Why Vaccine Mandates Are Illegal Under La. Constitution, Informed Consent Laws

Two constitutional attorneys who have been fighting Gov. John Bel Edwards’ mandate explained the legal position of their clients and the status of their cases at the Ronald Reagan Newsmaker Luncheon.

Jeff Wittenbrink of Baton Rouge and Jimmy Faircloth of Alexandria were optimistic that their clients will ultimately prevail.  Wittenbrink represents Rev. Tony Spell of Life Tabernacle Church, who was arrested and charged with holding church services in violation of the governor’s “mandates.”  

Faircloth is representing physicians and nurses in the Lafayette and Shreveport areas who have been told by their employers — Ochsner General and Our Lady of Lourdes Hospital in Lafayette, and Ochsner Health and University Health in Shreveport — that they will be terminated if they do not take a Covid vaccination.

Also attending the meeting was Louisiana Solicitor General Liz Murrill, who represents the citizens of the state on behalf of the Attorney General, Jeff Landry.  Murrill was the main speaker at the subsequent meeting of the Ronald Reagan Newsmaker Luncheon. See story on Page 6.

The video of the meeting featuring Wittenbrink and Faircloth s can be viewed by clicking on the following QR codes:

Faircloth provided the Central City News with a copy of the brief he filed in his suit against the two hospitals in Shreveport.  This brief represents the best legal analysis of the rights of employees in Louisiana facing forced vaccination orders by private or quasi-public institutions.

Jason Hayes 

v. 

University Health & 

Ochsner Health Shreveport

Judge Craig O. Marcotte

Plaintiffs’ Memorandum in Opposition to Exception of No Cause of Action, Exception of No Right of Action, and Exception of Prematurity

May It Please the Court:

A.​ Introduction

Defendant’s exceptions are based on an inaccurate description of Plaintiffs’ claims, avoidance of multiple sources of Louisiana authority, and reliance on inapplicable authority from other states interpreting laws not at issue in this proceeding.  To be clear, Plaintiffs’ claims are based on the fundamental right of each person to make healthcare decisions under Louisiana law; in particular the right to refuse medical treatment.  

This right is recognized in three sources of authority: 

(1)Article 1, § 5 of the Louisiana Constitution, 

(2)The Louisiana Medical Consent Law, La. R.S. 40:1159.7, 

(3)General privacy tort law. Each source has been addressed by the Louisiana Supreme Court. The claim for injunctive relief is limited to the first two sources, Article 1, § 5 and R.S. 40:1159.7, both of which create an affirmative right to refuse medical treatment. Plaintiffs seek to enforce clearly established Louisiana law, not to break new ground.  

​ Moreover, Defendant’s description of the vaccine mandate as a “choice” is squarely defeated by its own directive: “Any employee, leader or provider who does not receive the vaccination within the specified timeline will be subject to disciplinary action, including termination.”  

By its clear terms, the mandate is an employment directive under threat of discipline; a forced choice intended to coerce compliance. The very purpose of informed consent is to provide persons “the freedom to personally decide intelligently, voluntarily and without coercion whether to undergo the recommended treatment.” Snider v. Louisiana Med. Mut. Ins. Co., 2013-0579 (La. 12/10/2013); 130 So. 3d 922, 930 n.7. 

Defendant’s mandate is unquestionably intended to drive that decision.

Third, violation of an affirmative constitutional or statutory right causes per se irreparable harm.  See Jurisich v. Jenkins, 99-0076, p. 4 (La. 10/19/99); 749 So. 2d 597, 599-600 (“Once a plaintiff has made a prima facie showing that the conduct to be enjoined is reprobated by law, the petitioner is entitled to injunctive relief without the necessity of showing that no other adequate legal remedy exists.”).

​ Fourth, Defendant relies on Louisiana cases not involving the right to refuse medical treatment.  No Louisiana court has ever suggested that Hondroulis’s was wrongly decided or that the right to refuse medical treatment is only enforceable by certain persons in a limited context.  

Further, Defendant’s reliance on cases from other states is unassailing.  This case concerns the assertion of rights under Louisiana law.  To the extent that cases elsewhere provide context, the Court is directed to the recent decision by the Southern District of New York enjoining New York’s vaccine mandate for healthcare workers based on the refusal to allow for religious exemptions. See Dr. A, et al. v. Hochul, et al., No. 1:21-CV-1009-DNH-ML (N.D.N.Y. Oct. 12, 2021), ECF No. 22.

HHH

B.​ Plaintiffs’ Petition States a Cause of Action

1.​ Hondroulis Controls: Article 1, § 5 Provides an “Affirmative” Right to Refuse Medical Treatment

Article 1, § 5, of the Louisiana Constitution provides: “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const. art. I, § 5. It has been well-settled for over 30 years that this provision includes the affirmative right to decide whether to obtain or reject medical treatment, as expressly held by Hondroulis v. Schuhmacher, 553 So. 2d 398, 414 (La. 1989). 

Louisiana’s right to privacy “is one of the most conspicuous instances in which our citizens have chosen a higher standard of individual liberty than that afforded by the jurisprudence interpreting the federal constitution.” State v. Brennan, 99-2291 (La. 5/16/00); 772 So. 2d 64 (quoting State v. Hernandez, 410 So. 2d 1381, 1385 (La. 1982)).  

Prior to Hondroulis, there was an “open question” as to whether Article I, § 5 extended to private conduct, as noted in Jaubert v. Crowley:

[Article 1, § 5’s] reference to a right to privacy represents a change from the language of earlier constitutions. A review of Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts leaves open the question of whether the section was intended to provide constitutional protection against private conduct. Generally, the provision seems to have been drafted as a counterpart to the United States Constitution’s Fourth Amendment prohibition against governmental searches and seizures and other forms of “authoritarian intrusion.” Transcripts, Vol. VI, 1072. However, in The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1 (1974), 

Professor Hargrave concluded that the protection afforded by this provision is not limited to state action because the phrase “no law shall . . .” is conspicuously absent and because the provision does not appear among those sections dealing with procedural rights in criminal cases….” Transcripts, Vol. VI, 1076. 375 So. 2d 1386, 1388 (La. 1979) (addressing invasion of privacy as a tort) (emphasis added).

A decade later, the issue was squarely addressed in Hondroulis, which involved the interpretation of the informed consent statute. The Court began its analysis by observing that “[t]he informed consent doctrine is based on the principle that every human being of adult years and sound mind has a right to determine what shall be done to his or her own body.” Id. at 411. 

After canvassing federal law and the laws of other states, the Court concluded that “[t]he decision to obtain or reject medical treatment clearly should be recognized as falling within this cluster of constitutionally protected choices.” Id. 

This decision, according to the Court, is “an intrinsically personal decision. The patient alone must live with his disorder, encounter the risks of therapy or reap the consequences of treatment. By the same token, the choice will profoundly affect his or her development or life. It may mean the difference between life and death, pain and pleasure, poverty and economic stability.” Id. at 414-15.   

The Court further explained that the language of Article 1, § 5 “was intended to establish an affirmative right to privacy impacting non-criminal areas of law[.]” Id. (emphasis added). 

Leaving no doubt, the Court expressly held: “we conclude that the Louisiana Constitution’s right to privacy also provides for a right to decide whether to obtain or reject medical treatment.” Id. at 415 (emphasis added).

The following year, in Moresi v. State, Dep’t of Wildlife and Fisheries, 567 So. 2d 1081, 1093 (La. 1990) (involving a search and seizure), the Court explained the meaning of an “affirmative” right under Article 1, § 5:

By its clear terms, the constitution explicitly protects every individual’s “person [and] property” from unreasonable searches, seizures, and “invasions of privacy”, thereby affirmatively establishing a right to privacy beyond the domain of criminal procedure. Hargrave, Declaration of Rights, 35 La.L.Rev. 1, 20 (1974). The section establishes an affirmative right of privacy impacting on non-criminal areas of the law. Id.; Hondroulis v. Schumacher, 546 So.2d 466, 473 (La.1989); (additional citations omitted). This affirmative aspect is indicated by the placement of the article deliberately apart from the other criminal procedure guarantees in Sections 13–21. Hargrave, supra. Moreover, the expression “no law shall” was not used, indicating that the protection goes beyond limiting state action… 567 So. 2d at 1093 (emphasis added).  

The Court returned to the informed consent doctrine in Roberson v. Provident House, 576 So. 2d 992 (La. 1991), and again recognized the holding in Hondroulis: “Recently, this Court concluded that the right to privacy contained in Art. 1, § 5 of the 1974 Louisiana Constitution protects an individual’s right to decide whether to obtain or reject medical treatment. Hondroulis v. Schuhmacher, M.D., 553 So. 2d 398, 410 (La. 1988), on rehearing (La. 1989).” 576 So. 2d at 994. Roberson affirmed a battery claim based on a physician’s insertion of an in-dwelling catheter over a patient’s objection.

Multiple appellate courts have recognized the constitutional right to refuse medical treatment in cases involving both public and private actors. In Boyd v. Louisiana Med. Mut. Ins. Co., 593 So. 2d 427 (La. App. 1 Cir. 1991), writ denied, 594 So. 2d 877 (La. 1992), the parents of an infant who contracted polio after being vaccinated with the Sabin oral vaccine sued a physician for failing to inform them of the risks and alternatives, including the Salk vaccine. The jury returned a verdict for the parents. 

The court of appeals found sufficient evidence to support the jury’s finding that the physician breached his duty to inform of the risk and alternatives, but a lack of evidence on causation (that a reasonable person so informed would have opted differently). In doing so, the court recognized “[t]he patient’s right to decide whether to obtain or to refuse medical treatment is a fundamental right protected by Article I, Section 5 of the 1974 Louisiana Constitution.” Id. at 429 (citing Hondroulis v. Schuhmacher, 553 So. 2d 398, 411 (La. 1988)).

In Ciko v. City of New Orleans, 427 So. 2d 80 (La. App. 4 Cir. 1983), the plaintiff sued the defendant for police brutality and failing to provide medical assistance. As to the medical assistance claim, the court found the police had no duty to provide care over the plaintiff’s refusal. “The police do not have the authority to force anyone, even those who are visibly injured, to receive medical treatment. Louisiana law gives all persons over the age of 18 the right to refuse medical treatment as to their own person.” Id. at 82. “An individual may choose to decline medical treatment for a variety of reasons. While the appellant in this case may have seemed disoriented this should not give the police the right or the duty to substitute their judgment for that of the injured person. To do so would violate the individual’s right to refuse treatment which is protected by law.” Id.   This reasoning applies with equal force to employers.

State v. Fisher, 93-0175 (La. App. 1 Cir. 11/24/93); 628 So. 2d 1136, writ denied, 637 So. 2d 474 (La. 1994), is also instructive. In that case, the court denied a motion in a criminal case to suppress evidence of cocaine discovered when the defendant’s stomach was pumped before his arrest. The court allowed the evidence, because the “defendant’s stomach was pumped as a result of the actions of the doctor and other hospital personnel, private persons who acted independently of law enforcement authorities.” Id. at 1140–4. Importantly, the court recognized that “a patient’s right to decide whether to obtain or refuse medical treatment is a fundamental right protected by the Louisiana Constitution.” Id.

Hondroulis remains good law and is widely considered the “seminal case” on Louisiana’s law of informed consent. See McDougal v. St. Francis N. Hosp., Inc., 48,955, p. 12 (La. App. 2 Cir. 4/9/14); 137 So. 3d 1233, 1240. See also, Dehart v. Jones, 19-789, p. 62 (La. App. 3 Cir. 12/16/20); 310 So. 3d 659, 694. 

Although the constitutional analysis by Hondroulis appears to have given way to the less problematic statutory right, there is no basis for disregarding the Court’s explicit holding that Louisiana’s constitutional right to privacy includes the affirmative right to refuse medical treatment. The Louisiana Supreme Court is the “final arbiter of the meaning of the state constitution and laws.” State v. Peart, 621 So. 2d 780, 790 (La. 1993) (quoting St. Paul Fire & Marine Ins. Co. v. Smith, 609 So. 2d 809, 822 (La. 1992) (Dennis, J., concurring)). Thus, the constitutional right recognized in Hondroulis stands, unless and until the Court says otherwise.

​ 2.​ The Statutory Right to Refuse Medical Treatment

The Louisiana Medical Consent Law, La. R.S. 40:1159.7, codifies the right to individual autonomy over health care decisions by expressly protecting the right to refuse treatment:

Right of adult to refuse treatment as to his own person not abridged

“Nothing contained herein shall be construed to abridge any right of a person eighteen years of age or over to refuse to consent to medical or surgical treatment as to his own person.”  ​

  This statutory right was recognized by the Supreme Court in Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La. 3/10/06); 923 So. 2d 627, 635-36, and Snider v. Louisiana Med. Mut. Ins. Co., 2013-0579 (La. 12/10/2013); 130 So. 3d 922. See also Nordgren v. State of Louisiana, No. 53,480 (La. App. 2nd Cir. 7/22/20); 300 So.3d 473, 479.  

​ At bottom, the statute accomplishes the same result by creating an affirmative right over personal medical decisions. The language “Nothing contained herein shall be construed to abridge” makes clear that the right is not limited to the physician-patient relationship; otherwise, the statute would serve no purpose. If the right does not otherwise exist, what is preserved?  As emphasized in Snider, “[t]he informed consent doctrine is based on the principle that every being of adult years and sound mind has a right to determine what shall be done to his or her own body.” 130 So. 3d 922, 930 (citing Hondroulis). This “principle” is the gravamen of both the R.S. 40:1159.7 and the Hondroulis interpretation of Article 1, § 5.  

This principle is also codified elsewhere. For instance, the Louisiana Advance Directives statute authorizes use of a do-not-resuscitate declaration in which the patient expresses his or her “legal right to refuse medical or surgical treatment and accept[s] the consequences of such refusal.” La. R.S. 40:1151.2. The Louisiana Military Advance Medical Directive includes the same language. See La. R.S. 40:1153.2. And the nursing home Residents’ Bill of Rights statute requires that all nursing homes publish a statement of affirmative rights for all residents, including “[t]he right to be adequately informed of his medical condition and proposed treatment; to participate in the planning of all medical treatment, including the right to refuse medication and treatment; and to be informed of the consequences of such actions.” La. R.S. 40:2010.8(6).

3. ​An Affirmative Right Means No State-Action Limitation or At-Will Defense

The Defendant argues that whatever the source and scope of the right to refuse medical treatment, such a right is not enforceable against a private at-will employer.  This issue turns on the difference between an “affirmative” right of the individual and a mere restriction on the authority of government, as explained in Hondroulis and its progeny.    

​ First and foremost, Article 1, § 5 expressly applies to everyone. See La. Const. art. 1, § 5 (“Every person shall …”). There is no support for the proposition that Hondroulis sought to exclude anyone from this right.  It would turn the Equal Protection Clause on its ear to hold that the Constitution itself somehow impliedly discriminates in the granting of affirmative rights. As noted in Moresi, that the right to refuse medical treatment is affirmative means it is enforceable against both public and private violators. 567 So. 2d at 1093 (the omission of the expression “no law shall” in Article 1, § 5 “indicat[es] that the protection goes beyond limiting state action.”). Simply put, there is no state-action defense to a violation of an affirmative right. It cannot be otherwise.

​ Defendant cites a line of cases involving other types of privacy claims, not the right to refuse medical treatment. For example, Brennan v. Bd. of Trustees for Univ. of La. Systems, 95-2396 (La. App. 1 Cir. 3/27/97); 691 So. 2d 324, 328, involved the right to privacy in a drug test and the right to due process; Guilbeaux v. Guilbeaux, 2008-17 (La. App. 3 Cir. 4/30/08); 981 So. 2d 913, involved a claim of stalking and harassment; Hennig v. Alltel Commc’ns, Inc., 05-96 (La. App. 5 Cir. 5/31/05); 903 So. 2d 1137, involved the disclosure of cell phone records; Haith v. City of Shreveport, No. 03-2128, 2005 WL 2140583 (W.D. La. Sept. 1, 2005), involved disclosure of a video tape; and Parks v. Terrebonne Par. Consol. Gov’t, 759 F. App’x 220 (5th Cir. 2019), involved a drug test. At most, these cases may support an argument that Article 1, § 5 does not extend to other types of privacy claims; that Hondroulis is limited to the right to refuse medical treatment. Perhaps, but Hondroulis is squarely on point to the issue before this Court. It is binding authority.

Second, the statutory right to refuse medical treatment likewise belongs to “every being of adult years and sound mind” as restated in Snider, 130 So. 3d at 930.  Every person means every person, not every person in the public sector.

​ Third, Defendant’s at-will employment defense fails for the same reason as the state-actor defense. The at-will doctrine does not grant a license to abridge protected rights. No employer—private or public—can threaten to fire an employee for exercising a protected right, or require an employee to forego the exercise of a protected right as a condition of employment. “An employee cannot be discharged in violation of statutory or constitutional provisions.” Page v. Grambling State Univ., 98-31240 (La. App. 2 Cir. 12/9/98); 722 So. 2d 329, 331. As explained in Quebedeaux v. Dow Chemical Co., 2001-2297 (La. 6/21/02); 820 So. 2d 542, the at-will doctrine “is tempered by numerous federal and state laws which proscribe certain reasons for dismissal of an at-will employee. For instance, an employee cannot be terminated because of his race, sex, or religious beliefs. Moreover, various state statutes prevent employers from discharging an employee for exercising certain statutory rights, such as the right to present workers’ compensation claims.” Id. at 545. This list of limitations must include the affirmative constitutional and statutory right to refuse medical treatment.

4.​ Defendant Has No Authority to Impose the Mandate

  Stripped of strained reliance on the at-will doctrine, Defendant cites no Louisiana authority supporting a vaccine mandate over the objection of employees. Cases from other states applying the laws of others states are not authoritative, particularly in the face of a controlling constitutional interpretation by the Louisiana Supreme Court and legislation squarely on point.

The closest Louisiana authority on vaccine mandates is a series of statutes providing for vaccination in certain situations, all of which recognize the ultimate right of the individual to decline treatment. For example, under La. R.S. 17:710, schools may require vaccination of students but must allow opt-outs based on “a written dissent from the student or his parent or guardian.” R.S. 17:710(E). Similarly, a special statute providing for immunization against meningococcal disease allows students and parents to opt-outs for “personal reasons.” La. R.S. 17:710.1(C)(1). And a statute requiring that hospitals vaccinate newborns for certain preventable diseases allows parents to simply decline. La. R.S. 40:2022. In sum, these statutes authorize the use of vaccines in limited circumstances, but only if the recipient agrees, thus respecting the fundamental right of individuals to make the ultimate decision.

The Defendant’s Mandatory Vaccine Plan openly and defiantly undermines Plaintiffs’ fundamental right to refuse medical treatment by expressly threatening “disciplinary action” against non-compliant workers. This overt threat destroys any argument that Defendant is merely offering a lawful “choice.” As stated by Justice Ginsburg, “discipline means punishment for misconduct; it rests on a finding of wrongdoing.” An employer cannot punish employees for exercising a protected right.

5.​ Defendant’s Broad Mandate is Facially Unreasonable

Article 1, § 5 guards against “unreasonable searches, seizures, or invasions of privacy.”  Thus, “[t]he reasonableness of any intrusion on an individual’s privacy depends on a balance between the public interest and the individuals right[.]” State v. Surtain, 2009-1835 (La. 3/15/10); 31 So.3d 1037, 1043.  See also, Gannett River States Publishing d/b/a The Times v. Hussey, 557 So.2d 1154, 1157-58 (La. App. 2nd Cir. 1990).  

Plaintiffs plainly allege that Defendants’ mandatory vaccination policy is unreasonable in its objective and scope based on legitimate questions about the waning efficacy of vaccines, the potential risks, the durability of natural immunity, the inability to prevent transmission by vaccination, and the lack of rationale for vaccinating all workers (including remote employees and those who have already recovered from the disease), as opposed to a more targeted group.  

Above all else, the unreasonableness of the mandate is demonstrated by the lack of an alternative for testing.  As alleged in the Petition at Paragraph 38, “testing of employees is a far more effective, and less intrusive, means of protecting the workplace. If the objective is to protect patients and staff from exposure to infection, why not simply require testing and bar infected persons from the hospital during quarantine?”

Even the much-anticipated “federal mandate” directed by President Biden will allow for weekly testing as an alternative to mandatory vaccination, as reported today.  

C.​ Plaintiffs Jason Hayes, Nicoletta Hayes, and Brian Martin Have a Right of Action

​ Defendant argues that these Plaintiffs have no right of action because they are not employees of Ochsner.  This argument disregards the allegations of the Petition and the scope of Ochsner’s Mandatory Vaccination Plan.  

First, in Paragraph 1 of the Petition, Plaintiffs alleges: “Plaintiffs are the following employees, staff, and contract workers of University Health Shreveport, LLC D/B/A Ochsner LSU Health …”   These Plaintiffs are contract workers of the hospital.  

Second, according to Defendant, its Mandatory Vaccination Plan applies to “all physicians, APPs and all employees, vendors, contracted staff” and others.  See Petition at paragraph 33.  

D.​ Plaintiffs Request for an Injunction is Ripe for Adjudication

Defendant’s claim of prematurity is misplaced under these circumstances, where Plaintiffs seek to enjoin Defendant’s enforcement of an unlawful policy that threatens fundamental rights. Furthermore, the request for a declaratory judgment is unquestionably timely. Davis v. Town of St. Gabriel, 2001-0031, p. 8 (La.App. 1 Cir. 2/15/02); 809 So.2d 537, 542, writ denied, 2002-0771 (La. 10/14/02); 827 So.2d 420, and writ denied, 2002-0803 (La. 10/14/02); 827 So.2d 420 (overruling exception of prematurity that turned on whether a building permit was unlawful).

“The dilatory exception of prematurity provided in La.Code Civ. Proc. art. 926 questions whether the cause of action has matured to the point where it is ripe for judicial determination, because an action will be deemed premature when it is brought before the right to enforce it has accrued.”  LaCoste v. Pendleton Methodist Hosp., L.L.C., 2007-0008, p. 5 (La. 9/5/07); 966 So.2d 519, 523.  

The right here has clearly accrued.  The test is whether Plaintiff will suffer irreparable harm in the absence of an injunction.   Forcing Plaintiffs to wait until they are fired will render an injunction moot.  To be clear, Plaintiffs seek injunctive relief to prevent irreparable harm threatened by Defendant, not to prevent potential economic harm.  

E.​ Conclusion

​ For the reasons set forth in Plaintiffs Verified Petition and herein, Plaintiffs respectfully request that the Court overrule Defendant’s Exceptions of No Cause of Action, No Right of Action and Prematurity.  

Respectfully submitted,

Faircloth Melton Sobel 

& Bash, LLC