan’s argument that Creighton breached its contract with the students by forcing them to choose between their sincerely held religious beliefs or being coerced into taking a shot they find morally repugnant.
“…The court concludes that the plaintiffs’ request for injunctive relief is based on a breach of contract theory,” Polk wrote in a three-page order issued Sept. 22. “However, to the extent that there was a contract between plaintiffs and defendant, and without finding that such a contract existed, the court finds that the plaintiffs’ agreement to receive a COVID-19 vaccine became part of that contract.”
Creighton enacted a policy on July 7 requiring students to be “fully vaccinated” against COVID-19 for the fall semester that began Aug. 18. No religious exemptions were offered by the Catholic institution. Students could sign a temporary exemption that said they would get COVID-19 shots once the U.S. Food & Drug Administration (FDA) gave the jabs final approval. The FDA on Aug. 23 approved a shot developed by Pfizer for BioNTech. The approval letter covers the branded version of the Pfizer-BioNTech shot, which will be marketed under the trade name Comirnaty.
According to Liberty Counsel, a public-interest and civil rights law firm, Comirnaty is not yet available in the United States. The Pfizer-BioNTech shots given since Aug. 23 are still under the federal emergency-use authorization (EUA) order, which means they are still experimental and can be refused, the law firm says. “…Under the EUA Statute, administration of the currently available vaccines cannot be mandatory,” Liberty Counsel wrote in a letter on behalf of its clients who are fighting in a different case for religious exemption from the jab.
According to the FDA, the approved Comirnaty shot and the emergency-use Pfizer-BioNTech COVID-19 vaccines can be “used interchangeably” for administering the vaccine series, but are “legally distinct with certain differences that do not impact safety or effectiveness.”
Sullivan said he might raise the issue of the legal status of the available vaccines. “If we file a separate lawsuit, there’s a chance we could do that and determine whether or not it was even possible for the students to get vaccinated with the (approved) Pfizer vaccine,” Sullivan said. “I really couldn’t put a lot of effort into that approach to the case because there is just too much unknown, too much conflicting information.
“If I would have been able to bring in an expert quickly who said these are different (drugs), here’s why and here’s the study I’ve done, I could have added that in. But our strongest argument was that there was a contract between the students and the school and the students upheld their version and didn’t agree to the modification. The court just didn’t agree with us.”
The Nebraska case is among dozens of lawsuits filed across at least 15 states in recent weeks, challenging COVID-19 vaccine mandates. A federal judge in Utica, New York, issued a temporary restraining order against that state’s mandatory COVID vaccine for health care workers. A federal judge in Kalamazoo, Mich., issued a preliminary injunction against Western Michigan University over its vaccine policy for student athletes. Local and federal judges in other areas threw out similar suits that challenged COVID vaccines. Experts said the issue will likely end up before the U.S. Supreme Court.
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