Halgren v. City of Naperville

• Decision Date: 19 December 2021
• Docket Number: Case No. 21-cv-05039
• Citation: 577 F.Supp.3d 700
• Parties: John HALGREN, John K. Steigler, Gil Cortez, Chris Garon, Robert McCormick, and Joel Fox, individually and on behalf of similarly situated employees of the City of Naperville, Plaintiffs, v. CITY OF NAPERVILLE, Edward-Elmhurst Healthcare, and Governor Jay Robert Pritzker, Defendant.
• Court: U.S. District Court — Northern District of Illinois

577 F.Supp.3d 700

John HALGREN, John K. Steigler, Gil Cortez, Chris Garon, Robert McCormick, and Joel Fox, individually and on behalf of similarly situated employees of the City of Naperville, Plaintiffs,

v.CITY OF NAPERVILLE, Edward-Elmhurst Healthcare, and Governor Jay Robert Pritzker, Defendant.

Case No. 21-cv-05039

United States District Court, N.D. Illinois, Eastern Division.

Signed December 19, 2021

Jonathan D. Lubin, Attorney at Law, Skokie, IL, for Plaintiffs.

Jennifer Marie Lutzke, Kristen June Foley, City of Naperville, Naperville, IL, for Defendant City of Naperville.

Patrick Sean Coffey, Robert Matthew Romashko, Husch Blackwell LLP, Chicago, IL, for Defendant Edward-Elmhurst Healthcare.

Hal Dworkin, Mary Alice Johnston, Office of Illinois Attorney General, Chicago, IL, for Defendant Governor Jay Robert Pritzker.

MEMORANDUM OPINION AND ORDER

John Robert Blakey, United States District Judge

This case concerns the constitutionality of a vaccine and testing mandate issued by Illinois Governor Jay Robert Pritzker. The mandate compels healthcare workers within the state to either immunize against the novel coronavirus or to submit to weekly testing. Faced with this choice, several first responders now challenge the constitutionality of the mandate, especially as it applies to individuals with the benefit of natural immunity.¹ They also moved for a preliminary injunction to bar enforcement of the mandate while they litigate their constitutional claims. [4]. On November 1, 2021, this Court held a hearing and denied the motion preliminarily from the bench, subject to a written order. [41]. The Court now issues its memorandum opinion denying the motion [4]. The Court begins with the case background and relevant injunctive relief standard, and then follows with the requisite findings of fact and rulings of law.

I. Case Background

A. The COVID-19 Pandemic

In January 2020, Illinois health officials announced the first confirmed Illinois case of an infection with the virus known as SARS-CoV-2, which can, in a percentage of cases, result in a symptomatic disease termed "COVID-19."² Around the same time, the Director General of the World Health Organization ("WHO") designated this novel coronavirus as a Public Health Emergency of International Concern. [21-1] ¶ 12.³ Shortly thereafter, the United States Secretary of Health and Human Services ("HHS") declared the same.⁴ As the virus continued to spread throughout the United States, the Centers for Disease Control and Prevention ("CDC") recommended various community mitigation efforts to fight the growing pandemic.⁵ Following this lead, Illinois’ Governor Jay Pritzker⁶ declared a state of emergency by mid-March 2020.⁷

The SARS-CoV-2 virus spreads primarily through respiratory droplets such as those emitted when a person coughs

, sneezes or speaks. [21-1] ¶ 15; [21-2] ¶ 12. An individual need not be presently in the throes of sickness to spread the virus; individuals can acquire and spread the virus without ever experiencing any symptoms of COVID-19 disease. [21-1] ¶ 16; [21-2] ¶ 13. The evidence also shows that both vaccinated and unvaccinated individuals who become infected may be at their most contagious before they show any signs of disease. [21-1] ¶ 17 ("[I]n people who do develop symptoms, the highest levels of virus occur prior to the onset of symptoms."); [21-2] ¶ 13 ("People can acquire and spread COVID-19 without experiencing symptoms, and the highest levels of virus occur before the onset of any symptoms.").⁸

Following the initial detection of SARS-CoV-2, new variants or strains of the virus have also emerged. See [21-1] ¶ 25; [21-2] ¶ 18. The Delta variant, for example, was detected in India in late 2020. [21-2] ¶ 18. The CDC estimates that cases of infection due to the Delta variant were first seen in the United States in or around April 2021. Id.⁹ The CDC's estimates also suggest that the Delta variant now accounts for more than 90 percent of all sequenced coronavirus infections

in the United States. Id. ¶ 20; [21-1] ¶ 25 (describing the Delta variant as "more transmissible (i.e., more contagious) than previously circulating strains"), ¶ 28; see also [21] at 5–6 ("That variant is more aggressive, more transmissible, and may cause more severe disease than previous strains of the virus."). The Delta variant is not alone; on November 26, 2021 the WHO recognized a new "variant of concern" termed "Omicron."¹⁰

Indisputably, the COVID-19 pandemic remains an important public health crisis, several times more serious than seasonal influenza

for certain at-risk groups, especially senior citizens. See

Klaassen v. Trustees of Indiana Univ. , No. 1:21-CV-238 DRL, 549 F.Supp.3d 836, 844 (N.D. Ind. July 18, 2021) (" Klaassen I ") ("Individuals with longstanding systemic health inequities or preexisting or immunocompromising conditions, and elderly individuals prove at greater risk of severe illness or hospitalization following an infection."); see also

Democratic Nat'l Comm. v. Wisconsin State Leg. , 592 U.S. ––––, 141 S. Ct. 28, 32, 208 L.Ed.2d 247 (2020) (Kavanaugh, J., concurring) ("The virus poses a particular risk to the elderly and to those with certain pre-existing conditions.").

The risks of COVID-19, however, do not present the same degree of danger for everyone; and there is a steep age-gradient associated with severity of disease.¹¹ Given the steep age gradient, the risk-benefit calculus for various COVID-19 vaccines and treatments differs sharply across various demographic groups, and the physiological effects of COVID-19 infection fall along a broad spectrum.¹² Most COVID-19 cases are mild with minor symptoms; other less-common cases involve serious respiratory distress and damage, resulting in hospitalization, intubation, and in rare cases death.¹³ Overall, however, the evidence confirms that infection with the SARS-CoV-2 virus still retains an extremely high overall survivability rate.¹⁴

B. Vaccine Development

In response to the pandemic, pharmaceutical companies began working on vaccines via the aid of generous public funding.¹⁵ In November 2020, Pfizer and BioNTech announced the completion of their new vaccine. [21] at 2. Days later, Moderna announced the same. Id. Both vaccines were developed using messenger RNA ("mRNA") technology and were granted emergency use authorization ("EUA") for select populations by the Food and Drug Administration ("FDA") by the end of December 2020, id. at 3, and, as of October 29, 2021, the EUA extends to ages five and older.¹⁶ At the beginning of 2021, Johnson and Johnson announced the formulation of its own vaccine, which was developed using a viral vector method of vaccine technology. Id. The FDA granted the vaccine EUA for select groups in February 2021.¹⁷

The Pfizer-BioNTech COVID-19 vaccine received FDA approval on August 23, 2021 for individuals sixteen years of age and older; on September 22, 2021, the FDA amended the EUAs to allow for the use of a single booster dose to be administered at least six months after completion of the primary immunization

series in select populations. [21-1] ¶ 41; [21-2] ¶ 27.¹⁸ In November 2021, the FDA authorized both the Pfizer-BioNTech and Moderna vaccine boosters for all adults ages eighteen and older,¹⁹ and on December 9, 2021, the FDA authorized boosters of Pfizer-BioNTech for ages 16 and 17. The vaccine trials conducted with the FDA as part of the emergency use process were designed to look only at infection and severity of infection for outcomes. [21-1] ¶ 42. Those trials "did not evaluate the impact of vaccination on transmission of infection to others." Id.²⁰

Since the three vaccines received EUA status, and as of today's decision, voluntary public awareness efforts have achieved high rates of vaccination

. [21] at 4–5. Specifically, the public health data confirms that 197,838,728 people in the United States have been fully vaccinated.²¹ That number translates to approximately 7,483,367 people in Illinois.²²

C. Vaccine Efficacy and Safety

The parties agree that the vaccines can mitigate the more dangerous symptoms of COVID-19 (including long term complications, hospitalizations, ICU admissions, and death). See [1] ¶¶ 21, 23 (Plaintiffs); [21] at 15 (Defendants).²³ Plaintiffs recognize that vaccines are at least 64 percent effective at preventing symptomatic cases of COVID-19 and concede that "the vaccines have been effective at preventing serious cases and deaths." [1] ¶¶ 21, 23. In turn, Defendants cite recent research, [21] at 15 nn.22, 23, which found vaccines to be highly effective at "preventing symptomatic disease," Jamie L. Bernal et al., Effectiveness of COVID-19 Vaccines against the B.1.617.2 (Delta) Variant , 385 N. ENG. J. MED. 585–94 (Aug. 12, 2021), available at https://www-nejm-org.ezproxy.lib.ntust.edu.tw/doi/full/10.1056/nejmoa%1F2108891 (last visited Dec. 6, 2021) (the "Bernal Study"). For example, the Bernal Study finds that, after one vaccine dose, individuals enjoy a 30.7 percent effectiveness rate against symptomatic disease when exposed to the Delta variant, and a 48.7 percent effectiveness rate with respect to the Alpha variant. After two doses (depending upon the brand of vaccine), the evidence shows a 67 to 88 percent effectiveness rate for the Delta variant, and 74.5 to 93.7 percent effectiveness for the Alpha variant. Id. The CDC has also found that "COVID-19 vaccination

reduces the risk of COVID-19 and its potentially severe complications [and] data suggest that vaccination may make symptoms less severe in people who are vaccinated but still get COVID-19."²⁴

Beyond the benefits of mitigating COVID-19 symptoms, the parties also agree that both the unvaccinated and vaccinated can nevertheless "acquire and spread" the SARS-CoV-2 virus. [21-1] ¶ 21; [1] ¶ 23.²⁵ Unlike certain sterilizing vaccines (such as the small pox vaccine at issue in Jacobson v. Massachusetts , 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) ), the vaccines for COVID-19 are, by...