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A mother can proceed with her lawsuit against a public school board and medical provider after her son was given a covid-19 vaccination without consent, North Carolina's Supreme Court has ruled.
The court's opinion, issued Friday, came after Emily Happel sued Guilford County Board of Education and Old North State Medical Society in August 2022, alleging battery and violation of state and federal constitutional rights after her son, Tanner Smith, received a first dose of the Pfizer vaccine against his wishes and without her consent.
The case arose after a covid-19 cluster was detected among the Western Guilford High School football team in August 2021. Activities were suspended until players had been tested or cleared by a health professional to return, according to details from the ruling.
Smith, who was 14 at the time, was driven by his stepfather to a clinic at his high school that was run in partnership with Old North State Medical Society. He did not want to be vaccinated, did not bring a consent form and was unaware vaccinations were on offer, the family said.
Inside the clinic, Tanner was given a form to fill in while his stepfather waited outside, according to details of the case. Workers at the clinic tried to call the boy's mother, but she did not answer, before one staff member was instructed to "give it to him anyway," the family alleged, adding that no attempt was made to contact his stepfather waiting outside.
The Guilford County Board of Education and medical provider had previously successfully argued the case should be dismissed, citing the federal Public Readiness and Emergency Preparedness (PREP) Act of 2005. Declarations under this act provide immunity from liability for "entities and individuals" involved in the public health response to a threat, including manufacturers, health-care staff and government workers, except in cases of "willful misconduct."
A PREP declaration relating to covid-19 health measures had been triggered in March 2020. It has previously been used to cover public health threats such as smallpox, Zika virus and viral hemorrhagic fevers.
The family appealed the decision, abandoning arguments about the federal constitution, but their case was dismissed again, before they filed a petition for state Supreme Court review.
Friday's decision now paves the way for further proceedings, with the judges ruling the PREP Act does not cover claims brought under the state constitution. The ruling was split 5-2 along party lines, according to the Associated Press.
"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," Chief Justice Paul Martin Newby, a Republican, wrote in the prevailing opinion.
"The decision of the Court of Appeals is affirmed with respect to plaintiffs' battery claim, reversed with respect to their state constitutional claims, and remanded for further proceedings consistent with this opinion," he said. Newby was backed by fellow Republican Justices Phil Berger and Tamara Barringer, who also provided concurring opinions in the ruling.
Attorney Steven Walker, of law firm Walker Kiger, said the family are "very happy" with the decision which he described as a "significant victory."
"I was very pleased to see the Court recognize the serious liberty implications of government actors administering medicine or other treatment without the consent of the patient or the patient's parent," he told The Washington Post in an email.
The Guilford County Board of Education and Old North State Medical Society did not immediately respond to a request for comment Saturday.
The case highlights the ongoing backlash from covid-era regulations that sparked a wave of litigation and debate when it comes to public health measures like vaccine mandates, mask-wearing, school closures and business shutdowns. Public health officials fear a patchwork system of state regulations makes it more difficult to protect people from infectious diseases that cross state borders.
In a dissenting opinion from the state Supreme Court, Justice Allison Riggs, who is a Democrat, said the majority judgment used a "series of dizzying inversions" to exclude state constitutional claims from the broad immunity provided under the PREP Act, creating a "glaring loophole" that undermines the protection such a law is meant to provide.
"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," she said in her opinion, backed by another Democrat, Justice Anita Earls.
"Because I find both the PREP Act and constitutional analyses fundamentally unsound, I respectfully dissent," she said.