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A Crack in the PREP Act?
North Carolina Supreme Court decides that a family can sue over unwanted COVID-19 shot. [The dissenting opinion opens up the possibility of criminal charges.]
Carolina Journal photo by Mitch Kokai PUBLISHED: March 22, 2025 11:03pm Pacific
UPDATED: March 23, 2025 8:20am Pacific
This decision is a hot mess. Medical battery will continue under the PREP Act.
The North Carolina Supreme Court appears to have decided ONLY that the case should continue in the Appeals Court in regards to state constitution related issues, but upheld the PREP Act protection from lawsuit and liability in regards to medical battery.
The PREP Act’s plain text leads us to conclude that its immunity only covers tort injuries. Because tort injuries are not constitutional violations, the PREP Act does not bar plaintiffs’ constitutional claims.1 We therefore affirm the decision below as to plaintiffs’ battery claim, reverse as to their constitutional claims, and remand for further proceedings.
1 Unless otherwise noted, the words “constitutional” and “unconstitutional” refer to the state constitution. (page 2)
III. Conclusion
We hold that the plain text of the PREP Act does not bar claims brought under our state constitution. On remand, the Court of Appeals should decide the remaining state constitutional issues raised by the parties in their briefs to that court. These questions include whether plaintiffs’ complaint sufficiently alleged that defendant ONSMS was a state actor and whether plaintiffs have an adequate state remedy available for their constitutional claims. (pages 46-47)
HOWEVER, in her dissenting opinion, Justice Riggs seemed to open the door to CRIMINAL charges!!!
PREP Act immunity is one from civil suits and liability.
A person who violates a penal statute may still be charged and punished criminally because a prosecution is not in any sense a “claim for loss,” and our statutes already criminalize the unlawful administration and dispensation of medication, including to children. See, e.g., N.C.G.S. § 110-102.1A (2023) (criminalizing administration of medication without parental consent to children attending childcare facilities); N.C.G.S. § 90-85.40 (2023) (criminalizing violations of the North Carolina Pharmacy Practice Act).
Licensing discipline is likewise not preempted by the PREP Act. See Leonard, 61 F.4th 914–15 (noting that the argument the PREP Act precludes licensing discipline “stretches the text too far. The more natural reading of the statute is that covered persons are immunized from suits by plaintiffs trying to recover for the plaintiffs’ losses caused by covered persons, not suits by those seeking to impose a loss on the covered person.”).
Congress clearly weighed its need to encourage a fulsome response to nationwide medical emergencies against the possibility of wrongdoing, and it thus did not immunize covered persons from the comparatively greater punishments of deprivations of liberty and livelihood.(pages 68-69)
A Guilford County teenager and his mother can move forward with their lawsuit against the local school board and the Old North State Medical Society over a forced COVID-19 vaccination.
The state Supreme Court reversed lower court rulings against the teen and mother with a 5-2 decision Friday.
Tanner Smith was 14 when he was forcibly vaccinated at a Guilford high school in 2021. Smith and mother Emily Happel argued in court that a clinic worker from the medical society administered the COVID vaccine against the teen’s will and without parental consent.
Over Smith’s protests, the unnamed clinic worker is alleged to have said, “Give it to him anyway.”
Lower courts have ruled that the federal Public Readiness and Emergency Preparedness (PREP) Act protected both the school system and the medical society from legal liability.
“[W]e are tasked with considering whether Congress intended the PREP Act to immunize state actors who forcibly vaccinate a child without his or his parent’s consent, thereby committing a battery and infringing their fundamental rights under the state constitution,” wrote Chief Justice Paul Newby for the state Supreme Court’s majority.
“The PREP Act’s plain text leads us to conclude that its immunity only covers tort injuries. Because tort injuries are not constitutional violations, the PREP Act does not bar plaintiffs’ constitutional claims,” Newby wrote.
“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 about the court’s support for Smith and Happel’s arguments.
“[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 added. “Our state constitution and caselaw have long implied the existence of the precise right plaintiffs claim here. We directly recognize it today.”
The court’s majority identified another constitutional right tied to Smith and Happel’s suit. “[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,” Newby wrote.
“[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,” according to the majority opinion. “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.
“The literalist interpretation defendants urge us to adopt today defies even the broad scope of the statutory text. Under this view, Congress gave carte blanche to any willful misconduct related to the administration of a covered countermeasure, including the State’s deliberate violation of fundamental constitutional rights, so long as it fell short of causing ‘death or serious physical injury.’ … The ramifications of this approach are deeply repugnant to our constitutional traditions and the history of this State and Nation,” he added.
“We hold that the plain text of the PREP Act does not bar claims brought under our state constitution,” Newby wrote.
The case will head back to the state Appeals Court to address the plaintiffs’ constitutional claims.
All five Republican justices supported Newby’s opinion. Justice Phil Berger Jr. wrote a separate concurring opinion supported by Justice Tamara Barringer.
“‘[F]orced medication [is] a battery, and the[re is a] long legal tradition protecting the decision to refuse unwanted medical treatment,’” Berger wrote, citing the 1997 precedent Washington v. Glucksberg. “That legal tradition is rooted in the Lockean notion of self-ownership – that bodily autonomy is the height of personal freedom and fundamental property rights, provided however that your actions do not harm others.”
“I write separately to note that the sweeping grant of immunity in the PREP Act seems contrary to this basic understanding,” Berger added. “The government’s reading of the Act appears to override state consent laws such that intentional torts may be cloaked with immunity when the harm inflicted falls short of death or serious physical injury. But shouldn’t immunity under the PREP Act be predicated on a lawful administration of a covered countermeasure?”
“Given the fundamental principles articulated by Locke and echoed in Glucksberg, it is difficult to concede that the PREP Act confers immunity for outright wrongful acts,” Berger concluded.
The high court’s two Democrats dissented from the decision in Happel v. Guilford County Board of Education.
“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 ‘from suit and liability under Federal and State law with respect to all claims for loss’ established by the Public Readiness and Emergency Preparedness Act (PREP Act).”
“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,” Riggs added. “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. Because I find both the PREP Act and constitutional analyses fundamentally unsound, I respectfully dissent.”
“The facts alleged in the plaintiffs’ complaint are undoubtedly troubling; as even the defendants’ policies provided, the administration of a vaccine to a minor child without parental consent in these circumstances was wrong,” Riggs wrote. “The minor child and his parents had every right and reason to be outraged at their losses of their physical and parental rights. And, absent any congressional countermand, they should have the opportunity to pursue any lawful claims for those losses against those responsible.”
Language in the federal PREP Act is clear, Riggs wrote. “That this plain and unambiguous language leads to what a judge might view as undesirable policy outcomes — or even unforeseen ones — is no reason to disregard congressional intent; to the contrary, it reinforces our duty to apply it consistent with its broad reach.”
“After all, as the majority sees no irony in preaching, we are ‘a government of the people, not of the judges,’” she added.
A North Carolina mother and son can sue a public school system and a doctors’ group on allegations they gave the boy a COVID-19 vaccine without consent, the state Supreme Court ruled on Friday, reversing a lower-court decision that declared a federal health emergency law blocked the litigation.
A trial judge and later the state Court of Appeals had ruled against Emily Happel and her son Tanner Smith, who at age 14 received the vaccination in August 2021 despite his protests at a testing and vaccination clinic at a Guilford County high school, according to the family’s lawsuit.
Smith went to the clinic to be tested for COVID-19 after a cluster of cases occurred among his school’s football team.
He did not expect the clinic would be providing vaccines as well, according to the litigation. Smith told workers he didn’t want a vaccination, and he lacked a signed parental consent form to get one.
When the clinic was unable to reach his mother, a worker instructed another to “give it to him anyway,” Happel and Smith allege in legal briefs.
Happel and Smith sued the Guilford County Board of Education and an organization of physicians who helped operate the school clinic, alleging claims of battery and that their constitutional rights were violated.
A panel of the intermediate-level appeals court last year ruled unanimously that the federal Public Readiness and Emergency Preparedness Act shielded the school district and the Old North State Medical Society from liability.
The law places broad protections and immunity on an array of individuals and organizations who perform “countermeasures” during a public health emergency.
A COVID-19 emergency declaration in March 2020 activated the law’s immunity provisions, Friday’s decision said.
Chief Justice Paul Newby, writing Friday’s prevailing opinion, said that the federal law did not prevent the mother and son from suing on allegations that their rights in the state constitution had been violated.
In particular, he wrote, there is the right for a parent to control their child’s upbringing and the “right of a competent person to refuse forced, nonmandatory medical treatment.”
The federal law’s plain text led a majority of justices to conclude that its immunity only covers tort injuries, Newby wrote, which is when someone seeks damages for injuries caused by negligent or wrongful actions.
“Because tort injuries are not constitutional violations, the PREP Act does not bar plaintiffs’ constitutional claims,” he added while sending the case back presumably for a trial on the allegations.
The court’s five Republican justices backed Newby’s opinion, including two who wrote a short separate opinion suggesting the immunity found in the federal law should be narrowed further.
Associate Justice Allison Riggs, writing a dissenting opinion backed by the other Democratic justice on the court, said that state constitutional claims should be preempted from the federal law.
Riggs criticized the majority for “fundamentally unsound” constitutional analyses.
“Through a series of dizzying inversions, it explicitly rewrites an unambiguous statute to exclude state constitutional claims from the broad and inclusive immunity,” Riggs said.
James Roguski
310-619-3055
JamesRoguski.substack.com/archive
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