Scott Troogstad v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-3200

BARBARA LUKASZCZYK, et al.,

Plaintiffs-Appellants,

v.

COOK COUNTY, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:21-cv-05407 — Robert W. Gettleman, Judge.

____________________

No. 21-3231

JOHN HALGREN, et al.,

Plaintiffs-Appellants,

v.

CITY OF NAPERVILLE, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:21-cv-05039 — John Robert Blakey, Judge.

____________________

2 Nos. 21-3200, et al.

No. 21-3371

SCOTT TROOGSTAD, et al.,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO and JAY ROBERT PRITZKER,

Governor,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:21-cv-05600 — John Z. Lee, Judge.

____________________

ARGUED MAY 26, 2022 — DECIDED AUGUST 29, 2022

____________________

Before BRENNAN, SCUDDER, and ST EVE, Circuit Judges.

BRENNAN, Circuit Judge. In these appeals, which we con-

solidate for decision, three district judges denied motions for

preliminary injunctions against state and local COVID-19 vac-

cine mandates. The plaintiffs argue the mandates violate their

constitutional rights to substantive due process, procedural

due process, and the free exercise of religion. They also con-

tend the mandates violate Illinois state law. Although the

plaintiffs could have presented some forceful legal argu-

ments, they have failed to develop factual records to support

their claims. Because the plaintiffs have not shown a likeli-

hood of success on the merits, we affirm the decisions of the

district judges.

Nos. 21-3200, et al. 3

I. Factual Background

In response to the COVID-19 pandemic, state and local

authorities in Illinois enacted a series of mandates and re-

strictions. The State of Illinois, Cook County Health and Hos-

pitals System, the City of Chicago, and the City of Naperville

each issued an order, policy, or directive requiring certain em-

ployees to vaccinate or regularly test for the virus. Employees

who failed to comply with the mandates would be subject to

disciplinary action, including possible termination. We begin

by briefly summarizing each of the relevant state and local

policies.

The 2021 Illinois Mandate. On September 3, 2021, Governor

Pritzker used his emergency powers under the Illinois Emer-

gency Management Agency Act, 20 ILL. COMP. STAT. 3305/1 et

seq., to issue Executive Order 2021–22 (“2021 Order”). The

2021 Order requires certain healthcare workers to vaccinate,

or test at least weekly, for COVID-19. Workers who fail to

comply with the mandate will not be permitted on the prem-

ises of a healthcare facility. Under the 2021 Order, a “Health

Care Worker” is defined 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 con-

tracted to provide services to a Health Care Facility, and (2) is

in close contact” with other persons in the facility for a speci-

fied amount of time. Initially, a “Health Care Facility”

included “any institution, building, or agency … whether

public or private (for-profit or nonprofit), that is used, oper-

ated or designed to provide health services, medical treat-

ment or nursing, or rehabilitative or preventive care to any

person or persons.” According to the Order, “hospitals” and

“emergency medical services” met this definition.

4 Nos. 21-3200, et al.

A worker is exempt from the vaccination requirement if

“(1) vaccination is medically contraindicated,” or “(2) vac-

cination would require the individual to violate or forgo a sin-

cerely held religious belief, practice, or observance.” But

exempt workers still need to “undergo, at a minimum, weekly

testing.” The 2021 Order also provides that “[s]tate agen-

cies … may promulgate emergency rules as necessary to ef-

fectuate” it.

The 2021 Order states it is intended to reduce COVID-19

exposure and transmission: “health care workers, and partic-

ularly those involved in direct patient care, face an increased

risk of exposure to COVID-19.” Requiring these workers to

receive a “vaccine or undergo regular testing can help prevent

outbreaks and reduce transmission to vulnerable individuals

who may be at higher risk of severe disease.” The Order states

that “stopping the spread of COVID-19 in health care settings

is critically important because of the presence of people with

underlying conditions or compromised immune systems.”

The 2022 Illinois Mandate. Ten months later, on July 12,

2022, Governor Pritzker issued Executive Order 2022–16

(“2022 Order”), which re-issued and modified the 2021 Order.

The 2022 Order removes “emergency medical services” and

“IDPH licensed emergency medical service vehicles” from the

definition of a “Health Care Facility.” It also requires that cer-

tain healthcare workers undergo weekly or biweekly testing

only when the level of COVID-19 Community Transmission

is moderate or high, depending on the type of facility.

The Cook County Mandate. Cook County Health and Hos-

pitals System (“Cook County Health”) is an agency of Cook

County, Illinois. On August 16, 2021, it issued a vaccination

policy (“County Health Vaccination Policy”) that required all

Nos. 21-3200, et al. 5

personnel be fully vaccinated by September 30, 2021 as a con-

dition of their employment. 1 The policy applies to all Cook

County Health personnel, including contractors like the Hek-

toen Institute for Medical Research, LLC, a nonprofit organi-

zation that administers medical research grants. Failure to

comply with the County Health Vaccination Policy “consti-

tute[s] gross insubordination and will result in disciplinary

action, up to and including termination.”

The policy permits exemptions “based upon a disability,

medical condition, or sincerely held religious belief, practice,

or observance.” Exemption requests are considered individu-

ally. When reviewing an exemption request, Cook County

Health considers: (1) “the duration of the request (either per-

manent in the case of exemptions or temporary in the case of

deferrals),” (2) “the nature and severity of the potential harm

posed by the request,” (3) “the likelihood of harm,” and

(4) “the imminence of the potential harm.” Exempt personnel

are still “required to comply with preventive infection control

measures established by the Health System,” which could in-

clude conditions “such as job location, job duties, and shift,

but will minimally include weekly COVID-19 testing and en-

hanced [personal protective equipment] protocols.” At first,

Cook County Health decided to reject any religious accom-

modation request made by a person who had previously

taken the flu vaccine. It remains unclear whether this ap-

proach was formally reversed, but there is no dispute that

1 Several days later, the Cook County President issued an executive

order, which mandated the COVID-19 vaccine for certain Cook County

employees and encouraged County offices to develop their own vaccina-

tion policies.

6 Nos. 21-3200, et al.

Cook County Health later decided to grant religious exemp-

tions.

The City of Chicago Mandate. On October 8, 2021, the City of

Chicago issued a COVID-19 Vaccination Policy (“Chicago

Vaccination Policy”), which required all City employees to be

fully vaccinated by the end of the calendar year. Effective Oc-

tober 15, 2021, all employees, “as a condition of employment,”

had to “either be fully vaccinated against COVID-19” or un-

dergo testing on a “twice weekly basis with tests separated by

3-4 days.” Employees are “responsible for obtaining tests on

their own time and at no cost to the City.” The testing option

expired at the end of the year, at which point employees

would need to be fully vaccinated. The Chicago Vaccination

Policy permits accommodations for a disability, medical con-

dition, or sincerely held religious belief. To receive a religious

accommodation, an employee must fill out a request form, in-

cluding the reason for the exemption, the religious principle

that conflicted with being vaccinated, and the signature of a

religious leader.

The City of Naperville Mandate. On September 9, 2021, the

City of Naperville issued “Naperville Fire Department Spe-

cial Directive #21-01” (“Naperville Special Directive”). Under

that directive, emergency medical technicians and firefighters

employed by Naperville are required to either produce

weekly negative COVID-19 tests or show proof of vaccination.

This mandate is effectively coterminous with the State of Illi-

nois’s 2021 Order.

Nos. 21-3200, et al. 7

II. Procedural Background

Three lawsuits were filed in the Northern District of Illi-

nois, each challenging the Governor’s 2021 Order and one of

the local mandates.

In Troogstad v. City of Chicago, a group of City employees

(“Troogstad plaintiffs”) challenged the Chicago Vaccination

Policy and the 2021 Order. They claimed the regulations vio-

lated their rights to bodily autonomy under the constitutional

doctrines of substantive due process, procedural due process,

and the free exercise of religion. They also claimed the policies

violated the Illinois Health Care Right of Conscience Act. The

Troogstad plaintiffs petitioned for a temporary restraining or-

der against the enforcement of the policies, which Judge John

Lee denied. They then moved for a preliminary injunction.

The Troogstad plaintiffs declined to supplement the record

with witnesses and limited discovery, instead filing a supple-

mental brief in support of their motion. Judge Lee denied that

motion, and the Troogstad plaintiffs appeal that decision.

In Lukaszczyk v. Cook County, a group of Cook County

Health and Hektoen employees (“Lukaszczyk plaintiffs”) chal-

lenged the County Health Vaccination Policy and the 2021 Or-

der. They brought claims implicating substantive due pro-

cess, procedural due process, free exercise of religion, and the

Illinois Health Care Right of Conscience Act. Based on these

claims, the plaintiffs moved for a preliminary injunction to

bar enforcement of the mandates. Judge Robert Gettleman de-

nied that motion from the bench. The Lukaszczyk plaintiffs ap-

peal that decision.

In Halgren v. City of Naperville, employees of the City of

Naperville Fire Department (“Halgren plaintiffs”) challenged

8 Nos. 21-3200, et al.

the Naperville Special Directive and the 2021 Order. The

Halgren plaintiffs named as defendants Governor Pritzker, the

City of Naperville, and Edward-Elmhurst Healthcare

(“EEH”)—a health system which operates a Naperville hos-

pital and coordinates emergency medical services with the

Fire Department. The Naperville Special Directive also stated

that the Edward Hospital EMS System required the Fire De-

partment to “provide a roster of who is vaccinated and a ros-

ter of who will be submitting to weekly testing.” According to

the Halgren plaintiffs, the regulations violated their rights to

privacy and bodily autonomy under the constitutional doc-

trines of substantive due process, procedural due process,

and equal protection. They moved for a temporary restraining

order and preliminary injunction against the policies, as well

as a declaratory judgment that the Governor had exceeded his

statutory authority. The parties later agreed to convert the

Halgren plaintiffs’ combined motion for emergency relief into

a motion only for a preliminary injunction. When given the

opportunity, both parties chose to forgo discovery. Judge

John Robert Blakey denied the Halgren plaintiffs’ motion,

which they now appeal.

III. Mootness and Standing

Two threshold issues for our consideration are whether

certain claims are moot because of the 2022 Order and if cer-

tain parties have standing.

The Constitution limits federal jurisdiction to cases and

controversies. U.S. CONST. art. III, § 2. This limitation applies

“at ‘all stages of review, not merely at the time the complaint

is filed.’” UWM Student Ass’n v. Lovell, 888 F.3d 854, 860 (7th

Cir. 2018) (quoting Ciarpaglini v. Norwood, 817 F.3d 541, 544

(7th Cir. 2016)). A plaintiff has standing if he has “(1) suffered

Nos. 21-3200, et al. 9

an injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed

by a favorable judicial decision.” Fox v. Dakkota Integrated Sys.,

LLC, 980 F.3d 1146, 1151 (7th Cir. 2020) (quoting Spokeo, Inc. v.

Robins, 578 U.S. 330, 338 (2016)). “The party invoking federal

jurisdiction bears the burden of establishing these elements.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citation

omitted). The case becomes moot, “[i]f at any point the plain-

tiff would not have standing to bring suit at that time.” Mil-

waukee Police Ass’n v. Bd. of Fire & Police Comm’rs of City of the

Milwaukee, 708 F.3d 921, 929 (7th Cir. 2013). As a general rule,

cases or individual claims for relief are moot when the “issues

presented are no longer ‘live’ or the parties lack a legally cog-

nizable interest in the outcome.” League of Women Voters of

Ind., Inc. v. Sullivan, 5 F.4th 714, 721 (7th Cir. 2021) (quoting

Powell v. McCormack, 395 U.S. 486, 496 (1969)).

A. The 2022 Order

Governor Pritzker’s 2022 Order, which amended the 2021

Order, removed (among other things) the phrase “emergency

medical services” from the definition of a “Health Care Facil-

ity.” This amendment meant the 2021 Order no longer ap-

plied to emergency medical services because employees at

these facilities did not fall within the definition of a healthcare

worker. So, employees of the Chicago and Naperville Fire De-

partments were not subject to the Governor’s vaccination

mandate. As a result, the claims of those plaintiffs against

Governor Pritzker are moot because they seek to enjoin a pol-

icy that no longer applies to them. All other plaintiffs may still

proceed with their claims against the Governor.

10 Nos. 21-3200, et al.

Practically, this means all the Halgren plaintiffs’ claims

against Governor Pritzker are moot, 2 and all the claims made

by Chicago Fire Department employees in Troogstad against

Governor Pritzker are moot. Each of these plaintiffs were con-

sidered healthcare workers because they were part of “emer-

gency medical services,” so they now seek to enjoin an inap-

plicable policy.

B. The Hektoen Employees

Governor Pritzker argues that the Lukaszczyk plaintiffs

lack standing to challenge the 2021 Order because their al-

leged injury is not fairly traceable to the mandate. According

to the Governor, the plaintiffs failed to present evidence that

they objected to the weekly testing option, which was permit-

ted in lieu of vaccination. Each of the Lukaszczyk plaintiffs—

the Cook County and Hektoen employees—testified in their

depositions that they were willing to comply with a testing

option. So, the Governor submits, the plaintiffs’ “alleged inju-

ries of unwanted vaccination and/or employment discipline

are the product of the County’s mandate and are not fairly

traceable to the Governor’s conduct.”

We disagree and conclude that the Lukaszczyk plaintiffs

have standing to challenge the 2021 Order. There is standing

if a plaintiff has a fairly traceable injury that the court could

redress with a favorable decision. Fox, 980 F.3d at 1151. An

injury in fact is “an invasion of a legally protected interest

which is (a) concrete and particularized,” and “(b) actual or

imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at

2The Halgren plaintiffs were the only parties to raise an equal protec-

tion claim, and that claim was made solely against the Governor, so we

have no occasion to reach that constitutional argument.

Nos. 21-3200, et al. 11

560 (cleaned up). An injury is “particularized” if it “affect[s]

the plaintiff in a personal and individual way.” Id. at 560 n.1.

It is concrete if it is “real,” not abstract. Spokeo, Inc., 578 U.S. at

340 (citation omitted). The Lukaszczyk plaintiffs’ successfully

alleged an injury in fact by claiming they were burdened by

scheduling and paying for weekly COVID-19 tests. See

Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017) (“For

standing purposes, a loss of even a small amount of money is

ordinarily an ‘injury.’” (citations omitted)). The burden of

scheduling and paying for weekly tests suffices for an Article

III injury.

The injuries here are also fairly traceable to the defendants

because they are a direct result of the County Health Vaccina-

tion Policy. Both the district court and our court could redress

the plaintiffs’ injuries by enjoining the vaccination mandate,

eliminating the extra costs imposed on the defendants. See id.

The Lukaszczyk plaintiffs therefore have standing to challenge

the County Health Vaccination Policy.

C. Edward-Elmhurst Healthcare

EEH argues it is not responsible for the vaccine and testing

mandates so it should not be a party. Standing requires “a

causal connection between the injury and the conduct com-

plained of.” Lujan, 504 U.S. at 560–61 (citing Simon v. E. Ky.

Welfare Rights Org., 426 U.S. 26, 41–42 (1976)). Because EEH

did not issue or require compliance with either the 2021 or

2022 Orders or the Naperville Special Directive, EEH argues

it did not cause the harm the Halgren plaintiffs allege.

On this record, the Halgren plaintiffs do not have standing

against EEH. Like those plaintiffs, EEH was subject to the Na-

perville Special Directive. But there is no evidence that EEH

12 Nos. 21-3200, et al.

helped promulgate it. By its own terms, the Naperville Special

Directive mentions EEH only once, stating that certain em-

ployers must provide EEH with “lists of vaccinated and tested

employees.” Affidavits from an EEH official confirm this ac-

count. The plaintiffs do not respond to this argument, except

to state that EEH’s agent is empowered to supervise, and po-

tentially to suspend, EMS personnel. But the only evidence

the plaintiffs provided are their own affidavits, claiming that

Naperville told them that EEH required compliance with the

Special Directive. That EEH complied with Naperville’s Spe-

cial Directive is not, by itself, enough to prove a causal con-

nection. See Doe v. Holcomb, 883 F.3d 971, 975–76 (7th Cir. 2018)

(noting that when a plaintiff sues a state official to enjoin the

enforcement of a state statute, he must “establish that his in-

jury is causally connected to that enforcement and that enjoin-

ing the enforcement is likely to redress his injury”). So, the

Halgren plaintiffs do not have standing against EEH, and we

need not resolve EEH’s alternative argument that it is not a

state actor. The Halgren plaintiffs may proceed on their claims

against Naperville, but not against EEH.

IV. Preliminary Injunction

Having resolved those justiciability questions, we now re-

view the denial in each case of a motion for a preliminary in-

junction. Such a denial is examined for abuse of discretion.

DM Trans, LLC v. Scott, 38 F.4th 608, 617 (7th Cir. 2022). A dis-

trict court abuses its discretion “when it commits a clear error

of fact or an error of law.” Cassell v. Snyders, 990 F.3d 539, 545

(7th Cir. 2021) (quoting Abbott Lab'ys v. Mead Johnson & Co.,

971 F.2d 6, 13 (7th Cir. 1992)). We consider the district court’s

legal conclusions de novo and its findings of fact for clear

Nos. 21-3200, et al. 13

error. Common Cause Ind. v. Lawson, 978 F.3d 1036, 1039 (7th

Cir. 2020) (citations omitted).

A preliminary injunction is “an exercise of a very far-

reaching power, never to be indulged in except in a case

clearly demanding it.” Cassell, 990 F.3d at 544 (quoting Orr v.

Shicker, 953 F.3d 490, 501 (7th Cir. 2020)). A party seeking a

preliminary injunction “must establish that he is likely to suc-

ceed on the merits, that he is likely to suffer irreparable harm

in the absence of preliminary relief, that the balance of equi-

ties tips in his favor, and that an injunction is in the public

interest.” Winter v. Natural Res. Defense Council, Inc., 555 U.S.

7, 20 (2008) (citation omitted). The first step requires that the

plaintiff “demonstrate that [his] claim has some likelihood of

success on the merits, not merely a better than negligible

chance.” Mays v. Dart, 974 F.3d 810, 822 (7th Cir. 2020) (inter-

nal citation and quotation marks omitted). It “is often deci-

sive.” Braam v. Carr, 37 F.4th 1269, 1272 (7th Cir. 2022). If plain-

tiffs fail to establish their likelihood of success on the merits,

we need not address the remaining preliminary injunction el-

ements. Doe v. Univ. of S. Ind., No. 22-1864, 2022 WL 3152596,

at *3 (7th Cir. Aug. 8, 2022).

We address the remaining claims in the order presented

on appeal, which is the same order in which the district judges

addressed them. Those claims are:

14 Nos. 21-3200, et al.

Halgren v. Lukaszczyk v. Troogstad v.

City of Cook County, City of

Naperville, No. 21-3200 Chicago,

No. 21-3231 No. 21-3371

Judge Gettle-

Judge Blakey man Judge Lee

Substantive

Due X X X

Process

Procedural

Due X X X

Process

Free

X X

Exercise

Illinois

Health Care

Right of X X

Conscience

Act

A. Substantive Due Process

The plaintiffs in each case claim state and local COVID-19

regulations violated their constitutional right to substantive

due process by interfering with their rights to bodily auton-

omy and privacy.

The Fourteenth Amendment provides in part that no state

shall “deprive any person of life, liberty, or property, without

due process of law.” U.S. CONST. amend. XIV, § 1. The Due

Process Clause has a substantive and procedural component.

But “[t]he scope of substantive due process is very limited.”

Campos v. Cook Cnty., 932 F.3d 972, 975 (7th Cir. 2019) (quoting

Tun v. Whitticker, 398 F.3d 899, 902 (7th Cir. 2005)).

Nos. 21-3200, et al. 15

“Substantive due process protects against only the most egre-

gious and outrageous government action.” Id. (citations omit-

ted). When stating a claim, a “plaintiff must allege that the

government violated a fundamental right or liberty.” Id. (cit-

ing Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). Such a

violation must have been arbitrary and irrational. Id. (citations

omitted). Courts should also be “reluctant to expand the con-

cept of substantive due process because guideposts for re-

sponsible decisionmaking in this unchartered area are scarce

and open-ended.” Collins v. City of Harker Heights, 503 U.S.

115, 125 (1992) (citation omitted).

Under this framework, we consider whether the plaintiffs

assert a fundamental right or liberty. If so, we must apply

heightened scrutiny. If not, we review the claim for a rational

basis. Several cases speak to this decision. In Jacobson v. Com-

monwealth of Massachusetts, the Supreme Court considered the

validity of a Massachusetts statute that required all persons

older than 21 receive the smallpox vaccine. 197 U.S. 11, 12

(1905). Failure to comply with the law would result in a $5

fine (about $140 today). Id.; Roman Cath. Diocese of Brooklyn v.

Cuomo, 141 S. Ct. 63, 70 (2020) (Gorsuch, J., concurring). The

law’s only exception was for children deemed unfit for vac-

cination who presented a certificate signed by a registered

physician. Jacobson, 197 U.S. at 12. In response to the state law,

the city of Cambridge board of health adopted a regulation

requiring that all city inhabitants be vaccinated or revac-

cinated. Id. at 12–13. Henning Jacobson did not comply with

the mandate and was sentenced to jail until he agreed to pay

the fine. Id. at 13. He appealed, claiming the Massachusetts

law authorizing the local mandate violated his constitutional

rights under the Fourteenth Amendment. Id. at 14.

16 Nos. 21-3200, et al.

The Supreme Court held in Jacobson that a state may re-

quire, without exception, that the public be vaccinated for

smallpox. Id. at 39. The Court reasoned that “[a]ccording to

settled principles, the police power of a state must be held to

embrace, at least, such reasonable regulations established di-

rectly by legislative enactment as will protect the public

health and the public safety.” Id. at 25 (citations omitted). The

Massachusetts legislature “required the inhabitants of a city

or town to be vaccinated only when, in the opinion of the

board of health, that was necessary for the public health or the

public safety.” Id. at 27. Investing “such a body with authority

over such matters was not an unusual, nor an unreasonable

or arbitrary, requirement,” the Court concluded. Id. But “if a

statute purporting to have been enacted to protect the public

health, the public morals, or the public safety” lacks any “real

or substantial relation to those objects, or is, beyond all ques-

tion, a plain, palpable invasion of rights secured by the fun-

damental law, it is the duty of the courts to so adjudge, and

thereby give effect to the Constitution.” Id. at 31 (citations

omitted).

Jacobson, although informative precedent, is factually dis-

tinguishable. The Massachusetts law and Cambridge man-

date were challenged in the wake of the smallpox pandemic,

which was of a different nature than the COVID-19 pandemic

of the last few years. For example, as Judge Blakey found in

Halgren, the smallpox fatality rate among the unvaccinated

was about 26 percent; by contrast, the COVID-19 infection fa-

tality rate was estimated in January 2021 to be somewhere be-

tween 0.0–1.63 percent. Frank Fenner et al., Smallpox and its

Eradication, WORLD HEALTH ORGANIZATION (1988); John P.A.

Ioannidis, Infection fatality rate of COVID-19 inferred from sero-

prevalence data, WORLD HEALTH ORGANIZATION BULLETIN (Oct.

Nos. 21-3200, et al. 17

14, 2020) (stating that COVID-19 “[i]nfection fatality rates

ranged from 0.00% to 1.63%” with “corrected values from

0.00% to 1.54%” and in “people younger than 70 years, infec-

tion fatality rates ranged from 0.00% to 0.31% with crude and

corrected medians of 0.05%”).

In Halgren the district court also found that COVID-19 has

“a low attack rate”3 in contrast to the smallpox pandemic.

Grace E. Patterson et al., Societal Impacts of Pandemics: Compar-

ing COVID-19 With History to Focus Our Response, FRONTIERS

IN PUBLIC HEALTH (Apr. 21, 2021). Judge Blakey further con-

cluded that the vaccines for smallpox and COVID-19 are dis-

tinguishable—the smallpox vaccine was a sterilizing vaccine,

intended to kill the virus and prevent transmission, but many

of the COVID-19 vaccines are, by design, non-sterilizing.

James Myhre and Dennis Sifris, MD, Sterilizing Immunity and

COVID-19 Vaccines, VERYWELL HEALTH (Dec. 24, 2020).

Jacobson is also legally and historically distinguishable.

The decision predates United States v. Carolene Products Co.,

304 U.S. 144 (1938), in which the Court reserved the possibility

of stricter standards of review for certain constitutional cases

implicating “prejudice against discrete and insular minori-

ties.” Id. at 152–53 & n.4. The principles underlying Jacobson

are also important to consider. As Judge Blakey noted in a

thorough opinion, in Jacobson the Court voiced concerns for

federalism, the limits of liberty, and the separation of powers.

Jacobson instructed that in emergency circumstances courts

defer to the executive and legislative branches, but they do

3 An “attack rate” is typically “calculated as the number of people who

became ill divided by the number of people at risk for the illness.” Attack

Rate, ENCYCLOPEDIA BRITANNICA (2016).

18 Nos. 21-3200, et al.

not abdicate their constitutional role. If a policy had “no real

or substantial relation” to its ends, the Court in Jacobson rea-

soned, courts had a duty to intervene. Jacobson, 197 U.S. at 31.

Recent circuit precedent supplements Jacobson. In Klaassen

v. Trustees of Indiana University, eight students brought a law-

suit against Indiana University challenging the school’s

COVID-19 vaccine policy. 7 F.4th 592, 592 (7th Cir. 2021). That

policy required all students be vaccinated against COVID-19

unless they were exempt for religious or medical reasons. Id.

The students sought a preliminary injunction, claiming the

policy violated their due process rights under the Fourteenth

Amendment. Id. Citing Jacobson, this court applied the ra-

tional basis standard. Id. at 593. We noted that the university’s

vaccine policy made for an easier case than Jacobson because

the university’s policy had religious and medical exceptions,

and it required only university attendees to vaccinate, rather

than all the citizens of a state. Id. This court then denied the

request for an injunction pending appeal. Id. at 594.

The plaintiffs here cite several other decisions to argue

they have a fundamental liberty and bodily autonomy inter-

est, which require our court to review the mandates under

strict scrutiny review. See Cruzan v. Dir., Missouri Dep’t of

Health, 497 U.S. 261, 278 (1990) (stating that a “competent per-

son has a constitutionally protected liberty interest in refusing

unwanted medical treatment”); Washington v. Harper, 494 U.S.

210, 221–22, 229 (1990) (recognizing that prisoners possess “a

significant liberty interest in avoiding the unwanted admin-

istration of antipsychotic drugs under the Due Process Clause

of the Fourteenth Amendment” and stating that the “forcible

injection of medication into a nonconsenting person’s body

represents a substantial interference with that person’s

Nos. 21-3200, et al. 19

liberty” (citations omitted)); Glucksberg, 521 U.S. at 735 (hold-

ing that a state ban on assisted suicide did “not violate the

Fourteenth Amendment, either on its face or as applied to

competent, terminally ill adults who wish to hasten their

deaths by obtaining medication prescribed by their doctors”

(citation and internal quotation marks omitted)). The plain-

tiffs also rely on Roe v. Wade, 410 U.S. 113 (1973), and Planned

Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833

(1992), both since overruled by Dobbs v. Jackson Women’s

Health Org., 142 S. Ct. 2228, 2242 (2022).

“Unless a governmental practice encroaches on a funda-

mental right, substantive due process requires only that the

practice be rationally related to a legitimate government in-

terest, or alternatively phrased, that the practice be neither ar-

bitrary nor irrational.” Lee v. City of Chicago, 330 F.3d 456, 467

(7th Cir. 2003) (citing Glucksberg, 521 U.S. at 728). Following

the guidance of the Supreme Court, our court has been hesi-

tant to expand the scope of fundamental rights under sub-

stantive due process. See, e.g., Campos, 932 F.3d at 975 (noting

that employment-related rights are not fundamental); Palka v.

Shelton, 623 F.3d 447, 453 (7th Cir. 2010) (stating that “an al-

leged wrongful termination of public employment is not ac-

tionable as a violation of substantive due process unless the

employee also alleges the defendants violated some other

constitutional right or that state remedies were inadequate”

(citation omitted)). Using similar reasoning, our court applied

rational basis review to the vaccine mandate claim in Klaassen.

7 F.4th at 593. E.g. Cuomo, 141 S. Ct. at 70 (Gorsuch, J., concur-

ring) (“Although Jacobson pre-dated the modern tiers of scru-

tiny, this Court essentially applied rational basis review to

Henning Jacobson’s challenge.”). We follow that path here.

20 Nos. 21-3200, et al.

Plaintiffs in each case have failed to provide facts sufficient

to show that the challenged mandates abridge a fundamental

right. Nor do they provide a textual or historical argument for

their constitutional interpretation. Plaintiffs do not cite any

controlling case law or other legal authority in support of

their position, instead relying on decisions that are either fac-

tually distinguishable or that have been overruled. Neither

this court nor the district judges deny that requiring the ad-

ministration of an unwanted vaccine involves important pri-

vacy interests. But the record developed and presented here

does not demonstrate that these interests qualify as a funda-

mental right under substantive due process.

The district judge in each of these cases followed Supreme

Court and circuit court precedent by applying the rational ba-

sis standard. Following that same authority, we decline to ap-

ply strict scrutiny and instead review for rational basis. “Un-

der rational-basis review, a statutory classification comes to

court bearing a strong presumption of validity, and the chal-

lenger must negative every conceivable basis which might

support it.” Minerva Dairy, Inc. v. Harsdorf, 905 F.3d 1047, 1053

(7th Cir. 2018) (quoting Ind. Petroleum Marketers & Convenience

Store Ass’n v. Cook, 808 F.3d 318, 322 (7th Cir. 2015)). So, “to

uphold the statute, ‘we need only find a reasonably conceiva-

ble state of facts that could provide a rational basis for the

classification.’” Id. (quoting Ind. Petroleum Marketers, 808 F.3d

at 322). Rational basis review is “a heavy legal lift for the chal-

lengers.” Ind. Petroleum Marketers, 808 F.3d at 322. As Judge

Blakey stated in Halgren, the plaintiffs’ substantive due pro-

cess claim “is two-fold: (1) the mandate is based on a miscon-

ception that vaccinated individuals are less likely to spread

the SARS-CoV-2 virus than the unvaccinated and naturally

immune; and (2) natural immunity provides incredibly

Nos. 21-3200, et al. 21

strong protection against infection from COVID-19, and it

does so on par with any vaccine protection.”

In Halgren, the parties agreed that the vaccines can miti-

gate some dangerous COVID-19 symptoms. They also agreed

that both unvaccinated and vaccinated people can spread the

virus, and they did not dispute the existence of serious vac-

cine-induced side-effects. The parties did dispute the relative

protection provided by natural immunity and COVID-19 vac-

cines. The defendants provided evidence from the Centers for

Disease Control, declarations from public health officials, and

numerous studies, all reporting that the vaccine is effective

against COVID-19. The evidence that vaccines reduce the rate

of transmission provides a reasonably conceivable set of facts

to support the mandates.

The same is true for the protections afforded by natural

immunity. The challenged mandates are susceptible to scien-

tific critique, but the plaintiffs did not provide any evidence—

studies, expert reports, or otherwise—showing that the bene-

fits of vaccination on top of natural immunity eliminate a

“conceivable basis” for the mandates under rational basis re-

view. The plaintiffs do not dispute that these governments

have an interest in preventing the spread of COVID-19, and

they relied on reasonably conceivable scientific evidence

when promulgating the contested policies. Even if the vac-

cination policies do not fully account for natural immunity or

studies with contrary results, under rational basis review a

government need only show that its rationale is supported by

a “reasonably conceivable state of facts.” Minerva Dairy, 905

F.3d at 1053. The governments here have met that low bar. As

Judge Blakey noted, the plaintiffs do not account for the fact

that vaccination combined with natural immunity could

22 Nos. 21-3200, et al.

reasonably be judged as more effective than natural immunity

alone.

On this record, the Lukaszczyk, Troogstad, and Halgren

plaintiffs have not met their burden under the rational basis

standard to show that the challenged policies violate their

substantive due process rights. They have shown the efficacy

of natural immunity as well as pointed out some uncertainties

associated with the COVID-19 vaccines. But they have not

shown the governments lack a “reasonably conceivable state

of facts” to support their policies. Id. Thus, the district judges

correctly concluded that the substantive due process claims

were not likely to succeed on the merits.

B. Procedural Due Process

Plaintiffs in each case claim the state and local COVID-19

regulations violated their procedural due process rights. See

U.S. CONST. amend. XIV, § 1. Before reviewing this claim, we

consider the doctrine of sovereign immunity.

1. The Eleventh Amendment

The Eleventh Amendment provides that “[t]he Judicial

power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against

one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.” U.S. CONST. amend.

XI. A “claim that state officials violated state law in carrying

out their official responsibilities is a claim against the State

that is protected by the Eleventh Amendment.” Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984). “A fed-

eral court’s grant of relief against state officials on the basis of

state law, whether prospective or retroactive, does not vindi-

cate the supreme authority of federal law.” Id. at 106. Rather,

Nos. 21-3200, et al. 23

“it is difficult to think of a greater intrusion on state sover-

eignty than when a federal court instructs state officials on

how to conform their conduct to state law.” Id. This type of

“result conflicts directly with the principles of federalism that

underlie the Eleventh Amendment.” Id.

Even “when properly raised, sovereign immunity is not

absolute immunity.” Council 31 of the Am. Fed’n of State, Cnty.,

and Mun. Emps., AFL-CIO v. Quinn, 680 F.3d 875, 882 (7th Cir.

2012). A state may be subjected to an action in federal court in

three instances: “(1) where Congress, acting under its consti-

tutional authority conveyed by amendments passed after the

Eleventh Amendment … abrogates a state’s immunity from

suit; (2) where the state itself consents to being sued in federal

court; and (3) under the [Ex parte Young] doctrine.” Id. (cita-

tion omitted). Under the Ex parte Young doctrine, private par-

ties may “sue individual state officials for prospective relief to

enjoin ongoing violations of federal law.” Id. (quoting MCI

Telecomms. Corp. v. Ill. Bell Tel. Co., 222 F.3d 323, 337 (7th Cir.

2000)). The longstanding rationale for this doctrine is that

“[b]ecause an unconstitutional legislative enactment is ‘void,’

a state official who enforces that law ‘comes into conflict with

the superior authority of the Constitution,’ and therefore is

‘stripped of his official or representative character and is sub-

jected in his person to the consequences of his individual con-

duct.’” Id. (quoting Va. Office for Prot. & Advocacy v. Stewart,

563 U.S. 247, 254 (2011)). A court therefore “need only conduct

a straightforward inquiry into whether the complaint alleges

an ongoing violation of federal law and seeks relief properly

characterized as prospective.” Id. (quoting Ind. Prot. & Advo-

cacy Servs. v. Ind. Fam. and Soc. Servs. Admin., 603 F.3d 365, 371

(7th Cir. 2010)).

24 Nos. 21-3200, et al.

For reasons previously discussed, the procedural due pro-

cess claims against Governor Pritzker of all Halgren plaintiffs

and those Troogstad plaintiffs who were Chicago Fire Depart-

ment employees are moot. The remaining claims, made by the

Lukaszczyk plaintiffs and the rest of the Troogstad plaintiffs are

against Governor Pritzker in his official capacity and seek pro-

spective relief. To the extent these plaintiffs allege violations

of Illinois law—such as whether Governor Pritzker exceeded

his authority under the Emergency Management Agency

Act—sovereign immunity bars their claims in this court. Indi-

vidual state officials may be sued personally for federal con-

stitutional violations committed in their official capacities, but

that principle does not extend to “claim[s] that state officials

violated state law in carrying out their official responsibili-

ties.” Pennhurst, 465 U.S. at 121.

2. The Fourteenth Amendment

Review of the claim that Governor Pritzker’s 2021 Order

violated the Fourteenth Amendment by depriving the

Lukaszczyk and Troogstad plaintiffs of their protected property

interests is not barred by the Eleventh Amendment. A plain-

tiff who asserts “a procedural due process claim must have a

protected property interest in that which he claims to have

been denied without due process.” Khan v. Bland, 630 F.3d

519, 527 (7th Cir. 2010) (citation omitted). To demonstrate a

procedural due process violation of a property right, the

plaintiff must establish that there is “(1) a cognizable property

interest; (2) a deprivation of that property interest; and (3) a

denial of due process.” Id. (quoting Hudson v. City of Chicago,

374 F.3d 554, 559 (7th Cir. 2004)).

In Board of Regents of State Colleges v. Roth, the Supreme

Court explained that “[t]o have a property interest in a

Nos. 21-3200, et al. 25

benefit, a person clearly must have more than an abstract need

or desire for it,” and “more than a unilateral expectation of

it.” 408 U.S. 564, 577 (1972). Instead, the person must “have a

legitimate claim of entitlement to it.” Id. For “[i]t is a purpose

of the ancient institution of property to protect those claims

upon which people rely in their daily lives, reliance that must

not be arbitrarily undermined.” Id. The right to a hearing pro-

vides an opportunity to vindicate those claims. Id.

The Lukaszczyk and Troogstad plaintiffs argue that the right

to earn a living is protected under the Fourteenth Amend-

ment. They contend that even if an employee does not have a

property interest in public employment, a termination or de-

cision not to renew a contract “cannot be premised upon the

employee’s protected activities.” But beyond these general

statements, the plaintiffs have not provided any evidence or a

legal argument as to why they have a property interest in pub-

lic employment. Conclusory statements are not enough to es-

tablish “a legitimate claim of entitlement,” so the plaintiffs’

claim against Governor Pritzker fails.

The Lukaszczyk and Troogstad plaintiffs also assert proce-

dural due process claims against local authorities. They argue

that local executives exceeded their authority by promulgat-

ing vaccination policies without legislative directives. The

Troogstad plaintiffs claim the City of Chicago violated their

procedural due process rights when Mayor Lori Lightfoot

promulgated the City Vaccination Policy. According to the

Troogstad plaintiffs, the City Vaccination Policy is legislative

in nature and requires approval from the Chicago City Coun-

cil. As to the County Health Vaccination Policy, the Lukaszczyk

plaintiffs point out that Cook County Health “answer[s] to the

[Cook] County Board.” Other than this uncontested assertion,

26 Nos. 21-3200, et al.

though, they fail to explain what procedural violation oc-

curred.

The procedural due process claims here fail because the

Lukaszczyk and Troogstad plaintiffs have not articulated what

procedural protections they should have been afforded. As

this court has stated before, “[s]tate and local governments

need not follow the pattern of separated powers in the na-

tional Constitution.” Auriemma v. Rice, 957 F.2d 397, 399 (7th

Cir. 1992) (citations omitted). For example, “[e]xecutive offi-

cials sometimes exercise legislative powers (think of the city

manager model, related to parliamentary government).” Id. A

“[p]urely executive official[] may have the power to set policy

by delegation (express or implied by custom) when the legis-

lature is silent.” Id. (citations omitted). In fact, “[e]ven execu-

tive action in the teeth of municipal law could be called pol-

icy.” Id. Without specifying the process that was due, how it

was withheld, and evidence for the alleged protected interest,

the plaintiffs’ procedural due process claims fail. See Roth, 408

U.S. at 577; Khan, 630 F.3d at 527.

* * *

The district judges correctly ruled that the procedural due

process claims of the plaintiffs were unlikely to succeed on the

merits due to the bar of sovereign immunity or because they

have failed to show how the local policies denied them proce-

dural due process.

C. Free Exercise of Religion

The Lukaszczyk and Troogstad plaintiffs also claim that the

state and local COVID-19 regulations unconstitutionally bur-

dened their right to the free exercise of religion under the First

Amendment. Many of these plaintiffs object on religious

Nos. 21-3200, et al. 27

grounds to the use of alleged aborted fetal cells in the devel-

opment of the vaccine.

The First Amendment provides that “Congress shall make

no law … prohibiting the free exercise” of religion. U.S.

CONST. amend I. To merit protection under the Constitution,

“religious beliefs need not be acceptable, logical, consistent,

or comprehensible to others.” Thomas v. Review Bd. of Ind. Emp.

Sec. Div., 450 U.S. 707, 714 (1981). According to the plaintiffs,

the COVID-19 regulations violated the exercise of their sin-

cerely held religious beliefs by forcing them to either vac-

cinate in violation of their faith or lose their jobs. We consider

these claims, with the exception of the Chicago Fire Depart-

ment employees’ claims against Governor Pritzker in

Troogstad, which are moot for the reasons discussed above.

The Lukaszczyk and Troogstad plaintiffs cite certain deci-

sions to guide our evaluation of these claims. In Fulton v. City

of Philadelphia, the Supreme Court reiterated that “laws inci-

dentally burdening religion are ordinarily not subject to strict

scrutiny under the Free Exercise Clause so long as they are

neutral and generally applicable.” 141 S. Ct. 1868, 1876 (2021)

(citing Emp. Div., Dep’t of Human Res. of Oregon v. Smith, 494

U.S. 872, 878–82 (1990)). The government “fails to act neu-

trally when it proceeds in a manner intolerant of religious be-

liefs or restricts practices because of their religious nature.” Id.

(citations omitted). Further, a law is not generally applicable

if it provides “‘a mechanism for individualized exemptions’”

or “prohibits religious conduct while permitting secular con-

duct that undermines the government’s asserted interests in a

similar way.” Id. at 1877 (citations omitted) (quoting Smith,

494 U.S. at 884). So, “where the State has in place a system of

individual exemptions, it may not refuse to extend that

28 Nos. 21-3200, et al.

system to cases of religious hardship without compelling rea-

son.” Id. (quoting Smith, 494 U.S. at 884).

The Sixth Circuit reviewed a similar claim in Dahl v. Board

of Trustees of Western Michigan University, 15 F.4th 728 (6th Cir.

2021). There, a public university promulgated a policy requir-

ing “student-athletes to be vaccinated against COVID-19.” Id.

at 730. The policy permitted the school to consider “individ-

ual requests for medical and religious exemptions on a discre-

tionary basis.” Id. But, when 16 student-athletes requested

religious exemptions, the university ignored or denied their

requests and barred them from participating in team activi-

ties. Id. The student-athletes sued the university, and a district

court preliminarily enjoined the officials from enforcing the

mandate. Id. The Sixth Circuit denied the motion for a stay of

the preliminary injunction because the Free Exercise chal-

lenge would likely succeed on appeal. Id. at 736. The court

stated that “having announced a system under which

student-athletes can seek individualized exemptions, the Uni-

versity must explain why it chose not to grant any to plain-

tiffs.” Id. Because “the University’s policy is not neutral and

generally applicable,” the court “analyze[d] the policy

through the lens of what has come to be known as ‘strict scru-

tiny.’” Id. at 734 (citing Fulton, 141 S. Ct. at 1881).

In Troogstad, Judge Lee concluded that there was no need

to apply the test reiterated in Fulton because the plaintiffs had

“not stated a claim under the Free Exercise Clause on the

current record.” On the facts before him, no plaintiff that “ap-

plied for and [was] denied an exemption from the City Vac-

cination Policy … made a good faith attempt to comply with

the Policy’s exemption process.” That process requires appli-

cants to “fill out a form providing a reason for the request and

Nos. 21-3200, et al. 29

an explanation of the principle of the applicant’s religion that

conflicts with vaccination.”

Before us, the Troogstad plaintiffs concede that Judge Lee

“correctly pointed out that there was no as-applied challenge”

in the case. The plaintiffs note, though, that when the petition

was filed, the City of Chicago had “not yet ruled on requests

for religious accommodations.” Rather than wait for the

accommodation decisions, the Troogstad plaintiffs brought a

facial challenge, arguing the accommodation forms “demon-

strate that the City reserved great discretion for itself to rule

on whether the religious beliefs were legitimate, consistent,

and approved by religious leaders.” But this facial challenge

is insufficient. On paper, the City of Chicago provides reli-

gious exemptions for its vaccination policy. Judge Lee gave

the Troogstad plaintiffs an opportunity to develop the factual

record on this point, but they declined to do so. It is unlikely

that they will succeed on the merits without evidence of how

the religious exemption is applied in practice.

The Lukaszczyk plaintiffs argue that Cook County Health’s

initial decision to reject any religious accommodation request

made by someone who had previously received the flu vac-

cine violated the Free Exercise Clause. They claim this policy

was never rescinded, although they admit that the govern-

ment did an “about-face,” later deciding to grant religious

exemptions. According to the Lukaszczyk plaintiffs, this

accommodation permitted individuals to seek “non-existent

telecommuting positions” and favored individuals who re-

ceived one Pfizer or Moderna shot over those who had natural

immunity. Once again, if these assertions have merit, there is

no record evidence to support them. The plaintiffs should

have gathered facts and created a record detailing any

30 Nos. 21-3200, et al.

wrongful denials of requests for religious exemptions. In-

stead, they made a facial challenge, which ignored the text of

the policy’s religious exemption and the status of the plain-

tiffs’ exemption requests. This does not show a violation of

their right to freely exercise their religions.

For these reasons, the district judges correctly concluded

that the free exercise claims of the Lukaszczyk and Troogstad

plaintiffs were unlikely to succeed on the merits.

D. The Illinois Health Care Right of Conscience Act

Finally, the Lukaszczyk and Troogstad plaintiffs claim that

the state and local COVID-19 regulations violate their rights

under the Illinois Health Care Right of Conscience Act, 745

ILL. COMP. STAT. § 70/1 et seq. (“HCRCA”). Between these two

cases, the plaintiffs make claims against Governor Pritzker,

Cook County, the City of Chicago, and Hektoen. As discussed

above, the HCRCA claims against Governor Pritzker are ei-

ther mooted by the 2022 Order or barred by the Eleventh

Amendment. See Pennhurst, 45 U.S. at 106.

The HCRCA states in part:

It shall be unlawful for any person, public or

private institution, or public official to discrimi-

nate against any person in any manner … be-

cause of such person’s conscientious refusal to

receive, obtain, accept, perform, assist, counsel,

suggest, recommend, refer or participate in any

way in any particular form of health care ser-

vices contrary to his or her conscience.

Nos. 21-3200, et al. 31

745 ILL. COMP. STAT. § 70/5. The statute defines “[c]onscience”

as “a sincerely held set of moral convictions arising from be-

lief in and relation to God, or which, though not so derived,

arises from a place in the life of its possessor parallel to that

filled by God among adherents to religious faiths.” Id. § 70/3.

The plaintiffs claim that the local vaccine mandates on their

face violate this provision. But both of the challenged man-

dates provide individualized religious exemptions. For exam-

ple, as Judge Lee explained in Troogstad, the City of Chicago’s

religious exemption form separates out individuals with “a

sincerely held set of moral convictions arising from belief in

and relation to religious beliefs.” So, both the HCRCA and the

City’s Vaccination Policy endeavor to protect those who ob-

ject to the vaccine for moral reasons.

The same is true in Lukaszczyk. Those plaintiffs argue that

the County Health Vaccination Policy violates the HCRCA

because it “threaten[s] suspension and subsequent termina-

tion” of noncompliant employees. But on its face, the policy

permits exemptions “based upon a disability, medical condi-

tion, or sincerely held religious belief, practice, or ob-

servance.” The text of this exemption fits within the HCRCA’s

conscience protections. The County Health Vaccination Pol-

icy also states it does not permit “exemption[s] or deferral[s]

based solely upon a general philosophical or moral reluc-

tance.” Although more troubling on its face, this language

does not disqualify the County Health Vaccination Policy un-

der the HCRCA because that Policy still permits exemptions

based upon a sincerely held religious belief.

The Lukaszczyk plaintiffs also have not made an as-applied

claim or provided any evidence that the County Health Vac-

cination Policy’s religious exemption does not cover people

32 Nos. 21-3200, et al.

who are protected under the HCRCA. See Wash. State Grange

v. Wash. State Republican Party, 552 U.S. 442, 450–51 (2008)

(“[W]e must be careful not to go beyond the statute’s facial

requirements and speculate about ‘hypothetical’ or ‘imagi-

nary’ cases.” (citing United States v. Raines, 362 U.S. 17, 22

(1960)). In short, the Lukaszczyk plaintiffs do not present any

textual argument or evidence that the County Health Vac-

cination Policy violates Illinois state law.

We cannot conclude that the local vaccine mandates vio-

late the HCRCA as a facial matter. To pursue this claim, the

plaintiffs should have produced evidence of their allegations.

Without this evidence, it is unlikely that their claims against

the local governments and Hektoen will succeed on their mer-

its.

V. Conclusion

Based on the records before us, the district judges did not

abuse their discretion when they denied the plaintiffs’ mo-

tions for a preliminary injunction. Even if the plaintiffs had

established the other elements required for a preliminary in-

junction, they have not shown that their claims are likely to

succeed on the merits. We therefore AFFIRM the decisions of

the district court.