North Carolina Supreme Court Rules That Family Can Sue Over Vaccination Without Consent

A federal law does not bar claims brought by the parent, the state’s top court says.

A boy receives a COVID-19 vaccine at a clinic at Los Angeles Mission College on Jan. 19, 2022. Robyn Beck/AFP via Getty Images

A federal law granting broad immunity to vaccine administrators and others does not preempt charges that a mother’s constitutional rights were violated when her son was given a COVID-19 vaccine without her consent, the North Carolina Supreme Court has ruled.

Emily Happel and her teenage son can proceed with a lawsuit against their local school board and a medical organization, according to the March 21 ruling. Happel’s son, Tanner Smith, who was 14 at the time, was given a COVID-19 vaccine in 2021 even though administrators did not obtain parental consent.

Lower courts found that a federal law, called the Public Readiness and Emergency Preparedness Act (PREP Act), preempted claims brought by Happel and Tanner. However, North Carolina Supreme Court Chief Justice Paul Newby wrote for the majority that the law only provides immunity in situations typically involving tort law, such as serious injury, and not constitutional violations.

The PREP Act, signed in 2005, is triggered when the federal government issues a declaration during a health emergency, which it did during the COVID-19 pandemic. The act says that under a declaration, covered people such as vaccine administrators are protected from “all claims for loss,” with few exceptions.

Courts have generally found that the immunization preempts a range of state-level claims, while the top court in North Carolina concluded that it does not shield people who violated constitutional rights.

“The literalist interpretation defendants urge us to adopt today defies even the broad scope of the statutory text. Under this view, Congress gave carte blanche to any willful misconduct related to the administration of a covered countermeasure, including the State’s deliberate violation of fundamental constitutional rights, so long as it fell short of causing ‘death or serious physical injury,’” Newby said.

That interpretation, he said, would let a covered person vaccinate an unconscious patient or a nurse at a public school to intentionally exaggerate the benefits of a treatment. “The fundamental and paramount constitutional rights to bodily integrity and parental control would be discarded without second thought,” Newby wrote. “That simply cannot be what Congress intended.”

Definition of ‘Loss’ Under PREP Act

Congress, in the PREP Act, provided immunity to “all claims for loss.” Happel argued that her claims did not meet the definition of loss, which Congress detailed to include death and loss of property. The examples listed in the law are all associated with tort law, the North Carolina Supreme Court majority said.

“Because ordinary tort loss is distinct from constitutional loss, the tort-based examples included in the PREP Act suggest that Congress did not intend for the immunity to block state constitutional claims,” Newby said.

Workers with the Old North State Medical Society vaccinated Tanner, despite his refusal and a lack of consent from his parents, at a clinic promoted by the Guilford County Board of Education. The defendants had argued the conduct was immunized by the PREP Act, citing other cases in which courts concluded similar conduct was shielded by the federal law.

North Carolina Supreme Court justices said the rulings did not persuade them because they either did not deal with constitutional claims or did not separate alleged constitutional violations from other state law claims.