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.

The new decision overturns rulings by a trial court, which sided with the defendants in 2023, and a state appeals court, which upheld that ruling the following year.

The appeals court said that it was “constrained to conclude the PREP Act preempts the protections” provided by state law.

The North Carolina Supreme Court remanded the case back to the appeals court, instructing it to decide on constitutional issues raised by the parties.

The state’s top court did affirm the lower court’s dismissal of battery claims brought by Happel and her son.

In a concurring opinion, Justice Philip Berger Jr., joined by Justice Tamara Barringer, said that the PREP Act immunity may appear limitless but “it is difficult to concede that the PREP Act confers immunity for outright wrongful acts.”

Dissenting Opinion

In a dissenting opinion, Justice Allison Riggs, joined by Justice Anita Earls, pointed out that the PREP Act says “the sole exception to the immunity from suit and liability” is “death or serious injury caused by willful misconduct.”

“It is not possible to square the majority’s reading with the purposes of the PREP Act and the almost uniformly broad language used to effectuate it,” Riggs said. She added later, “I would hold any constitutional claims raised by plaintiffs to be preempted by the PREP Act, rendering the defendants immune from suit.”

Riggs also wrote that the immunity only applies to civil suits and liability, not criminal charges or discipline from licensing bodies.

Parents Rights Implications

A lawyer for Old North State Medical Society declined to comment. The Guilford County Board of Education and one of its attorneys did not return inquiries by publication time.

Steven Walker, an attorney representing Happel and her son, told The Epoch Times in an email: “We are very pleased with the Court’s ruling. While we would have, of course, loved to see the battery claim reinstated as well, we believe that the Court decision was very favorable in the main on the case and have no real complaints.

“I believe the case is important even outside the issue of the PREP Act in that the Court gave its clearest explanation to date concerning the rights of parents to make medical decisions for their children under the North Carolina constitution,” Walker said.

“The PREP Act has a purpose, and that purpose is to provide immunity protections in situations when it might be difficult to determine the safety of a countermeasure during a time of crisis. It was never intended to allow the government to trample on the clear constitutional rights of its citizens.”