Troogstad v. City of Chicago

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SCOTT TROOGSTAD et al., )

)

Plaintiffs, )

) No. 21 C 5600

v. )

) Judge John Z. Lee

THE CITY OF CHICAGO and )

GOVERNOR JAY )

ROBERT PRITZKER, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Various employees of the City of Chicago have filed this case to challenge

Governor J.B. Pritzker’s Executive Order 2021-22 as well as the City’s mandatory

vaccination policy. Along with the complaint, Plaintiffs filed a motion for a temporary

restraining order. The Court denied that motion on October 29, 2021. This

Memorandum Opinion and Order memorializes that ruling.

I. Factual Background

In response to the ongoing COVID-19 pandemic and the rise of the significantly

more transmissible Delta variant of the virus, Illinois Governor J.B. Pritzker signed

Executive Order 2021-22 (“EO 2021-22”) on September 3, 2021. EO 2021-22

mandates that all health care workers1 be fully vaccinated2 against COVID-19 or

submit to weekly COVID-19 testing by September 19, 2021. Def. Gov. J.B. Pritzker’s

Resp. Opp’n Pls.’ Pet. TRO (“Def. J.B. Pritzker’s Resp.”) Ex. A (EO 2021-22) § 2(a)(i),

ECF No. 14. The order provides exemptions to the vaccination requirement for

persons for whom vaccination is “medically contraindicated” and for whom

vaccination would require violating “a sincerely held religious belief, practice, or

observance.” Id. § 2(e). Persons who qualify for either exemption must submit to

weekly testing. Id.

Following Governor Pritzker’s order, the City of Chicago announced its own

mandatory vaccination policy (“City Vaccination Policy”). Unlike EO 2021-22, the

1 EO 2021-22 defines “Health Care Worker” as

any person who (1) is employed by, volunteers for, or is

contracted to provide services for a Health Care Facility, or is

employed by an entity that is contracted to provide services to a

Health Care Facility, and (2) is in close contact (fewer than 6

feet) with other persons in the facility for more than 15 minutes

at least once a week on a regular basis as determined by the

Health Care Facility.

EO 2021-22 § 2(a)(i). (Sept. 3, 2021). It defines “Health Care Facility” as

any institution, building, or agency, or portion of an institution,

building or agency, whether public or private (for-profit or

nonprofit), that is used, operated or designed to provide health

services, medical treatment or nursing, or rehabilitative or

preventive care to any person or persons.

Id. § 2(a)(ii). EO 2021-22 also implements vaccination mandates for primary and secondary

school teachers and personnel; higher education teachers, personnel, and students; and

employees at “State-owned or operated congregate facilities.” Id. §§ 3–5.

2 Specifically, EO 2021-22 mandates that all covered persons “have, at a minimum, the

first dose of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine by

September 19, 2021, and the second dose of a two-dose COVID-19 vaccine series within 30

days following administration of their first dose in a two-dose vaccination series.” Id. § 2(a)(i).

City’s vaccine mandate covers all City employees, see Def. City of Chicago’s Resp. Pls.’

Emergency Pet. TRO (“Def. City’s Resp.”), Ex. B1 (City Vaccination Policy) § II, ECF

No. 18, requiring them either to be fully vaccinated by October 15, 2021, or submit to

biweekly COVID-19 testing. Id. § IV.A–B. And unlike EO 2021-22, the City

Vaccination Policy contains a sunset provision that ends the option to submit to

biweekly testing as an alternative to vaccination on December 31, 2021. Id. After

that date, full vaccination (or an approved medical or religious exemption) will

become a “condition of employment.” Id. § IV.B.

Plaintiffs are employees of the City of Chicago who work for the City’s Fire,

Water, and Transportation Departments. See Compl. ¶¶ 5–139, ECF No. 1. Some

Plaintiffs allege that they have already contracted COVID-19, while others do not

believe they have had the virus. See id. Forty-five Plaintiffs have applied for a

religious exemption from the City Vaccination Policy. See Def. City’s Resp., Ex. B,

Owen Decl. ¶ 13. Five of these exemptions have been denied, and the rest are still

pending as of the date of the October 29, 2021 hearing. Id.

Plaintiffs oppose EO 2021-22 and the City Vaccination Policy because they

believe requiring vaccination and testing as a condition of continued employment

violates their constitutional rights and Illinois law. They bring claims against both

Governor Pritzker and the City, alleging that EO 2021-22 and the City Vaccination

Policy violate their substantive due process, procedural due process, and free exercise

rights. Plaintiffs also bring claims against both Defendants under the Illinois

Healthcare Right of Conscience Act, 745 Ill. Comp. Stat. 70/1 et seq.

To prevent the orders from taking effect, Plaintiffs seek a temporary

restraining order that:

1. Enjoins the Governor from enforcing EO 2021-22’s requirement that all

health care workers, firefighters, EMTs, and paramedics be fully vaccinated

against COVID-19, until the Court rules on their motion for a preliminary

injunction or for the duration of the lawsuit;

2. Enjoins the City of Chicago from enforcing the City Vaccination Policy,

which requires all City employees to be vaccinated against COVID-19 or

submit to biweekly testing, and will require vaccination as a condition of

employment, until the Court rules on their motion for a preliminary

injunction or for the duration of the lawsuit; and

3. Enjoins the Governor and the City from terminating or taking disciplinary

action against employees who refuse to be vaccinated or submit to COVID-

19 testing, until the Court rules on their motion for a preliminary injunction

or for the duration of the lawsuit.

II. Legal Standard

As the Seventh Circuit has stated repeatedly, a temporary restraining order or

a preliminary injunction is “an exercise of a very far-reaching power, never to be

indulged in except in a case clearly demanding it.” Orr v. Shicker, 953 F.3d 490, 501

(7th Cir. 2020) (quoting Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of

Am., Inc., 549 F.3d 1079, 1085 (7th Cir. 2008)). And to obtain such drastic relief, the

party seeking the relief—here, the Plaintiffs—carries the burden of persuasion by a

clear showing. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).

When considering a motion for temporary restraining order, the Court must

employ the same test as a request for a preliminary injunction: the plaintiff has the

burden to show (1) a likelihood of success on the merits; (2) irreparable harm; and (3)

that the balance of the equities and the public interest favors emergency relief. Fed.

R. Civ. P. 65(b)(1)(A); see Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008).

The Court then weighs these factors in what the Seventh Circuit has called a

“sliding scale” approach. That is, “[t]he more likely the plaintiff is to win, the less

heavily need the balance of harms weigh in his favor; the less likely he is to win, the

more need it weigh in his favor.” Valencia v. City of Springfield, 883 F.3d 959, 966

(7th Cir. 2018) (internal quotation marks omitted). And “[w]here appropriate, this

balancing process should also encompass any effects that granting or denying the

preliminary injunction would have on nonparties (something courts have termed the

‘public interest’).” Id.

Additionally, the Court notes that its ruling is based upon the factual record

currently before it on October 29, 2021. The complaint and motion were filed on

October 21, 2021. The responses were filed on October 25, 2021, and Plaintiffs’ reply

brief was filed on October 28, 2021. Neither side has had an opportunity for discovery

regarding the various factual and scientific contentions raised in the parties’ briefs,

and a more fulsome factual record may shed additional light on some of the

arguments raised in the case.

Furthermore, the Court notes that Plaintiffs’ motion papers do not precisely

define the scope of the right to bodily integrity upon which they rely. Most often,

Plaintiffs rely on a right to be free from having to take vaccines. At others, Plaintiffs

appear to object to being forced to perform self-administered COVID tests as part of

one’s employment. The Court focuses here on the first, because that is where the

parties aim most of their arguments, but the Court believes its rationale disposes of

the second as well.3

III. Analysis

I. Likelihood of Success on the Merits

The first factor— “likelihood of success on the merits”—requires the plaintiff

to make a “strong showing that she is likely to succeed on the merits” of her claim; a

mere “possibility of success is not enough” to warrant emergency relief. Ill.

Republican Party v. Pritzker, 973 F.3d 760, 762 (7th Cir. 2020). This showing “does

not mean proof by a preponderance,” but requires the plaintiff to provide facts and

legal theories supporting “the key elements of its case.” Id. at 763. The Court will

address each of Plaintiffs’ claims in turn.

A. Substantive Due Process Claim

Plaintiffs first allege that EO 2021-22 and the City Vaccination Policy violate

substantive due process. A substantive due process claim requires the plaintiff to

“allege that the government violated a fundamental right or liberty.” Campos v. Cook

Cnty., 932 F.3d 972, 975 (7th Cir. 2019). The violation must also be “arbitrary or

irrational,” because “substantive due process protects against only the most egregious

and outrageous government action.” Id.

According to Plaintiffs, requiring them to be vaccinated and submit to regular

testing as a condition of employment infringes their fundamental right to bodily

3 During the last hearing, Plaintiffs’ counsel also talked about the right to be free from

having to disclose one’s medical information to one’s employer. But this is nowhere to be

found in Plaintiffs’ pleadings or motion papers, and so the Court does not consider it to be

raised in this motion.

autonomy. More specifically, Plaintiffs argue that the vaccination and testing

requirements violate the fundamental right to refuse unwanted medical treatment

as articulated in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261

(1990) and Washington v. Harper, 495 U.S. 210 (1990). From this, they assert that,

because they have identified a fundamental right at stake, the Supreme Court’s

decisions in Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), require the Court to apply

strict scrutiny to the vaccination orders. Plaintiffs’ substantive due process argument

is not likely to succeed on the merits for several reasons.

1. The Seventh Circuit’s Klaassen decision

As an initial matter, Plaintiffs’ argument that the Defendants’ vaccine orders

infringe their fundamental right to bodily autonomy runs squarely in the face of the

Seventh Circuit’s recent decision in Klaassen v. Trustees of Indiana University, 7

F.4th 592 (7th Cir. 2021). There, the Seventh Circuit upheld Indiana University’s

recent vaccination, masking, and testing requirements against a challenge from a

group of students, who asserted nearly identical substantive due process claims. See

id. at 593; Klaassen v. Trs. of Ind. Univ., __ F. Supp. 3d __, 2021 WL 3073926, at *22

(N.D. Ind. July 18, 2021) (“The students assert a right to refuse the vaccine, saying

the mandate infringes on their bodily autonomy and medical privacy.”). The

students, like Plaintiffs here, argued that the vaccine requirement comprised an

invasion of bodily privacy that merited strict scrutiny. Klaassen, 2021 WL 3073926,

at *17.

The Seventh Circuit in Klaassen soundly rejected that argument. It instructed

that the Supreme Court’s decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905),

“shows that plaintiffs lack” a substantive due process right not to be vaccinated

against COVID-19. Klaassen, 7 F.4th at 593. The court further noted that the

University’s testing requirements “cannot be constitutionally problematic”

considering the sweeping vaccine mandates that Jacobson authorized. Id.

Plaintiffs’ attempts to distinguish Klaassen are unconvincing. Plaintiffs first

assert that Klaassen is outdated because the pandemic is less severe now than it was

when the case was decided and because “Klaassen . . . does not address the newest

information . . . about vaccine efficacy, or the superiority of natural immunity to

vaccine immunity.” See Pls.’ Reply Supp. Prelim. Inj. (“Pls.’ Reply”) at 10, ECF No.

25. But the severity of the pandemic at Indiana University did not materially factor

into the Seventh Circuit’s analysis, and the Court is not convinced that Klaassen

would have come out differently had COVID-19 cases been at current levels. Indeed,

other courts to consider the same question in more recent weeks have come to the

same conclusion. See, e.g., We The Patriots USA, Inc. v. Hochul, __ F.4th __, 2021 WL

5121983, at *18 (2d Cir. Nov. 4, 2021).

Furthermore, the questions Plaintiffs raise about the efficacy of vaccines as

compared to natural immunity do not persuade the Court that Defendants’ policies

lack a rational basis. Nor does the Court believe the comparative efficiencies of

vaccine immunity versus natural immunity (at least, as depicted on this record)

would have altered the Seventh Circuit’s holding.

Plaintiffs next argue that Klaassen, which addressed a vaccination

requirement for university students, ought not apply to vaccination requirements for

public employees because “the determination to terminate or not to renew a public

employment contract cannot be premised upon the employee’s protected activities.”

Pls.’ Reply at 12 (quoting Perry v. Sindermann, 408 U.S. 593 (1972)). But this

argument misinterprets Klaassen. Klaassen did not hold that Jacobson permitted

the university to violate the fundamental right of students not to be vaccinated.

Instead, Klaassen held that no such substantive due process right exists in the first

instance. See Klaassen, 7 F.4th at 593 (noting that the students’ “argument depends

on the existence of a fundamental right ingrained in the American legal tradition.

Yet Jacobson . . . shows that plaintiffs lack such a right.”).

Plaintiffs alternatively argue that Jacobson, which figured heavily in

Klaassen’s analysis, should not guide the Court’s due process analysis because “it is

part of a bygone era in American jurisprudence” akin to the Supreme Court’s

discredited decisions in Buck v. Bell, 274 U.S 200 (1927), and Korematsu v. United

States, 323 U.S. 214 (1944). Pls.’ Mot. TRO (“TRO Mot.”) at 5, ECF No. 4. But the

Supreme Court has given no indication that Jacobson is void, and this Court cannot

ignore binding precedent simply because Plaintiffs find it to be antiquated. Indeed,

just this past year, Chief Justice Roberts cited favorably to Jacobson. See S. Bay

United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (mem.) (Roberts,

C.J., concurring in denial of application for injunctive relief). What is more, the

Seventh Circuit has cited Jacobson numerous times throughout the course of the

pandemic as a yardstick for evaluating constitutional challenges to governmental

responses to COVID-19. See Democratic Nat’l Comm. v. Bostelmann, 977 F.3d 639,

643 (7th Cir. 2020) (citing Jacobson for the proposition that “[d]eciding how best to

cope with difficulties caused by disease is principally a task for the elected

branches of government”); Ill. Republican Party, 973 F.3d at 763 (“The district court

appropriately looked to Jacobson for guidance, and so do we.”); Elim Romanian

Pentecostal Church v. Pritzker, 962 F.3d 341, 347 (7th Cir. 2020) (citing Jacobson,

197 U.S. 11).4

2. Whether a Fundamental Right Exists

But, even if the Seventh Circuit’s decision in Klaassen did not command this

result, the Court concludes that Plaintiffs have not shown that the vaccine and

testing orders in question implicate their fundamental right to bodily autonomy.

Plaintiffs’ reliance upon the Supreme Court’s right-to-privacy cases does not

support their claim that Defendants’ policies infringe a fundamental right. As

Defendants point out, the issues at stake in Roe, Casey, Cruzan, and Harper were

“rights to individual bodily autonomy [that] do not impact the public health.” Def.

J.B. Pritzker’s Resp. at 19. When an individual’s behavior directly affects the health

4 Numerous other circuit courts and district courts across the country have done the

same. See, e.g., We The Patriots, 2021 WL 5121983, at *15, *18 & *18 n.35 (“Jacobson is still

binding precedent.” Id. at *18 n.35); Big Tyme Invs., L.L.C. v. Edwards, 985 F.3d 456, 466–

68 (5th Cir. 2021); Robinson v. Att’y Gen., 957 F.3d 1171, 1179, 1182 (11th Cir. 2020); 7020

Ent., LLC v. Miami-Dade Cnty., 519 F. Supp. 3d 1094, 1105 (S.D. Fla. 2021); Tandon v.

Newsom, 517 F. Supp. 3d 922, 949 (N.D. Cal. 2021); Mass. Corr. Officers Federated Union v.

Baker, __ F. Supp. 3d __, 2021 WL 4822154, at *6 (D. Mass. Oct. 15, 2021) (applying Jacobson

to reject plaintiffs’ substantive due process challenges to a similar vaccine mandate for

Massachusetts state employees).

and welfare of others in the community, she cannot rely on the Supreme Court’s

longstanding protection of “intimate and personal choices,” Casey, 505 U.S. at 851, to

the utter exclusion of all other interests. See Cassell v. Snyders, 990 F.3d 539, 550

(7th Cir. 2021) (noting that while “[a] person's ability to make private choices

affecting his or her own body and health is fundamental to the concept of individual

liberty that our Constitution protects,” plaintiffs who challenged capacity limits on

religious services during the peak of the pandemic “[were] not asking to be allowed to

make a self-contained choice to risk only their own health”); see also We The Patriots,

2021 WL 5121983, at *18 n.35 (rejecting plaintiffs’ comparisons between refusing

vaccination and the decisions in Roe and Casey because “[t]hese cases do not establish

a broad fundamental privacy right for all medical decisions made by an individual—

and particularly not for a decision with such broad community consequences as

declining vaccination against a highly contagious disease”).

The core flaw with Plaintiffs’ claim that refusing vaccination is a fundamental

right, then, is not that there is no privacy interest implicated when someone is

required or coerced to take a vaccine that they do not want. There certainly is.

Rather, the problem is that, when a person’s decision to refuse a vaccine creates

negative consequences (even life-threatening at times) for other people, that interest

is not absolute. See We the Patriots, 2021 WL 5121983, at *18. As Jacobson

demonstrated, and numerous cases over the course of the pandemic have reiterated,

the right Plaintiffs assert here is limited by “reasonable conditions . . . essential to

the safety, health, [and] peace” of the public. Jacobson, 197 U.S. at 26; see, e.g., We

the Patriots, 2021 WL 5121983, at *18 n.35 (“[T]he the urgent public health needs of

the community can outweigh the rights of an individual to refuse vaccination.”).

Because the exigencies of the current pandemic justify the degree of intrusion at issue

here, Plaintiffs have not demonstrated that Defendants’ vaccine and testing policies

infringe a fundamental constitutional right.

3. Rational Basis Review

Even though Plaintiffs have not shown that Defendants’ vaccine policies

infringe a fundamental constitutional right, the Court finds that Plaintiffs have

shown (or are likely to show) that these policies do abridge an individual’s right to

liberty and bodily autonomy to a greater than de minimis degree, and the Court will

apply rational basis review to their substantive due process claims as the district

court did in Klaassen. 2021 WL 3073926, at *22; see Brown v. City of Mich. City, 462

F.3d 720, 733 (7th Cir. 2006); Lee v. City of Chi., 330 F.3d 456, 466 (7th Cir. 2003).

In doing so, the Court keeps in mind that rational basis review is “highly deferential,”

and to find that a government action lacks a rational basis in this context, a court

must find the action “utterly lacking in rational justification.” Brown, 462 F.3d at 733

(quoting Turner v. Glickman, 207 F.3d 419, 426 (7th Cir. 2000)).

On the present record, Defendants have demonstrated that their vaccination

policies have a rational justification. Defendants have submitted a substantial

amount of evidence supporting the public health necessity of vaccination and testing

in abating the ongoing COVID-19 pandemic. For example, Defendants cite to the

findings of the Centers for Disease Control and Prevention (“CDC”) that

“recommend[] that everyone aged 12 years and older gets vaccinated as soon as

possible” and maintain that “vaccines are playing a crucial role in limiting spread of

the virus and minimizing severe disease.”5 And Defendants cite numerous peer-

reviewed studies bolstering their claims that widespread vaccination is effective at

reducing the spread of COVID-19.6

Defendants also submitted declarations from government health professionals,

attesting that widespread vaccination and testing are instrumental in reducing the

severity of the COVID-19 pandemic. See, e.g., Def. J.B. Pritzker’s Resp., Ex. A,

Bleasdale Decl. ¶ 59; Def. City’s Resp., Ex. A, Arwady Decl. ¶¶ 18–22, ECF No. 18-1.

These officials, who helped to create and administer the challenged policies, include

Dr. Allison Arwady, Chief Medical Officer of the Chicago Department of Public

Health; Christopher Owen, Commissioner of Human Resources for the City of

Chicago; and Dr. Arti Barnes, Medical Director and Chief Medical Officer of the

Illinois Department of Public Health. See generally Arwady Decl.; Owen Decl.; Def.

J.B. Pritzker’s Resp., Ex. B, Barnes Decl. The declarations have presented the

scientific rationale behind the vaccine and testing orders at issue, and the Court finds

5 Delta Variant: What We Know About the Science, CDC (August 26, 2021)

https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html?s_cid=11504:is%20

there%20a%20vaccine%20for%20delta%20variant:sem.ga:p; see generally, e.g., Rates of

COVID-19 Cases and Deaths by Vaccination Status, CDC, https://covid.cdc.gov/covid-data-

tracker/#rates-by-vaccine-status (last visited November 13, 2021).

6 See, e.g., Jamie L. Bernal et al., Effectiveness of Covid-19 Vaccines Against the

B.1.617.2 (Delta) Variant, 385 N. ENG. J. MED. 585 (2021) https://www.nejm.org/doi

/full/10.1056/nejmoa2108891; Ashley Fowlkes et al., Effectiveness of COVID-19 Vaccines in

Preventing SARS-CoV-2 Infection Among Frontline Workers Before and During B.1.617.2

(Delta) Variant Predominance — Eight U.S. Locations, December 2020–August 2021, 70

MORBIDITY AND MORTALITY WKLY. REP. 1167 (2021) https://www.ncbi.nlm.nih.gov/

pmc/articles/PMC8389394.

that their statements are credible and provide ample rational justification for the

policies.

For example, Dr. Arwady notes that City employees are “approximately twice

as likely” to be infected with COVID-19 than residents of Chicago as a whole. Arwady

Decl. ¶ 10. She explains that the job duties of City employees often require them to

be in close contact with the public in unpredictable situations where the COVID-19

exposure status or vaccination status of the resident is not known. Id. ¶ 13. Thus,

“developing immunity in all employees who have contact with each other and

members of the public” is a key component of the City’s strategy to reduce the spread

of COVID-19. Id. ¶ 11. Furthermore, Dr. Bleasdale explains that vaccines provide a

high degree of protection against both contracting COVID-19, see Bleasdale Decl. ¶¶

34–37, and—as suggested by preliminary research—transmitting the virus to others.

Id. ¶ 42. She therefore concludes that mandating vaccination or weekly testing for

healthcare workers, who frequently meet populations especially vulnerable to

COVID-19, will help prevent “an increase in sickness and quite possibly death” in the

state resulting from the significantly more transmissible Delta variant. Id. ¶ 44; see

id. ¶¶ 25–32.

In response, Plaintiffs argue that Defendants’ vaccination policies have no

rational basis, because there is evidence that “natural immunity” against COVID-19

is more effective than vaccine-created immunity in preventing transmission. And to

support this contention, Plaintiffs rely upon two academic sources. The first is a

study that, while showing that prior infection from COVID-19 results in some degree

of immunity, does not compare natural immunity with vaccine-created immunity.7

The second is an unpublished, non-peer reviewed study conducted in Israel in

January and February 2021,8 to which Defendants have raised serious questions

regarding its methodological rigor and reliability. See Bleasdale Decl. ¶¶ 46–52;

Barnes Decl. ¶ 32. This is the sum total of Plaintiff’s evidence.

When the Court weighs the slim evidence presented by Plaintiffs against the

substantial evidence presented by Defendants (particularly the declarations by the

medical professionals), the Court finds on this record that Plaintiffs have not met

their burden to show that EO 2021-22 and the City Vaccination Policy are “arbitrary

or irrational,” Campos, 932 F.3d at 975, or “utterly lacking in rational justification,”

Brown, 462 F.3d at 733.

That said, even if there were robust scientific debate about whether natural

immunity is more effective than vaccine-created immunity in preventing the

contraction and transmission of COVID-19 (as Plaintiffs contend), this still would not

be enough for Plaintiffs to prevail. For a government regulation to have a rational

basis, the state need not prove the premises upon which it based the action to a degree

of scientific certainty. Rather, the government need only show that its rationale is

supported by a “reasonably conceivable state of facts.” Minerva Dairy, Inc. v.

7 See Jennifer M. Dan et al., Immunological Memory to SARS-CoV-2 Assessed for up to

8 Months After Infection, SCIENCE (Jan. 6, 2021) https://www.ncbi.nlm.nih.gov/pmc/articles/

PMC7919858/pdf/abf4063.pdf.

8 See Sivan Gazit et al., Comparing SARS-CoV-2 Natural Immunity to Vaccine-Induced

Immunity: Reinfections Versus Breakthrough Infections (August 25, 2021) (unpublished

manuscript) https://www.medrxiv.org/content/10.1101/2021.08.24.21262415v1.full.pdf

Harsdorf, 905 F.3d 1047, 1053 (7th Cir. 2018) (quoting Ind. Petroleum Marketers &

Convenience Store Ass’n v. Cook, 808 F.3d 318 (7th Cir. 2013)). This is a low bar. See

id.; Monarch Beverage Co., Inc. v. Cook, 861 F.3d 678, 683 (7th Cir. 2017) (noting that

under rational basis review, the government’s “proffered rationale for the law . . . can

be ‘based on rational speculation unsupported by evidence or empirical data’”

(quoting F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993))). And, in relying

on federal and state public health recommendations, credible academic sources, and

the expertise of its own health officials, Defendants have met this burden, even if

there might be some scientific disagreement on the issue. See Vasquez v. Foxx, 895

F.3d 515, 525 (7th Cir. 2018) (rejecting argument that sex-offender registration policy

lacked a rational basis because “scant evidence” supported it, since “[the Court’s] role

is not to second-guess the legislative policy judgment by parsing the latest academic

studies on sex-offender recidivism”).

Numerous courts have come to the same conclusion for substantially similar

reasons. See Does 1-6 v. Mills, 16 F.4th 20, 32 (1st Cir. 2021) (a state vaccine mandate

“easily” passed rational basis review), application for injunctive relief denied sub nom.

Does 1-3 v. Mills, __ S. Ct. __, 2021 WL 502177 (mem.) (Oct. 29, 2021); We The

Patriots, 2021 WL 5121983, at *15 (same); Norris v. Stanley, __ F. Supp. 3d __, 2021

WL 4738827, at *3–4 (W.D. Mich. Oct. 8, 2021) (holding that, in response to a similar

argument that Michigan State University failed to consider natural immunity in

imposing a vaccine mandate, “even if there is vigorous ongoing discussion about

the effectiveness of natural immunity, it is rational for MSU to rely on present federal

and state guidance in creating its vaccine mandate,” id. at *3); Kheriaty v. Regents of

Univ. of Cal., No. SACV 21-01367 JVS (KESx), 2021 WL 4714664, at *8 (C.D. Cal.

Sept. 29, 2021) (rejecting claim that university’s choice not to exempt previously

infected students from vaccine mandate lacked a rational basis because “merely

drawing different conclusions based on consideration of scientific evidence does not

render the Vaccine Policy arbitrary and irrational”).

Because Plaintiffs cannot show that Defendants’ vaccination policies infringe

a fundamental constitutional right and cannot show that Defendants’ policies lack a

rational basis, the Court finds that Plaintiffs are unlikely to succeed on the merits of

their substantive due process claim.

B. Procedural Due Process Claim

Plaintiffs next claim that EO 2021-22 and the City Vaccination Policy violate

procedural due process. A procedural due process claim requires the plaintiff to show

that the government deprived them of a protected interest with “constitutionally

deficient procedural protections” surrounding the deprivation. Tucker v. City of Chi.,

907 F.3d 487, 491 (7th Cir. 2018). Plaintiffs are unlikely to succeed here as well.

1. Procedural Due Process Claim Against the City

Plaintiffs raise two procedural due process arguments against the City. First,

they argue that the City Vaccination Policy violates procedural due process because

Chicago Mayor Lori Lightfoot exceeded her authority by imposing the policy

“unilaterally” without the approval of the city council. TRO Mot. at 11. The problem

with Plaintiffs’ first argument is that the Chicago Municipal Code does authorize the

Mayor to enact policies through an “administrative officer, subject to the direction

and control of the mayor, . . . [to] supervise the administrative management of all city

departments, boards, commissioners and other city agencies,” and to “supervise the

conduct of all of the officers of the city.” Chi. Mun. Code 2-4-020. By their plain

language, these provisions grant the Mayor broad policymaking discretion over City

employees.

Additionally, even if Mayor Lightfoot’s implementation of the City Vaccination

Policy did comprise a traditionally legislative function, this would not raise any

constitutional concerns. At its core, Plaintiffs’ argument relies on a strict separation-

of-powers theory that is not applicable to local governments. See Auriemma v. Rice,

957 F.2d 397, 399 (7th Cir. 1992) (noting that in the context of local government,

“[e]xecutive officials sometimes exercise legislative powers . . . [and] executive

officials may have the power to set policy . . . when the legislature is silent.”); see also

Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial

Function, 114 Harv. L. Rev. 1833, 1884 (2001) (“[L]ocal governments are . . . not

required to conform to federal-style separation of powers and, for the most part, do

not.”).

Accordingly, the Court cannot say on this record that Mayor Lightfoot’s actions

in announcing the City Vaccination Policy were ultra vires. Furthermore, the Court

takes judicial notice of the fact that, on the same day as the TRO hearing, the City

Council voted to keep the City Vaccination Policy in place, removing one of the core

bases of Plaintiffs’ argument.9

Plaintiffs’ second argument asserts that the policy violates Plaintiffs’ due

process rights, because it “fundamentally changes the nature of Plaintiffs’ contracts

with . . . the City.” TRO Mot. at 11. This argument too is unpersuasive, for two

primary reasons.

First, the mere alteration of an employment contract, standing alone, does not

violate procedural due process. Plaintiffs must identify some liberty or property

interest of which they are being deprived in order to make out a procedural due

process claim. See Hannemann v. S. Door Cnty. Sch. Dist., 673 F.3d 746, 752 (7th

Cir. 2012); Brown, 462 F.3d at 728. To the extent that Plaintiffs argue that the

vaccination policy deprives them of their ability to work for the City without being

vaccinated, this deprivation is not a violation of procedural due process, because (as

the Seventh Circuit has held) Plaintiffs do not have a liberty or property interest in

not being vaccinated. See Klaassen, 7 F.4th at 593; see also, e.g., We The Patriots,

2021 WL 5121983, at *18.

Second, many of Plaintiffs’ employment contracts are governed by collective

bargaining agreements between the City and public employee unions. Thus, any

alleged procedural deficiency in the alteration of Plaintiffs’ employment contracts is

properly aggrieved under Illinois labor law. Moreover, grievance procedures in

9 See Chicago City Council Turns Down Attempt to Repeal Vaccine Mandate, NBC CHI.

(Oct. 29, 2021 5:42 PM) https://www.nbcchicago.com/news/local/chicago-city-council-turns-

down-attempt-to-repeal-vaccine-mandate/2662116/.

collective bargaining agreements “can (and typically do) satisfy” the requirements of

procedural due process for terminated public employees. Calderone v. City of Chi.,

979 F.3d 1156, 1166 (7th Cir. 2020) (quoting Chaney v. Suburban Bus Div. of Reg’l

Transp. Auth., 52 F.3d 623, 630 (7th Cir. 1995)). Plaintiffs have not garnered any

evidence to the contrary.

2. Procedural Due Process Claim Against the Governor

As for EO 2021-22, Plaintiffs first assert that Governor Pritzker violated their

procedural due process rights by exceeding the limitations on his emergency powers

under the Illinois Emergency Management Agency Act (“EMAA”), 20 Ill. Comp. Stat.

3305/1 et seq. They claim that because “the Governor’s power is not unlimited [and]

. . . [t]he legislature has remained silent on the subject of vaccine mandates,” EO

2021-22 “violates Plaintiffs’ rights under the US Constitution and under Illinois law.”

TRO Mot. at 11. For several reasons, this procedural due process claim against the

Governor is not viable.

First, Plaintiffs’ procedural due process claim is likely barred by the Eleventh

Amendment, under which “absent waiver or valid abrogation, federal courts may not

entertain a private person's suit against a State.” Va. Office for Prot. and Advocacy v.

Stewart, 563 U.S. 247, 254 (2011); see Cassell v. Snyders, 458 F. Supp. 3d 981, 999

(N.D. Ill. 2020), aff’d, 990 F.3d 539 (7th Cir. 2021). In Cassell, a church and its pastor

sued the Governor and other Illinois state officials to enjoin the state’s stay-at-home

orders that placed capacity limitations on religious services. See 458 F. Supp. 3d at

987. The Cassell plaintiffs alleged the state officials violated, inter alia, the state

statutory limitations of the EMAA on the Governor’s emergency powers. See id. This

Court denied the injunction as to the EMAA claim because the Governor and state

officials had properly raised sovereign immunity. Id. at 999.

Like the plaintiffs in Cassell, Plaintiffs here are suing the Governor for alleged

violations of the EMAA, and the Governor has invoked sovereign immunity. Because

“a claim that [a] state official[] violated state law in carrying out [his] official

responsibilities” is “a claim against the State that is protected by the Eleventh

Amendment,” the Eleventh Amendment precludes Plaintiff’s procedural due process

claim against the Governor. Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S.

89, 101, 121 (1984); see Cassell, 458 F. Supp. 3d at 999.

Furthermore, setting aside Eleventh Amendment concerns, Plaintiffs cannot

bring a federal procedural due process claim to compel state officials to follow state

law because “there is no federal constitutional right to state-mandated procedures.”

GEFT Outdoors, LLC v. City of Westfield, 922 F.3d 357, 366 (7th Cir. 2019), cert

denied, 140 S. Ct. 268 (2019); see also Charleston v. Bd. of Trs. of Univ. of Ill. at Chi.,

741 F.3d 769, 773 (7th Cir. 2013). A state’s decision not to follow its own procedural

rules may create a cause of action under state law, but it does not violate federal due

process protections. See Charleston, 741 F.3d at 773. Put simply, any grievances

Plaintiffs may have with the way Governor Pritzker did or did not follow state law

should be raised in the state courts. See River Park, Inc. v. City of Highland Park, 23

F.3d 164, 166–67 (7th Cir. 1994) (“Failure to implement state law violates that state

law, not the Constitution; the remedy lies in state court.”).

That said, in their reply brief, Plaintiffs shift the framing of their procedural

due process claim. They now contend that they are suing the Governor to enjoin him

from violating the Constitution, not Illinois state law, and that their suit thus is

permitted under the doctrine of Ex parte Young, 209 U.S. 123 (1908). Specifically,

Plaintiffs appear to mount an “unconstitutional conditions” challenge to the policies

on the principle that “the government may not deny a benefit to a person because he

exercises a constitutional right.” Koontz v. St. Johns River Water Mgmt. Dist., 570

U.S. 595, 604 (2013) (citations omitted); see also Klaassen, 2021 WL 3073926, at *23.

But Plaintiffs’ attempt to recharacterize their original claim is unprevailing, both

procedurally and on its merits.

First, Plaintiffs’ remodeled procedural due process claim, which centers on the

Governor’s alleged interference with their “liberty to follow a trade, profession, or

other calling,” Pls.’ Reply at 16 (citing Vill. of Orland Park v. Pritzker, 475 F. Supp.

3d 866, 884 (N.D. Ill. 2020)), is nowhere to be found in their earlier pleadings.

Plaintiffs’ Complaint and Motion for Temporary Restraining Order both rest on the

Governor’s alleged failure to comply with the EMAA. For example, the Motion’s

discussion of Plaintiffs’ “procedural due process” claim is entitled “The Governor

exceeded his authority under Illinois law in enacting Executive Order 2021-22,” TRO

Mot. at 10, and the section goes on to cite the EMAA and invoke this Court’s previous

invitation to challenge the propriety of the Governor’s exercises of emergency powers

pursuant to that statute. See id. (first citing the EMAA, 20 Ill. Comp. Stat. 3305/1

et seq., and then citing Cassell, 458 F. Supp. 3d at 981 (noting that future parties will

be able to bring an EMAA challenge “[s]hould this or any future Governor abuse his

or her authority by issuing emergency declarations after a disaster subsides”)); see

also Compl. ¶ 199 (stating, in pleading the procedural due process claim, that because

“the Governor did not have the authority to enter the Executive Order[,] . . . [t]he

imposition on Plaintiff health care workers – including the members of the Fire

Department who perform health care services – was therefore taken without due

process of law”). Plaintiffs cannot amend their claims in a reply brief.

But, even if the Court were to consider Plaintiffs’ new approach, their

“unconstitutional conditions” procedural due process claim against the Governor still

would fall short, because, as the Seventh Circuit has held, Defendants do not have a

fundamental constitutional right to refuse COVID-19 vaccinations. See Klaassen, 7

F.4th at 593. Put another way, Plaintiffs are correct that they have “the right to hold

specific private employment and to follow a chosen profession free from unreasonable

governmental interference,” Greene v. McElroy, 360 U.S. 474, 492 (1959), but the

vaccine policies in question are not unreasonable, because they satisfy the rational

basis test. See Turner, 207 F.3d at 426.

What is more, a procedural due process claim requires a plaintiff to allege a

deprivation of constitutional rights. See Tucker, 907 F.3d at 491. But, here, none of

the Plaintiffs subject to the Governor’s order has been fired or disciplined as of the

hearing date.10

10 This is not to say that, were any Plaintiffs to be disciplined or terminated for failure

to comply with the vaccination requirement, a procedural due process claim would be viable.

On the contrary, under the three-factor balancing test articulated in Mathews v. Eldridge,

424 U.S. 319 (1976), used to evaluate procedural due process claims, Plaintiffs’ interest in

For the reasons set forth in this section, the Court finds that it unlikely that

Plaintiffs will prevail on their procedural due process claims against the City or the

Governor.

C. Free Exercise Claim

Next, Plaintiffs assert that EO 2021-22 and the City Vaccination Policy violate

the Free Exercise Clause of the First Amendment. They contend that the policies

unconstitutionally burden their free exercise rights by forcing them either to be

vaccinated in violation of their sincerely held religious beliefs or lose their jobs. They

also claim that the City violated the Free Exercise Clause by denying, or refusing to

grant, religious exemptions to them.

A free exercise claim requires a plaintiff to show that a government action has

burdened her exercise of a sincerely held religious belief. See Fulton v. City of Phila.,

141 S. Ct. 1868, 1876 (2021). Under Employment Division v. Smith, 494 U.S. 872

(1990), neutral laws of general applicability that only incidentally burden religion are

not subject to strict scrutiny. Fulton, 141 S. Ct. at 1876 (citing Smith, 494 U.S. at

878–82). Government action that satisfies Smith receives rational basis review, see

Ill. Bible Colls. Ass’n v. Anderson, 870 F.3d 631, 639 (7th Cir. 2020), while government

action that is not neutral or generally applicable must pass strict scrutiny. Fulton,

141 S. Ct. at 1881.

not being terminated for refusing vaccination would likely be outweighed by the public’s

interest in preventing the spread of COVID-19 and the cost to the public’s safety of requiring

additional procedures. See Vill. of Orland Park, 475 F. Supp. 3d at 883 (noting that “the

second and third factors in the Mathews test weigh heavily against the need for pre-

deprivation process” in the context of a procedural due process challenge to COVID-19

mitigation measures).

Plaintiffs argue that the Court should apply strict scrutiny to the City

Vaccination Policy, mainly relying on the Sixth Circuit’s decision in Dahl v. Bd. of

Trustees of Western Michigan University, 15 F.4th 728 (6th Cir. Oct. 7, 2021), where

the court applied strict scrutiny to Western Michigan University’s denial of religious

exemptions to its vaccination requirement for student athletes. Id. at 734. This too

does not win the day for Plaintiffs.

First, whatever the rule may be in the Sixth Circuit, this Court must follow

the dictates of the Seventh Circuit’s ruling in Klaassen, which applied rational basis

review to all of the plaintiffs’ claims against Indiana University’s vaccine

requirement, including the free exercise claim. See Klaassen, 7 F.4th at 593; see also

Klaassen, 2021 WL 3073926, at *25–26. And, as the Court has repeatedly noted, the

vaccine orders pass the rational basis test.

Second, Plaintiffs’ free exercise challenge is distinguishable from the free

exercise claim in Dahl, because Plaintiffs here do not state a claim for an as-applied

challenge to any specific employee’s denial of a religious exemption. In Dahl, the

plaintiffs alleged specific facts suggesting that the university failed to accommodate

their sincerely held religious beliefs, See Dahl, 15 F.4th at 733–34. By contrast,

Plaintiffs here baldly assert that the City Vaccination Policy’s religious exemption

has not been administered properly. See Pls.’ Reply at 19–20. They do not plead the

particularized facts present in Dahl.

To be clear, if a particular employee is denied a religious exemption, she may

challenge that denial, based on the particular facts of her case, as a violation of her

free exercise rights. But no Plaintiffs have been denied a religious exemption on

grounds other than failing to adequately articulate their individual circumstances,

as the City Vaccination Policy requires. See Def. City’s Resp., Ex. B4, City of Chicago

COVID-19 Vaccine Religious Exemption Request Form (“City Religious Exemption

Form”) (requiring a reason for the request and an explanation of the principle of the

applicant’s religion that conflicts with taking the vaccine). The City notes that “the

only Plaintiffs who have been denied an exemption sought under either statute

submitted [a] form letter that did nothing other than quote the HCRCA definition of

‘conscience.’” Def. City’s Resp. at 23, see generally Def. City’s Resp., Ex. B5 (scans of

the denied applications). Because every denial before the Court at the present time

fails to comply with the basic requirements of the City Vaccination Policy’s religious

exemption process, these denials do not raise free exercise concerns. Cf. Baer-

Stefanov v. White, 773 F. Supp. 2d 755, 759–60 (N.D. Ill. 2011) (plaintiffs who had

not complied with the requirements for applying for a religious exemption could not

bring a free exercise claim challenging the constitutionality of the exemption process).

And, tellingly, Plaintiffs have not challenged any of these determinations in their

motion, nor have they provided the individualized facts necessary to conduct such a

review. Thus, on this record, Plaintiffs are not likely to succeed on their free exercise

challenge to the City Vaccination Policy.11

11 Plaintiffs also seem to argue that the religious exemption in the City Vaccination

Policy is unconstitutionally narrow because it requires the signature of a religious leader to

verify the sincerity of the applicant’s religious objections. The only authority Plaintiffs cite

for this proposition is a dissenting opinion in a Title VII case from another circuit. See TRO

Mot. at 12–13 (quoting Davis v. Fort Bend Cnty, 765 F.3d 480, 497 (5th Cir. 2014) (Smith, J.,

Because Plaintiffs’ free exercise claims are either not fully developed or receive

rational basis review, the Court finds that Plaintiffs are unlikely to succeed on the

merits of their free exercise claims.

D. Illinois Healthcare Right of Conscience Act (HCRCA)

Plaintiffs’ final claims arise under the Illinois Healthcare Right of Conscience

Act (HCRCA), 745 Ill. Comp. Stat. 70/1 et seq. Generally, this statute protects the

rights of Illinoisans to refuse to provide, receive, or participate in the administration

of health care services “contrary to [their] conscience.”12 Id. § 70/2. And the particular

provisions at issue prohibit “discrimination against any person in any manner . . .

because of such person’s conscientious refusal to receive . . . any particular form of

health care services contrary to his or her conscience.” Id. § 70/5; see also id. § 70/7

(prohibiting employment discrimination based on refusal to receive or provide health

care services contrary to one’s conscience).

Plaintiffs argue that EO 2021-22 and the City Vaccination Policy discriminate

against them based on their “vaccination status.” TRO Mot. at 13. In support of this

contention, they cite several cases purporting to show that “employees [cannot] be

terminated for their deeply held beliefs concerning health matters.” Id. (first citing

Vandersand v. Wal-Mart Stores, Inc., 525 F. Supp. 2d 1052 (C.D. Ill. 2017), and then

dissenting)). But the Court is not persuaded that it should read this requirement into the

First Amendment, especially under the present record.

12 The HCRCA defines “conscience” to include both religious and secular or philosophical

objections. See 745 Ill. Comp. Stat. 70/3 (“conscience” is “a sincerely held set of moral

convictions arising from belief in and relation to God, or . . . from a place in the life of its

possessor parallel to that filled by God among adherents to religious faiths”).

citing Rojas v. Martell, 161 N.E.3d 336 (Il. App. Ct. 2020)). For the reasons discussed

below, the Court concludes that Plaintiffs’ HCRCA claims are unlikely to succeed on

the merits.

1. HCRCA Claims Against the Governor

Plaintiffs’ HCRCA claims against the Governor must be dismissed at the

outset, because Governor Pritzker has properly invoked sovereign immunity. See

Def. J.B. Pritzker’s Resp. at 30. As noted above, the Eleventh Amendment bars suits

for injunctive relief against state officials for violations of state law when the state is

the “real, substantial party in interest.” Pennhurst, 465 U.S. at 106. Here, Plaintiffs

again are suing the Governor under a state statute based on his official action taken

in his official capacity. Thus, their claim is barred. Id.

2. HCRCA Claims Against the City

The Eleventh Amendment does not prohibit Plaintiffs’ claims against the City,

but they still fall short of the showing required for a temporary restraining order. In

their papers, Plaintiffs appear to be marshalling a facial challenge to the City

Vaccination Policy under the HCRCA; they quote the statute and argue simply that

the vaccine policy is “squarely a violation of the Act.” See TRO Mot. at 13. And

Plaintiffs might well be correct, if the City Vaccination Policy did not contain any

avenue for religious exemptions.

But the City Vaccination Policy does provide a detailed religious exemption

process that protects anyone who holds sincere religious objections to being

vaccinated. See generally City Religious Exemption Form. In fact, the religious

exemption included in the City Vaccination Policy safeguards the same religious

objections to medical treatment that the HCRCA protects. Compare id. (granting

exemptions for those with “a sincerely held set of moral convictions arising from belief

in and relation to religious beliefs”), with 745 Ill. Comp. Stat. 70/3 (defining

“conscience” as “a sincerely held set of moral convictions arising from belief in and

relation to God, or . . . from a place in the life of its possessor parallel to that filled by

God among adherents to religious faiths”). Accordingly, the Court concludes that the

City Vaccination Policy on its face does not violate the HCRCA and that Plaintiffs

have not demonstrated more than “a mere possibility of success” on the merits of their

HCRCA claim. Ill. Republican Party, 973 F.3d at 762.

In summary, the Court finds that Plaintiffs have not shown a likelihood of

success as to any of their claims. This alone is enough to deny their motion for a

temporary restraining order. See GEFT Outdoors, 922 F.3d at 364 (“If the plaintiff

fails to meet any of the[] threshold requirements, the court must deny the injunction.”

(quoting Girl Scouts of Manitou Council, 549 F.3d at 1086)). However, the Court will

briefly touch on the remaining factors for the sake of completeness.

II. Irreparable Harm

To show that they would suffer irreparable harm absent injunctive relief,

Plaintiffs must demonstrate more than a possibility of harm; they must prove that

such harm is likely. Winter, 555 U.S. at 2 (plaintiff must “demonstrate that

irreparable injury is likely in the absence of an injunction”). To this end, Plaintiffs

argue that “violations of individuals’ constitutional rights constitute irreparable

harm as a matter of law,” TRO Mot. at 13 (citing Joelner v. Vill. of Washington Park,

378 F.3d 613, 620 (7th Cir. 2004)). However, because Plaintiffs lack a fundamental

constitutional right to decline vaccinations during times of pandemic, see Klaassen, 7

F.4th at 593, they cannot rely upon the abridgment of that right to establish

irreparable harm.

Not to be deterred, Plaintiffs argue that a finding that they have no

fundamental right not to be vaccinated does not preclude a finding of irreparable

harm, because Defendants’ alleged violations of procedural due process also comprise

constitutional injury. But Plaintiffs’ procedural due process argument likewise

hinges upon a finding that they have a fundamental constitutional right to refuse

COVID vaccinations. See Greene, 360 U.S. at 492 (requiring “unreasonable

government interference” to state a claim for a procedural due process violation

stemming from termination of employment (emphasis added)).13

Moreover, even assuming that EO 2021-22 and the City Vaccination Policy

inflict a greater than de minimis constitutional injury, there is no evidence in this

record that any of the Plaintiffs has been fired or disciplined because he or she has

refused to take a vaccine. And if Plaintiffs were to be suspended without pay or lose

their jobs pursuant to the Governor or the City’s vaccination policies, Plaintiffs would

have an adequate relief at law—they could seek money damages. See D.U. v.

13 Alternatively, Plaintiffs could establish that EO 2021-22 and the City Vaccination

Policy are “unreasonable” for purposes of their procedural due process claim if they could

show that the policies lack a rational basis. See Turner, 207 F.3d at 426. But as the Court

has already stated, see supra section I.A.3, Defendants’ policies survive rational basis

scrutiny on the current record.

Rhoades, 825 F.3d 331, 339 (7th Cir. 2016) (money damages can generally provide

complete redress for termination of employment).14

III. Balance of the Equities

Lastly, Plaintiffs have not shown that the balance of the equities and the public

interest, which “merge when the [g]overnment is the opposing party,” Nken v. Holder,

556 U.S. 418, 435 (2009), favors the issuance of a temporary restraining order. In

assessing this factor, the Court must weigh the interests favoring an injunction

against “the consequences of granting or denying the injunction to non-parties.”

Abbott Labs v. Mead & Johnson Co., 971 F.2d 6, 11 (7th Cir. 1992). Here, the Court

finds that the public’s interest in reducing the transmission of COVID-19 weighs

heavily against granting the temporary restraining order, and numerous other courts

agree. See, e.g., Does 1–6, 16 F.4th at 37 (finding that public interest weighed in state

government’s favor in affirming denial of injunctive relief to healthcare workers

challenging state vaccine mandate); We the Patriots, 2021 WL 5121983, at *20;

Klaassen, 2021 WL 3073926, at *43–44; Cassell, 458 F. Supp. 3d at 1003.

Although Plaintiffs have disputed the efficacy of vaccination in preventing

transmission of COVID-19, under the rational basis standard, the Court may not

second-guess the informed and rational scientific judgments upon which Defendants

base their policies, especially without the benefit of discovery. See generally, e.g.,

14 The Seventh Circuit has indicated that there are circumstances where termination of

employment may lead to irreparable harm, but only when the particular injuries alleged

“really depart from the harms common to most discharged employees.” Bedrossian v.

Northwestern Memorial Hosp., 409 F.3d 840, 845 (7th Cir. 2005). Plaintiffs here have not

alleged any such extraordinary injuries.

Bleasdale Decl.; Owen Decl.; see also Minerva Dairy, 905 F.3d at 1055 (noting that

courtroom fact-finding is inappropriate on rational basis review); Vasquez, 895 F.3d

at 525 (same); Klaassen, 2021 WL 3073926, at *46 (“Given a preliminary record such

as today's, the court must exercise judicial restraint in superimposing any personal

view in the guise of constitutional interpretation.”). Thus, the Court finds that the

public interest factor weighs against granting Plaintiffs the emergency relief they

seek.

Conclusion

For the reasons stated above, Plaintiffs’ motion for a temporary restraining

order is denied.

IT ISSO ORDERED. ENTERED: 11/24/21

_ 5 fee

John Z. Lee

United States District Judge

32