Mazer v. D.C. Department of Health

• Court: District Court, District of Columbia
• Decided: March 18, 2022
• Docket: Civil Action No. 2021-1782
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VICTOR M. BOOTH, individually and as next of friend of L.B., a minor child, et al.,

Plaintiffs, Case Nos. 21-cv-01857 (TNM) and and 21-cv-01782 (TNM)

JOSHUA A. MAZER, individually and on behalf of his minor child,

Plaintiff

v.

MURIEL BOWSER, in her official capacity as Mayor of the District of Columbia, et al.,

Defendants.

MEMORANDUM OPINION

In late 2020, the D.C. Council approved a law allowing children as young as eleven to get

vaccinated without parental consent or knowledge. Parents who object to childhood vaccinations

filed complaints and sought preliminary injunctions in two separate cases, but they bring nearly

identical claims. They argue that federal law preempts the District’s law and that it violates their

constitutional and statutory rights. The District opposes the imposition of preliminary

injunctions and moves to dismiss. It argues that the parents lack standing, that they have not

justified preliminary injunctive relief, and that they failed to state a claim.

The Court holds that all the parents have standing for their preemption claims and have

shown a likelihood of success on the merits for those claims. Federal law preempts the District’s law because the laws place contradictory duties on healthcare providers. The Court also holds

that some of the parents have standing for their Free Exercise claim and that they have shown

they are likely to succeed on the merits because the District’s law requires providers to hide

children’s vaccination status from parents who invoke their religious exemption rights but not

from other parents. For both the preemption and Free Exercise claims, the parents have shown

that they face irreparable harm and that the balance of the equities and public interest supports

granting an injunction.

Because the parents are entitled to preliminary injunctions for these two theories, the

Court need not evaluate their other theories. The Court therefore will grant the motions for

preliminary relief and will deny the District’s motions to dismiss for all the parents as to their

preemption claims and for some of the parents as to their Free Exercise claim. The Court will

separately address the remaining claims.

I. BACKGROUND

Both the federal government and the District regulate the administration of childhood

vaccines. The federal government’s regulatory power stems from the National Childhood

Vaccine Injury Act of 1986 (NCVIA). 42 U.S.C. §§ 300aa-1, et seq. Congress passed the

NCVIA on the heels of “a massive increase in vaccine-related tort litigation” in the mid-1980s.

Bruesewitz v. Wyeth LLC, 562 U.S. 223, 227 (2011). As a result, several vaccine manufacturers

left the market even as many plaintiffs claimed that obtaining compensation for vaccine-related

injuries was costly and difficult. Id. Vaccination rates among children began to fall, and public

health officials sounded the alarm. Id.

2 The NCVIA contains a two-pronged solution. First, it grants “significant tort-liability

protections [to] vaccine manufacturers.” Id. at 229. It accomplishes this by prohibiting state law

to the contrary. See 42 U.S.C. § 300aa-22(e).

Second, in a “quid pro quo,” it created the National Vaccine Injury Compensation

Program. Bruesewitz, 562 U.S. at 228–29. A key component of the Program is the Vaccine

Injury Table, which lists covered vaccines and associated injuries. Id. If an injury manifests

soon after administration of a vaccine, “then the vaccine is presumed to have caused the injury

and the child is entitled to compensation, unless [the U.S. Department of Health and Human

Services (HHS)] can prove an alternative cause of injury.” Booth Ver. Am. Compl. (Booth

Compl.) ¶ 306, ECF No. 31. This is called a “table injury.” Id. But if the injury manifests later,

then the petitioner must prove causation. These so-called “non-table injuries” account for more

than 90% of all vaccine injury claims. Id. A minor cannot be a petitioner. 42 U.S.C. § 300aa-

11(b)(1)(A). Instead, the minor’s legal representative must petition on the minor’s behalf. Id.

Because of time limits set by the NCVIA, petitioners must quickly identify vaccine-

related injuries to qualify for the Program. To assist petitioners, Congress mandated that HHS

produce vaccine information statements (VIS) for distribution to vaccine recipients. Id. § 300aa-

26(a). A VIS must include “(1) a concise description of the benefits of the vaccine, (2) a concise

description of the risks associated with the vaccine, (3) a statement of the availability of the

[Program] , and (4) such other relevant information as may be determined by [HHS].” Id.

§ 300aa-26(c). Every time a healthcare provider administers a vaccine listed on the Vaccine

Injury Table, he must provide a VIS “to the legal representatives of any child or to any other

individual to whom such provider intends to administer such vaccine.” Id. § 300aa-26(d).

3 The District requires certain vaccinations for all children attending a D.C.-area school—

whether public, private, or parochial. See D.C. Code §§ 38-501, et seq. The District bars

schools from admitting a student “unless the school has certification of immunization for that

student, or unless the student is exempted pursuant to § 38-506.” Id. § 38-502(a). Section 38-

506 exempts students from the certification requirement if the “responsible person” for the

student “objects in good faith and in writing . . . that the immunization would violate his or her

religious beliefs.” Id. § 38-506(1). The law also exempts students “[f]or whom the school has a

written certification by a private physician . . . or the public health authorities that immunization

is medically inadvisable.” Id. § 38-506(2). Absent one of these exemptions, students certify

their immunizations on part 3 of the District’s Universal Health Certificate (Certificate). See id.

§ 38-602(a)(1); see also Booth Ex. 1, ECF No. 31-1 (copy of the Certificate).

In 2020, the District passed the Minor Consent for Vaccinations Act Amendment of 2020

(MCA). The MCA allows some children to receive a vaccine without parental consent:

A minor, 11 years of age or older, may consent to receive a vaccine if the minor is capable of meeting the informed consent standard, the vaccine is recommended by the United States Advisory Committee on Immunization Practices (“ACIP”), and will be provided in accordance with ACIP’s recommended immunization schedule.

D.C. Law 23-193 § 2(a). The MCA states that a minor meets the informed consent standard “if

the minor is able to comprehend the need for, the nature of, and any significant risks ordinarily

inherent in the medical care.” Id. § 2(b).

Several key features of the MCA are relevant here. First, to help minors make an

informed decision, the MCA instructs the D.C. Department of Health to “produce one or more

age-appropriate alternative vaccine information sheets” that explain the risks and benefits of

vaccines. Id. § 2(c). Second, the MCA tells medical providers to seek reimbursement for

4 vaccinations “without parental consent, directly from the insurer.” Id. § 2(d)(1). The provider

must tell the insurer that he gave the vaccine under the MCA. Id. Insurers may not send an

Explanation of Benefits for services provided under the authority of the MCA. Id. § 2(d)(2).

Third, a minor who receives a vaccine under the MCA may access his immunization records

without parental consent. Id. § 2(e).

Fourth, the MCA changes the guidelines for providers filling out the Certificate. See id.

§ 3(b)(2) (codified at D.C. Code § 38-602(a)(2)). If a minor’s parent has filed a religious

exemption for the child and the child elects to get a vaccine anyway, a healthcare provider must

leave blank part 3 of the Certificate. Id. Part 3 is the child’s immunization record. This serves

to obfuscate the child’s vaccination from his parents. But the MCA does not require providers to

leave blank part 3 of the Certificate for students whose parents filed a medical exemption. This

part of the MCA applies only to students whose parents filed a religious exemption to

vaccinations under § 38-506(1). For the students with a religious exemption, the provider must

send the immunization record directly to the school. Id. The MCA directs the school to keep the

record confidential. Id. Confidential from the religious parents, that is, because the school may

share it with D.C.’s Department of Health or the school-based health center. Id.

Plaintiffs in Booth (Booth Parents) are four parents who object on religious grounds to

vaccinating their minor children. See Booth Compl. ¶¶ 1–4, 143, 211, 239, 269. Collectively,

the Booth Parents have six children who range from 4 to 15 years old. Id. ¶¶ 1–4. Joshua Mazer

also objects on religious grounds to vaccinating J.D., his minor child. Mazer Am. Ver. Compl.

(Mazer Compl.) ¶ 49, ECF No. 24. J.D. is 16 years old. Id. ¶ 7. All Plaintiffs bring their claims

under 42 U.S.C. § 1983, which grants a right of action against the District for deprivations of

statutory and constitutional rights.

5 The Booth Parents argue that (1) federal law preempts the MCA, (2) the MCA violates

the Religious Freedom and Restoration Act of 1993 (RFRA), (3) the MCA conflicts with the

U.S. Constitution’s Free Exercise Clause, and (4) the MCA violates their fundamental right to

parent. See Booth Compl. ¶¶ 370–410. Mazer brings similar claims and also contends that the

MCA violates both his procedural due process rights and his fundamental right to make medical

decisions for J.D. See Mazer Compl. ¶¶ 84–122.

All Plaintiffs filed motions for a preliminary injunction. The District opposes the

motions and moves to dismiss both complaints. Those motions are now ripe. Because the cases

involve nearly identical challenges to the same law, the Court will resolve the preliminary

injunctions with a single memorandum opinion and will issue separate orders on each docket. 1

The Court finds that Plaintiffs have standing and have shown that they are likely to

succeed on the merits of their argument that the MCA is preempted. The Booth Parents are also

likely to succeed on the merits of their argument that the MCA violates their Free Exercise

rights. For purposes of the preliminary injunctions, the Court need not reach Plaintiffs’ other

arguments. See Capitol Hill Baptist Church v. Bowser, 496 F. Supp. 3d 284, 300 n.15 (D.D.C.

2020) (“Because the Church is likely to succeed on the merits of its RFRA claim, and

considering the interest in expeditiously resolving this motion, the Court does not reach the

Church’s constitutional claims now.”). The Court will grant the Booth Parents and Mazer

1 Courts in this district commonly follow this practice without formally consolidating the cases. See, e.g., Hyatt v. Iancu, 332 F. Supp. 3d 83, 88 n.1 (D.D.C. 2018) (“Although these cases were not consolidated for trial, because of their complex but nevertheless overlapping records and litigation histories, and common legal issues, the Court is issuing this single opinion concerning the merits in all three matters.”); Am. Bar Ass’n v. FTC, 430 F.3d 457, 466 (D.C. Cir. 2005) (“Although the district judge never formally ordered the two actions consolidated, he dealt with them together and ultimately disposed of them in a single opinion and order.”).

6 preliminary injunctions and will deny the District’s motions to dismiss as to their preemption

claims (for all Plaintiffs) and Free Exercise claim (for the Booth Parents only). 2

II. LEGAL STANDARDS

Different standards of review govern a motion for a preliminary injunction and a motion

to dismiss. “A preliminary injunction is an extraordinary remedy never awarded as of right.”

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A party seeking a preliminary

injunction must make a clear showing that four factors, taken together, warrant relief: likely

success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of

the equities in its favor, and accord with the public interest.” League of Women Voters of U.S. v.

Newby, 838 F.3d 1, 6 (D.C. Cir. 2016).

The Court then “balance[s] the strengths of the requesting party’s arguments in each of

the four required areas.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297

(D.C. Cir. 2006) (cleaned up). “If the showing in one area is particularly strong, an injunction

may issue even if the showings in other areas are rather weak.” Id. When the government is the

defendant, the last two factors merge because “the government’s interest is the public interest.”

Shawnee Tribe v. Mnuchin, 984 F.3d 94, 102 (D.C. Cir. 2021) (cleaned up).

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Hurd v.

Dist. of Colum., 864 F.3d 671, 678 (D.C. Cir. 2017) (cleaned up). A plaintiff must plead “factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court accepts the

2 Because Plaintiffs bring claims under the Constitution and federal law, the Court has federal question jurisdiction. See 28 U.S.C. § 1331.

7 complaint’s factual allegations as true and grants the plaintiff “all inferences that can be derived

from the facts alleged.” L. Xia v. Tillerson, 865 F.3d 643, 649 (D.C. Cir. 2017) (cleaned up).

The Court need not, however, credit “a legal conclusion couched as a factual allegation.” Iqbal,

556 U.S. at 678 (cleaned up). The Court considers “only the facts alleged in the complaint, any

documents either attached to or incorporated in the complaint[,] and matters of which [it] may

take judicial notice.” Hurd, 864 F.3d at 678 (cleaned up).

III. STANDING

The Court turns first to standing. To establish standing, Plaintiffs must allege: (1) that

they have suffered an injury in fact that is both concrete and particularized and actual or

imminent; (2) that the injury is fairly traceable to the District; and (3) that a favorable decision is

likely to redress the identified harm. See Sabre, Inc. v. DOT, 429 F.3d 1113, 1117 (D.C. Cir.

2005). “[A] party who seeks a preliminary injunction must show a substantial likelihood of

standing.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015).

Plaintiffs bring many claims and must show standing for each of them. See Davis v. Fed.

Election Comm’n, 554 U.S. 724, 734 (2008). Because the Court finds the NCVIA preempts the

MCA and that the MCA violates the Booth Parents’ Free Exercise rights, it will not assess

Plaintiffs’ other claims now. Thus, all Plaintiffs must show standing for their preemption claims

and the Booth Parents must also show standing for their Free Exercise claim.

A. The Booth Parents possess standing.

Start with the Booth Parents. They must show injury is imminent. The Court looks first

at how likely it is that their children will seek vaccinations without their parents’ consent and

then applies this separately to the injuries they assert under their preemption and Free Exercise

claims.

8 The Booth Parents allege that the District has created a “pressure-cooker environment,

enticing and psychologically manipulating [their minor children] to defy their parents and take

vaccinations against their parents’ wills.” Booth Compl. ¶ 72. According to them, the District is

“inundated” with an “intense . . . vaccine marketing campaign” to get vaccinated against

COVID-19. This campaign includes “billboards, posters, fliers, printed ads, online ads, websites

with links, emails, Twitter, and other forms of mass media.” Id. ¶¶ 76, 78. The campaign

promises incentives to vaccinated individuals “such as gift cards, ear buds, and chances to win

iPads, $25,000 scholarships, and other prizes.” Id. ¶ 81 (cleaned up). The Parents’ children are

aware of these incentives. Id. ¶ 82. All the children except the four-year-old “have access to the

internet and see [the District’s] media campaign.” Id. ¶ 75. The District has created a website

where children can see a list of vaccine walk-in clinics. Id. ¶ 86. Some clinics are in schools.

Id.

The Booth Parents say this pressure makes it likely their children will exploit the MCA to

get vaccinated behind their backs. The Court considers whether this is true of just one of the

Parents’ children, L.B., because if one plaintiff can show standing, the Court “need not consider

the standing of the other plaintiffs” who raise identical claims. Mtn. States Legal Found. v.

Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996). Because the Court determines that L.B. is likely

to imminently get a vaccine, his father, Victor Booth, has standing.

L.B. is 13 years old and attends Kipp Academy, a D.C. public charter school. Booth

Compl. ¶ 120. Booth alleges that L.B. is “a medically fragile child” who suffers from

autoimmunity, alopecia (severe hair loss), asthma, and eczema. Id. ¶ 122. Booth alleges that

these conditions appeared following several rounds of previous vaccinations. Id. ¶¶ 126-29.

After Booth stopped L.B.’s vaccinations, “his medical conditions improved, and his hair slowly

9 began to grow back.” Id. ¶ 136. Booth “has formed sincere religious objections to vaccinations.

He is of the sincere religious belief that he should not inject a foreign substance into his son’s

body that may harm him.” Id. ¶ 143. This includes both the COVID-19 vaccine and standard

childhood vaccines. Id. ¶ 144.

Booth alleges that L.B. feels singled out for being unvaccinated against COVID-19.

Because he is unvaccinated, the District once forced L.B. to quarantine for ten days after his

teacher tested positive for COVID-19. Id. ¶ 189. Not so for his vaccinated classmates. Id.

¶¶ 176, 190–91. L.B. became upset and cried as a result. Id. ¶ 191. During the winter, Kipp

Academy announced that unvaccinated children may not play sports. Id. ¶ 192. Baseball is vital

to L.B. Id. He “has become increasingly angry, agitated, and upset” as a result. Id. ¶ 193. L.B.

has told his father, “if I were offered a vaccine, I would take it.” Id. ¶ 198. Kipp has an on-site

vaccine clinic. Id. ¶ 91.

L.B. drew two pictures explaining his feelings. One of the drawings states: “I feel like

I’m being pressured into taking the vaccination because I feel like an outsider since everybody

else has the vaccine and not only that but I feel like the vaccination is some sort of hall pass

because I need the vaccination to go certain places which is very annoying.” Id. ¶ 195. The

second drawing appears below:

10 Booth Ex. 11, ECF No. 31-1.

The District responds that Booth’s alleged injury depends on “pure speculation” that L.B.

will receive the vaccine. Booth Defs.’ Mem. at 22, ECF No. 35. 3 The District claims that L.B.

has not said he will try to get vaccinated or that a D.C. official has ever offered vaccines to him.

Id. The District also notes that the MCA has been in effect since March 2021, L.B. has been in

school since August 2021, and the motion for preliminary injunction was filed in December

2021. Id. So even if L.B. feels pressured to get the vaccine, he has been able to withstand that

3 All page numbers refer to the pagination generated by the Court’s CM/ECF system.

11 pressure thus far. More, if L.B. caved and sought out a vaccine, he would still have to persuade a

healthcare provider that he met the standard for informed consent. Id. at 24. The District argues

that because Booth’s alleged injuries depend on the independent actions of third parties—both

L.B. and healthcare providers—his claims are too speculative to constitute an imminent injury.

To be sure, Booth engages in some hypothesizing about what L.B. will do. The Supreme

Court has warned that “threatened injury must be certainly impending to constitute injury in

fact,” and that “allegations of possible future injury” are not sufficient. Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 409 (2013) (cleaned up). But here L.B. has made it clear that he is on the

cusp of getting vaccinated.

And the District does not suggest what else L.B. must do to demonstrate an imminent

injury to Booth. The District says that Booth and the other Parents “have not alleged that their

children have expressed interest in seeking out vaccines.” Booth Defs.’ Mem. at 22. But L.B.

has said he would take the vaccine if offered it. See Booth Compl. ¶ 198. The District argues

L.B.’s statement depends on the District “walking the halls offering vaccines”—something it is

not doing and has no plans to do. Booth Defs.’ Mem. at 23. Yet the District has clinics across

the city, including one inside L.B.’s school. Booth Compl. ¶ 91. The location of the clinic,

combined with the incentives offered to students who get the vaccine, is nearly indistinguishable

from offering vaccines to students. Given L.B.’s statement, he could likely go to one of these

clinics any day.

Now consider Booth’s preemption argument. Courts have recognized a conflict between

state and federal law as a concrete injury that can create standing. See, e.g., State Farm Bank,

F.S.B. v. Dist. of Colum., 640 F. Supp. 2d 17, 21 (D.D.C. 2009). Booth argues that because the

12 MCA preempts the NCVIA, it deprives him of a VIS. See Booth Compl. ¶ 373–74. Still more,

the MCA tries to conceal a child’s vaccination status from his parents. Id. ¶ 374. The MCA thus

“subverts the protections” of the NCVIA. Id. The District responds that Booth is wrong because

there is no conflict between the MCA and the NCVIA. Booth Defs.’ Mem. at 25. Without a

conflict, there is no preemption. Without preemption, there is no injury. But because the Court

finds a conflict between the MCA and NCVIA, see infra Section IV.A.1, the Court determines

that there is an injury. And because the Court found that L.B. is very likely to try to get a

vaccine soon, the injury is imminent. 4

That leaves causation and redressability. The Court finds that the MCA causes Booth’s

injury because without it there is no avenue for minors to receive vaccines absent parental

consent. Removing the law would revert the District to the standard age of consent of 18. See

22-B D.C.M.R. § 600.1. Thus, the requested relief would redress Booth’s injuries. Booth has

therefore shown all three elements of standing as to his preemption claim. 5

4 The District argues that even if a parent could be harmed by failure to receive a VIS, that is not the case for Plaintiffs because during this litigation, Plaintiffs obtained the relevant VISs. See Booth Defs.’ Mem. at 25. But at the motions hearing, Plaintiffs’ counsel explained that the VISs change often and old VISs cannot fix the injury. See Hearing Tr. at 12:5–12, ECF No. 33 (Mazer docket). And in any event, 42 U.S.C. § 300aa-26(d) requires a healthcare provider to give a VIS to the legal representative of a child or the individual receiving the vaccine when a provider administers a vaccine. 5 The Booth Parents acknowledge that the NCVIA does not cover the COVID-19 vaccine. See Booth Pls.’ Mot. at 28, ECF No. 33-1. Instead, the Federal Food, Drug, and Cosmetic Act and the Public Readiness and Preparedness Act regulate the COVID-19 vaccine. Id. This threatens the Parents’ standing because although they contend that they object to all childhood vaccines, see, e.g., Booth Compl. ¶ 144, the bulk of their arguments concern COVID-19 vaccinations. If the NCVIA does not cover the COVID-19 vaccine, then the MCA’s regulation of the COVID-19 vaccine cannot conflict with the NCVIA. The District does not press this argument, leaving the Court with limited briefing on this point. For now, the Court is persuaded that Booth possesses standing because he objects to all childhood vaccines. As J.D.’s story below shows, there is a risk that healthcare providers could administer childhood vaccines even if a child goes into a vaccine clinic intending to get only the COVID-19 vaccine. See Mazer Compl. ¶ 54. More, at

13 Consider next Booth’s Free Exercise claim. Booth claims that because the MCA requires

providers to skip part 3 of the Certificate if a child has a religious exemption on file, the MCA

exhibits “hostility to a religion or religious viewpoint.” Booth Pls.’ Mot. at 38, ECF No. 33-1

(quoting Masterpiece Cakeshop, LTD v. Colo. Civ. Rights Comm’n, 138 S. Ct. 1719, 1731

(2018)). This hostility is “inconsistent with the First Amendment’s guarantee that our laws be

applied in a manner that is neutral toward religion.” Id. (quoting Masterpiece Cakeshop, 138 S.

Ct. at 1731). This injury is imminent because L.B. may try to get a vaccine any day. The injury

is traceable to the MCA because the MCA established the requirement that providers leave blank

part 3 of the Certificate for minors with religious exemptions. Enjoining the MCA would

therefore redress the injury.

Booth has thus established standing as to both his preemption and MCA claims. And

because Booth has shown standing, the Court “need not consider the standing of the other

plaintiffs” who raise the same claims. Mtn. States Legal Found., 92 F.3d at 1232.

B. Joshua Mazer has standing.

Now consider Mazer’s standing. When J.D. was five years-old, she suffered a severe

reaction to a vaccination that required urgent medical treatment. Mazer Compl. ¶ 47. Mazer

“has a sincerely held religious belief contrary to vaccination for J.D. since his religion prohibits

him from permitting acts that he believes would harm his child.” Id. ¶ 49. In classic teenager

fashion, despite knowing her father’s opposition, J.D. wants to be vaccinated.

In the spring of 2021, J.D., who lives in Maryland, visited a doctor in the District. Id.

¶ 50. She told the doctor that she wanted to attend a summer camp and needed to receive a

the motions hearing, the Booth Parents contended the FDA is likely to soon issue final approval to COVID-19 vaccines for children. Hearing Tr. at 32:17–24. Final approval would make COVID-19 vaccines subject to the NCVIA. See id.

14 vaccine to attend. Id. ¶ 51. She revealed that her parents did not consent to her receiving the

vaccine. Id. Although she went intending to only get one shot, the doctor encouraged her to get

two others. Id. ¶ 54. Mazer alleges that the doctor “coached” J.D. on how to lie to her parents

about the shots. Id. ¶ 55. J.D. was all set to get the vaccines, but when the doctor brought them

out, she got nervous and left without receiving them. Id. Mazer says that during the visit, J.D.

was not told of the vaccines’ risks and did not receive a VIS. Id. ¶ 56. Nor did the doctor or

anyone else ask her if she previously had a bad reaction to a vaccine. Id.

Mazer found out about J.D.’s visit to a doctor because J.D. put the doctor’s business card

on a bulletin board in her room. Id. ¶ 61. Although Mazer has explained why he opposes her

receiving a vaccine, J.D. has repeatedly told him that she needs to get various vaccines for her

school’s dance team performances, so that she can attend a summer camp, to secure a summer

job, and to attend the college of her choice. Id. ¶¶ 69, 71. J.D. has posted signs above her bed

about the importance of getting vaccines. Id. ¶ 79. Mazer states that J.D. has often

communicated her intention to get the vaccine. Id. ¶¶ 71–76.

Mazer says that J.D. has the means to obtain a vaccination if she chooses to. There is a

subway stop near her house and in front of the doctor’s office she visited. Id. ¶ 78. She has the

Uber and Lyft apps on her phone, and her older brother and friends have driven her to places in

the past and are willing to do so again. Id. ¶ 77. J.D. has the means to pay for an immunization

because she has a credit card. Id. And a doctor has shown a willingness to give her a vaccine.

Id. ¶¶ 81–82.

The District counters that Mazer has not shown any certainly impending injury. Mazer

Defs.’ Opp’n. at 18–21, ECF No. 19. It argues that Mazer “does not allege that J.D. still wants to

attend the summer camp, or still needs vaccination to do so, or even that the summer camp is not

15 yet over. He offers no other possible motivation for J.D. to seek vaccination again.” Id. at 19.

The District also contends that now that Mazer has explained to J.D. why he does not want her to

get vaccinated, she might not try again. Id. And finally, the District argues that the MCA only

applies to so-called “mature minors” who can meet the standard of informed consent. Because it

is not clear that J.D. could meet that standard, Mazer’s complaint relies on too many what-ifs.

See id. at 19–20.

None of the District’s arguments withstands scrutiny. The District says that Mazer has

not shown J.D. “still” wants to attend summer camp, but he alleged that very fact in his

complaint. See Mazer Compl. ¶ 71. Counsel confirmed this at the motions hearing. Hearing Tr.

at 75:23–25, ECF No. 33 (Mazer docket). And Mazer has offered another “possible motivation”

for J.D. to seek out a vaccination. He alleged that she wanted vaccines for her dance company

performances, her summer job, and to attend the college of her choice. Mazer Compl. ¶¶ 71–74.

Despite Mazer explaining why he does not want her to get vaccinated, she “frequently” brings it

up at the family dinner table and explains her desire to get one. Id. ¶ 80. And there is no reason

to doubt that J.D. would meet the standard for informed consent—after all, she did once before.

Based on all these facts, the Court finds the likelihood that J.D. will try to get at least one

vaccination is imminent.

Apply this finding to Mazer’s preemption claim. He alleges the same harm as the Booth

Parents: The NCVIA provides federal rights to parents relative to vaccines, and the MCA strips

them away. Id. ¶ 85. The harm is imminent because J.D. could try to get a vaccine at any time.

The injury is traceable to the MCA because it created the mechanism by which minors can get

vaccines without their parents’ permission. The requested relief would redress the injury

because Mazer asks the Court to enjoin the relevant part of the MCA. Mazer thus has standing

16 for his preemption claim.

IV. ANALYSIS

Because Plaintiffs have standing, the Court now considers each element of the showing

they must make to obtain a preliminary injunction.

A. Plaintiffs show likelihood of success on the merits.

First, Plaintiffs must show a likelihood of success on the merits. The Court bears in mind

that Plaintiffs “need not establish an absolute certainty of success.” Pop. Inst. v. McPherson, 797

F.2d 1062, 1078 (D.C. Cir. 1986). “[I]t will ordinarily be enough that the plaintiff has raised

questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair

ground for litigation and thus for more deliberative investigation.” Wash. Metro. Area Transit

Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977).

1. Plaintiffs are likely to succeed on their preemption claim.

Start with Plaintiffs’ preemption arguments. The Supremacy Clause establishes that

federal law “shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of

any State to the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2. Courts treat the District

as a state for preemption purposes. See CSX Transp., Inc. v. Williams, 406 F.3d 667 (D.C. Cir.

2005) (per curiam). A federal law may preempt state law in three ways, although these

categories “are not rigidly distinct.” Crosby v. Nat.’l Foreign Trade Council, 530 U.S. 363, 372,

n.6 (2000). First, the federal statute may contain an express preemption provision

“withdraw[ing] specified powers from the States.” Arizona v. United States, 567 U.S. 387, 399

(2012). Second, field preemption applies when a federal law’s “framework of regulation” is “so

pervasive . . . that Congress left no room for the States to supplement it or where there is a

federal interest . . . so dominant that the federal system will be assumed to preclude enforcement

17 of state laws on the same subject.” Id. (cleaned up). Third, conflict preemption occurs where a

federal statute conflicts with state law, either because “compliance with both federal and state

regulations is a physical impossibility,” or because the state law “stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.” Id. (cleaned

up).

Express preemption is not at issue. To be sure, the NCVIA expressly prohibits states

from enacting protections for vaccine manufacturers contrary to the NCVIA. See 42 U.S.C.

300aa-22(e). But Plaintiffs do not contend that this provision applies here. And the existence of

this provision does not foreclose other types of preemption. See, e.g., Hillman v. Maretta, 569

U.S. 483, 498 (2013) (“[T]he existence of a separate pre-emption provision does not bar the

ordinary working of conflict pre-emption principles.”) (cleaned up).

Field preemption also is not at issue. Mazer argues only that conflict preemption applies.

See Mazer Pl.’s Mot. at 26–28, ECF No. 4-1; Mazer Pl.’s Reply at 7–14, ECF No. 25. The

Booth Parents briefly invoke field preemption when they assert that the NCVIA occupies the

field of vaccine litigation and leaves “no space for . . . supplementation.” Booth Pls.’ Mot. at 27

(quoting Sickle v. Torres Adv. Enter. Sols., LLC, 884 F.3d 338, 347 (D.C. Cir. 2010)). But the

Booth Parents’ evidence for this assertion is that the MCA imposes duties on healthcare

providers that are “contradictory” to the duties imposed by federal law. Id. at 28. Thus, say the

Booth Parents, the MCA “conflicts” with the federal law. Id. This is an argument for conflict

preemption, not field preemption.

Although Plaintiffs make several arguments about conflict preemption, two of those

arguments suffice for the Court to find preemption. Plaintiffs’ first argument concerns the

interpretation of the phrase “of any child or to any other individual to whom such provider

18 intends to administer such vaccine” in 42 U.S.C. § 300aa-26(d). The second argument concerns

the meaning of the word “alternative” in the MCA.

Before reaching Plaintiffs’ arguments, consider a few principles of preemption analysis.

First, courts apply a presumption against preemption. In cases “in which Congress has legislated

. . . in a field which the States have traditionally occupied, . . . we start with the assumption that

the historic police powers of the States were not to be superseded by the Federal Act unless that

was the clear and manifest purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565 (2009)

(cleaned up); see also Sickle, 884 F.3d at 3146 (same).

Second, in preemption analysis, “the purpose of Congress is the ultimate touchstone.”

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). But although a court may look at Congress’s

purpose, “all preemption arguments[] must be grounded in the text and structure of the statute at

issue.” Kansas v. Garcia, 140 S. Ct. 791, 804 (2020) (cleaned up). “Congress’s authoritative

statement is the statutory text, not the legislative history.” Chamber of Comm. of U.S. v.

Whiting, 563 U.S. 582, 599 (2011) (cleaned up). “Invoking some brooding federal interest or

appealing to a judicial policy preference should never be enough to win preemption of a state

law; a litigant must point specifically to a constitutional text or a federal statute that does the

displacing or conflicts with state law.” Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1901

(2019) (lead opinion) (cleaned up).

With these principles in mind, the Court turns to Plaintiffs’ arguments.

The meaning of the phrase “of any child or to any other individual to whom such

provider intends to administer such vaccine.” Plaintiffs argue that the MCA places duties on

healthcare providers that contradict duties imposed by the NCVIA. They maintain that because

the MCA cuts parents out of the vaccination process, a parent will never receive the VIS. See

19 Mazer Compl. ¶¶ 42–44; Booth Compl. ¶¶ 325–35. They contend that this conflicts with 42

U.S.C. § 300aa-26(d), which requires healthcare providers to give a VIS to parents:

[E]ach health care provider who administers a vaccine set forth in the Vaccine Injury Table shall provide to the legal representatives of any child or to any other individual to whom such provider intends to administer such vaccine a copy of the [VIS], supplemented with visual presentations or oral explanations, in appropriate cases. Such materials shall be provided prior to the administration of such vaccine.

The District responds by zeroing in on the phrase “to any other individual to whom such

provider intends to administer such vaccine.” In the District’s telling, “if a mature minor may

receive a vaccine” under the MCA, “then he or she qualifies as ‘any other individual to whom’ a

healthcare provider intends to administer a vaccine” and thus “a provider may easily comply

with both laws.” Mazer Defs.’ Opp’n. at 27; see also Booth Defs.’ Mem. at 31–32 (same).

But the District’s interpretation has several problems. First, Congress’s reference to “the

legal representatives of any child” and then to “any other individual” conveys that when the

person receiving the vaccination is a child, the VIS must be given to the legal representative. 42

U.S.C. § 300aa-26(d). If Congress did not mean for the legal representative to receive a VIS

when his child receives a vaccine, then the phrase “the legal representatives of any child” would

be superfluous. All Congress would have needed to say is that a healthcare provider should give

a VIS “to any individual to whom such provider intends to administer such vaccine.” But it did

not do that. And courts shun statutory interpretations that result in surplusage. See Torres v.

Lynch, 578 U.S. 452, 463 n.8 (2016) (“[O]ur ordinary assumption [is] that Congress, when

drafting a statute, gives each provision independent meaning.”); see also Antonin Scalia and

Bryan J. Garner, Reading Law: The Interpretation of Legal Texts 176–78 (2012) (“Because legal

drafters should not include words that have no effect, courts avoid a reading that renders some

20 words altogether redundant . . . [W]ords with no meaning—language with no substantive

effect—should be regarded as the exception rather than the rule.”).

Second, the District’s interpretation renders the word “other” meaningless. The most

natural reading is that, by placing the word “other” before “individual,” Congress intended to

exclude “any child.” The ordinary meaning of the word “other” makes this clear. See Miss.

Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 47 (1989) (“We have often stated that in the

absence of a statutory definition we start with the assumption that the legislative purpose is

expressed by the ordinary meaning of the words used.”); OED Online, Other def. A.5 (defining

“other” as “[s]eparate or distinct from that or those already specified or implied; different;

(hence) further, additional”); 6 Am. Her. Dict., Other def. 1.a (defining “other” as “[b]eing the

remaining one of two or more”). 7 Thus, “any other individual” cannot include “any child”

because the use of the word “other” means that “individual” is “separate or distinct from” or

“additional” to “child.” The District’s conclusion makes sense only if one reads “other” out of

the statute. Because courts avoid interpretations that result in surplusage, Plaintiffs have the

better statutory reading.

If “any other individual” excludes “child,” then the question naturally arises: Who is a

child? Congress provided no definition in the NCVIA. The District contends that the Court

should define “child” based on state law. See Mazer Defs.’ Opp’n at 28 (“A reasonable

interpretation is that State law, and specifically the State’s medical consent law, should be

6 Available at https://www.oed.com/view/Entry/133219?isAdvanced=false&result=1&rskey= HI3GrA& (last visited March 10, 2022). 7 Available at https://www.ahdictionary.com/word/search.html?q=other (last visited March 10, 2022).

21 deferred to for purposes of defining who is a minor.”) (quoting CDC, VIS Frequently Asked

Questions 8); Booth Defs.’ Mem. at 32 (same). Because the MCA says that an informed minor as

young as 11 can receive the vaccine, the District says such a person is not a “child” for purposes

of the NCVIA. Thus, if a healthcare provider gives the VIS to the minor at the time of the

vaccination, there is no conflict between the NCVIA and the MCA.

This interpretation has some appeal and presents a closer call than the District’s first

statutory interpretation argument. The Supreme Court has held that where a federal statute

leaves a term undefined and the term references a familial relationship, a court should look to

state law. See Seaboard Air Line Ry. v. Kenney, 240 U.S. 489 (1916) (“[W]ho are next of kin is

determined by the legislation of the various states to whose authority that subject is normally

committed, [so] it would seem to be clear that the absence of a definition in the act of

Congress plainly indicates the purpose of Congress to leave the determination of that question to

the state law.”); see also De Sylva v. Ballentine, 351 U.S. 570, 580 (1956) (“[T]here is no federal

law of domestic relations, which is primarily a matter of state concern.”). And the Centers for

Disease Control and Prevention have arguably endorsed the District’s approach. See CDC, VIS

Frequently Asked Questions. 9

8 Available at https://www.cdc.gov/vaccines/hcp/vis/about/vis-faqs.html (last visited March 10, 2022). 9 The District contends the Court should grant Chevron deference to the CDC’s answers to frequently asked questions (FAQ). See Booth Defs.’ Reply at 13 n.4, ECF No. 42. But Chevron deference does not apply to informal interpretations like this one. See Christensen v. Harris Cty., 529 U.S. 576, 587 (2000) (“Interpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference.”). More, the CDC’s FAQ give 18 as an example of the age of consent for vaccinations, a very different proposition than the District’s 11-year-old line. See CDC, VIS Frequently Asked Questions, available at https://www.cdc.gov/vaccines/hcp/vis/about/vis-faqs.html (last visited March 10, 2022).

22 But this interpretation also has problems. First, it conflicts with other Supreme Court

guidance to start “with the general assumption that in the absence of a plain indication to the

contrary, . . . Congress when it enacts a statute is not making the application of the federal act

dependent on state law.” Holyfield, 490 U.S. at 43. There is no “plain indication” that Congress

intended to make the NCVIA dependent on state law—in fact, quite the contrary. Congress

knew how to define an NCVIA term with reference to state law because it did so for “legal

representative.” See 42 U.S.C. § 300aa-33(2) (defining “legal representative” to mean “a parent

or an individual who qualifies as a legal guardian under State law”). This suggests Congress did

not want to define “child” with reference to state law. See Scalia and Garner, supra, at 107

(explaining the “Negative-Implication Canon . . . The expression of one thing implies the

exclusion of others”).

Second, the District’s interpretation would impair the uniform application of the NCVIA.

Jerome v. United States, 318 U.S. 101, 104 (1943) (“[T]he application of federal legislation is

nationwide and . . . at times [a] federal program would be impaired if state law were to

control.”); see also Holyfield, 490 U.S. at 43 (instructing courts to assess whether Congress

intended a federal law to have “uniform nationwide application”).

Recall that Congress passed the NCVIA to “stabilize the vaccine market.” Bruesewitz,

562 U.S. at 228. Before the NCVIA, lawsuits under state law were driving vaccine

manufacturers from the market. Id. at 227. At the same time, parents suing vaccine

manufacturers had trouble obtaining compensation. Id. Many parents decided it was better not

to vaccinate their children at all. Id. So, in a “quid pro quo,” Congress provided for “[f]ast,

informal adjudication . . . made possible by the Act’s Vaccine Injury Table” while also

conferring “significant tort-liability protections” on vaccine manufacturers. Id. at 228–29. Thus,

23 Congress preempted the patchwork of state remedies with a uniform federal system. Defining

“child” using fifty different state definitions would erode the stability the NCVIA provides to the

vaccine market. Using an ordinary understanding of “child” advances that goal. This problem is

highlighted by J.D., who cannot get vaccinated in her home state of Maryland without parental

consent but can now slip into the District and be considered a “mature minor.”

Third, the District’s interpretation conflicts with the statute’s structure and purpose. Two

crucial exchanges of information lie at the heart of the NCVIA. The first is the exchange of

information from parent to doctor. Healthcare providers recommend against vaccinations if

individuals reacted poorly to past immunizations. See Booth Compl. ¶ 332. A VIS describes the

risks of certain vaccines and explains when they are contraindicated. See 42 U.S.C. § 300aa-26,

et seq.; Booth Compl. ¶ 332. But as J.D.’s story shows, a child—even a “mature” one—is

unlikely to know or remember the reactions she had to vaccines as an infant. By removing the

parent from the vaccine decision, the MCA undercuts a key purpose of the VIS and a safety

check before the vaccination. J.D.’s doctor is likely to authorize a vaccination without having an

accurate understanding of her risk profile.

The second exchange of information flows from the doctor to the child’s parent. The VIS

not only warns the parent of what complications to look out for, but it also tells him how to file a

complaint with the Program. See Booth Compl. ¶¶ 330–35. Recall that the NCVIA allows only

parents and legal guardians to make claims for vaccine injuries under the Program. See 42

U.S.C. § 300aa-11(b)(1) (stating that the only people who can petition for compensation from the

Program are persons who have sustained vaccine-related injuries or “the legal representative of

such person if such person is a minor”). 10 If the parent of a vaccinated child does not receive a

10 Although the VIS must be given to the legal representative of a child, see 42 U.S.C. § 300aa-

24 VIS, how is the parent supposed to know to file a claim in the Program—a claim that only the

parent can file?

Compounding this challenge, the MCA encourages children to deceive their parents.

Once a child has gone behind her parents’ backs to get a vaccine, what is she supposed to do if

she has a negative reaction? Some children might tell their parents; others very well might be

afraid and try to hide their actions. Besides the obvious medical risk such a situation entails, this

throws a wrench in the NCIVA’s goal of “[f]ast, informal adjudication” of vaccine injuries.

Bruesewitz, 562 U.S. at 228. This fast adjudication depends on rapid identification of injuries.

For example, the Vaccine Injury Table says that for “Vaccines containing tetanus toxoid,”

anaphylaxis could occur in less than four hours. See Health Res. and Svcs. Admin., Vaccine

Injury Table. 11 A shoulder injury related to vaccine administration could manifest within 48

hours. Id. A parent who did not know his child had been vaccinated would not know to be on

the lookout for adverse reactions. Nor would he have any reason to suspect that an adverse

reaction, if he noticed one, was because of the vaccine. More, for a child to receive

compensation under the Program, her legal guardian must file a claim within three years. 42

26(d), a minor cannot file a claim under the Program, see id. § 300aa-11(b)(1). At the motions hearing, the parties disputed who counts as a minor under the NCVIA (which does not define the term). See Hearing Tr. 17:3–18:23 (Plaintiffs contending “minor” means 18); 44:25–45:16 (District arguing “minor” should be interpreted based on the MCA). Neither party could provide a definitive answer, nor could either party explain why the NCVIA uses the term “child” in one section and “minor” in another. In any event, a minor cannot file a claim. Presumably, this is true even of “mature” minors. At summary judgment, the District might be able to show that “minor” means someone under age 18. For now, though, the District’s general minor health consent regulation guides the Court. This regulation says that “[a]ny person who is eighteen (18) years of age or older may consent to the provision of health services for himself or herself.” See 22-B D.C.M.R. § 600.1. 11 Available at https://www.hrsa.gov/sites/default/files/vaccinecompensation/ vaccineinjurytable.pdf (last visited March 9, 2022).

25 U.S.C. § 300aa-16(a)(2). The NCVIA does not allow a minor to file a claim and makes no

provision for tolling of the statute of limitations until the age of majority. See id.; id. § 300aa-

11(b)(1)(A).

True, the VIS is not the only way a parent could learn that his child got vaccinated. Nor

is a VIS the only way to learn about the Program. The internet, word-of-mouth, and—of

course—lawyers could all be sources of information. But the Court’s task when engaged in

statutory interpretation is to try to make sense not only of the statutory provision at issue, but of

the entire statute. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“In ascertaining

the plain meaning of the statute, the court must look to the particular statutory language at issue,

as well as the language and design of the statute as a whole.”). “[T]here can be no justification

for needlessly rendering provisions in conflict if they can be interpreted harmoniously.” Scalia

and Garner, supra, at 180. Taken as a whole, the NCVIA shows Congress did not intend for

minors to take control of their own vaccination decisions. The District’s interpretation of “child”

cuts parents out of the vaccination process and so deviates from Congress’s intent.

***

To be sure, this interpretive exercise is a close call. Both sides advance persuasive

arguments. But even if the Court is wrong that the ordinary meaning of “child” applies instead

of state law, the District has a final problem. 12 A court may not use state law to define a term in

a federal law in a way that beggars belief. See De Sylva, 351 U.S. at 581 (holding that defining a

12 Plaintiffs do not point to a federal common law definition of “child.” Nor is that surprising given that domestic relations are “primarily a matter of state concern. De Sylva, 351 U.S. at 580. But at the motions hearing, the District pointed to the implementing regulations for the Public Readiness and Preparedness Act, which regulates COVID-19 vaccines. See Hearing Tr. 64:5– 17. The regulations define child as an individual “18 years of age or younger.” 42 C.F.R. § 110.3(e)(1)(i).

26 term in a federal law based on state law “does not mean that a State would be entitled to use the

word . . . in a way entirely strange to those familiar with its ordinary usage”). Even the District

admitted there are limits to how a state can define “child.” See Hearing Tr. at 43:14–44:8. And

the Court doubts most parents consider their eleven-year-olds anything but children. See, e.g.,

Booth Compl. ¶ 36 (D.C. Council Member stating at a meeting to consider the MCA: “I have a

twelve-year-old son who can barely put together a five-page paper, or finish his homework on

time, or be up late at night playing Fortnite—making decisions about his health. And so, for us

to circumvent that process is very worrisome to me[.]”). Perhaps states have some latitude to

define “child” under the NCVIA, but the MCA stretches beyond the bounds of reason.

Plaintiffs viably interpret the word “child.” The District does not. The Court therefore

accepts Plaintiffs’ interpretation.

The meaning of the word “alternative.” Plaintiffs argue that the MCA also conflicts with

the NCVIA’s requirement to provide a VIS. See Booth Pls.’ Mot. at 21–24; Mazer Pl.’s Reply at

12–13. Recall that the NCVIA requires healthcare providers to give the VIS to a child’s legal

representative or the person whom the provider is vaccinating. See 42 U.S.C. § 300aa-26(d).

The VIS is a specific document produced by HHS for each vaccine on the Vaccine Injury Table.

See id. § 300aa-26(a). In contrast, the MCA says that the D.C. Department of Health “shall

produce one or more age-appropriate alternative vaccine information sheets, which shall be

made available before vaccination of minors to support providers for use in the informed consent

process.” MCA § 2(c) (emphasis added). Plaintiffs argue that the MCA improperly seeks to

replace the VIS with an “age-appropriate alternative” VIS.

The District responds that “[m]erely because a law mandates an additional source of

information cannot mean—without more—that the law implicitly rejects any other information.”

27 Booth Defs.’ Mem. at 33–34. The District acknowledges that “the use of the word ‘alternative’

here may have been imprecise.” Id. at 34. But it contends that a mere imprecision “cannot carry

the weight plaintiffs place on it—it does not conflict with federal requirements.” Id.

True, finding preemption based on one word is a tall order. But the District chose the

word—not Plaintiffs or the Court. And contrary to the District’s contention, an “alternative”

age-appropriate VIS is not “an additional source of information.” Id. It is an exclusive source.

“Alternative” has an unambiguous meaning. OED Online, Alternative def. A.4 (defining

“alternative” as “[o]f two things: such that one or the other may be chosen, the choice of either

typically involving the rejection of the other.”) 13; Am. Her. Dict., Alternative def 1.b (defining

“alternative” as “[b]eing one of two mutually exclusive choices or courses of action”) 14. The

natural way to read the statute is that healthcare providers in the District are to provide the age-

appropriate VIS instead of the federal VIS—not along with it.

“We have held that state and federal law conflict where it is impossible for a private party

to comply with both state and federal requirements.” PLIVA, Inc. v. Mensing, 564 U.S. 604,

617–18 (2011) (cleaned up). Such is the case here. The District could have offered evidence

that healthcare providers in the District provide minors with both the VIS and the District-

created, age-appropriate VIS. And perhaps it will at summary judgment. But it did not at this

stage. Indeed, the only evidence the Court has before it now points in the other direction. See

Mazer Compl. ¶ 56 (stating J.D. did not receive a VIS). Thus, the Court finds Plaintiffs’ reading

of the Act is the better one.

13 Available at https://www.oed.com/view/Entry/5803?redirectedFrom=alternative& (last visited March 9, 2022). 14 Available at https://www.ahdictionary.com/word/search.html?q=alternative (last visited March 9, 2022).

28 ***

Two final arguments by the District—applicable to both preemption arguments discussed

above—bear brief mention. First, the District argues that when Congress enacted the NCVIA,

many states had laws that allowed minors to consent to medical treatment without parental

knowledge or assistance. Surely, says the District, Congress did not mean to preempt all these

laws—at least not without explicitly saying so. See Booth Defs.’ Mem. at 33; Mazer Defs.’

Opp’n at 28–29. But the District does not contend that any of these state laws allowed minors to

consent to vaccines. As the District’s own regulations show, states set different ages of consent

for different medical procedures. See 22-B D.C.M.R. §§ 600, et seq. (establishing, for example,

17 as the age to consent to blood donation, but “any age” to consent to treatment for substance

abuse). 15

Second, the District argues “other federal healthcare law expressly acknowledges and

incorporates the ‘mature minor’ doctrine found in most State law.” Booth Defs.’ Mem. at 37; see

also Mazer Defs.’ Opp’n at 29 (same). The District contends this proves “Congress plainly

intends to share the field” of vaccine regulation. Booth Defs.’ Mem. at 38. But the District’s

only example is Health Insurance Portability and Accountability Act regulations that reference

the mature minor doctrine. See Booth Defs.’ Mem. at 37; Mazer Defs.’ Opp’n at 29 (same).

15 An amici curiae brief submitted by organizations including the American Academy of Pediatrics and the American Medical Association claims 14 states “have minor consent laws that specifically address immunization, authorize certain minors to consent to ‘any’ medical care, or have expressly reaffirmed in the past year that their laws permit minors to self-consent to vaccination.” Br. of Amici Curiae American Academy of Pediatrics, et al, at 28, ECF No. 38. Fair enough. But the Court’s holding does not rule out the possibility that some vaccine-specific minor consent laws could coexist with the NCVIA. In any event, neither the District nor amici discuss how these laws treat the VIS and religious exemptions—factors crucial to the Court’s analysis of the MCA.

29 Regulations do not convey congressional intent.

For all these reasons, the Court finds that Plaintiffs will likely succeed on the merits of

their claim that the NCVIA preempts the MCA.

2. The Booth Parents are likely to succeed on their Free Exercise claim.

Turn next to the Booth Parents’ Free Exercise claim. 16 The First Amendment states that

“Congress shall make no law respecting an establishment of religion or prohibiting the free

exercise thereof.” U.S. Const. amend. I. But although the Constitution protects religious

exercise, it does not say how a court should analyze a claim that the government is infringing on

free exercise. And the parties disagree about which standards should apply.

Plaintiffs argue that the Court should examine whether the MCA is neutral and generally

applicable. See Booth Pls.’ Mot. at 38. Under this familiar standard, laws that burden an

individual’s ability to practice his religion are subject to strict scrutiny unless they are neutral

and generally applicable. See Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520,

531 (1993). A law lacks neutrality when “the object of [the] law is to infringe upon or restrict

practices because of their religious motivation.” Id. at 533. A law “lacks general applicability if

it prohibits religious conduct while permitting secular conduct that undermines the government’s

asserted interests in a similar way.” Fulton v. City of Phila., 141 S. Ct. 1868, 1877 (2021). A

court should look particularly closely at whether the law selectively targets religion. See Lukumi,

16 Mazer only asks that the Court enjoin the District from implementing and enforcing § 2 of the MCA. See Mazer Mot. for Prelim. Inj., ECF No. 4 at 1. Section 2 of the MCA adds § 600.9 to the D.C. Municipal Regulations to permit children 11 and older to consent to receive a vaccine without their parents’ knowledge. See id. Mazer does not ask the Court to enjoin § 3 of the MCA, which tells healthcare providers to leave blank part 3 of the Certificate for children with a religious exemption. See id. Section 3 is the subject of the Court’s Free Exercise analysis. Thus, the Court examines likelihood of success on the merits of the Free Exercise claim only for the Booth Parents.

30 508 U.S. at 542 (“All laws are selective to some extent, but categories of selection are of

paramount concern when a law has the incidental effect of burdening religious practice.”).

The District pushes back. It argues that the Court should engage in a two-step analysis.

It says that the Court should examine whether Plaintiffs have made a “threshold showing” that “a

law or regulation imposes a substantial, as opposed to an inconsequential, burden on the

litigant’s religious practice before the Free Exercise Clause is implicated.” Booth Defs.’ Mem. at

51 (cleaned up). Only if the Court finds that Plaintiffs have met this standard should it examine

whether the MCA is neutral and generally applicable. See id.

The District invokes the wrong standard. The case it points to, Levitan v. Ashcroft, 281

F.3d 1313 (D.C. Cir. 2002), does say a plaintiff must make a “threshold showing” that “a law or

regulation imposes a substantial, as opposed to inconsequential, burden on the litigant’s religious

practice.” Levitan, 281 F.3d at 1320. But Levitan involved a neutral and generally applicable

law: A ban on federal prisoners consuming alcohol. Id. at 1315–16. A religious prisoner who

wanted to use wine in religious services objected. Id. Crucially, the religious prisoner did not

allege that the prison treated another category of prisoners more favorably. See id.

Not so here. The Booth Parents argue the MCA burdens them because it orders

healthcare providers to leave blank part 3 of the Certificate for all children with a religious

exemption on file. See Booth Pls.’ Mot. at 38. More, they allege the MCA “is clearly hostile to

religion, because whether the vaccination record is left ‘blank’ is based solely on the existence of

the parents’ religious exemption.” Booth Pls.’ Reply at 37, ECF No. 39; see also id. at 34

(“[P]arents with medical exemptions are treated differently: their decisions are not ‘singled out,’

nor are they ‘targeted’ like parents who claim a religious exemption[.]”).

31 When a plaintiff argues a law is not neutral and generally applicable, he needs to show a

burden, but not a substantial one. See Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d

144, 170 (3d Cir. 2002) (“Under [Employment Div. v. Smith, 494 U.S. 872 (1990)] and

Lukumi . . . there is no substantial burden requirement when government discriminates against

religious conduct.”); Hartmann v. Stone, 68 F.3d 973, 979 n.4 (6th Cir. 1995) (citing Lukumi to

apply strict scrutiny while finding that plaintiffs “need not demonstrate a substantial burden on

the practice of their religion”); Brown v. Borough of Mahaffey, 35 F.3d 846, 849 (3d Cir. 1994)

(“The rare cases which address acts or laws which target religious activity have never limited

liability to instances where a substantial burden was proved by the plaintiff.”) (cleaned up).

More, recent Supreme Court decisions have applied strict scrutiny to non-neutral and

generally applicable laws without asking whether these laws impose substantial burdens. See

Fulton, 141 S. Ct. 1868. at 1876–77; see also Lukumi, 508 U.S. at 531–46; Roman Cath. Diocese

of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam) (finding that a law restricting

religious gatherings for public health reasons was not neutral or generally applicable and was

subject to strict scrutiny despite no finding of a substantial burden); Tandon v. Newsom, 141 S.

Ct. 1294, 1296 (2021) (per curiam) (“[G]overnment regulations are not neutral and generally

applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they

treat any comparable secular activity more favorably than religious exercise.”) (emphasis

added).

The Court thus proceeds to evaluate whether the law is neutral and generally applicable.

Start with neutrality. Supreme Court precedent distinguishes between facial and substantive

neutrality. “A law lacks facial neutrality if it refers to a religious practice without a secular

meaning discernable from the language or context.” Lukumi, 508 U.S. at 533 (1993). A court

32 may find a facially neutral law non-neutral in application if the law covertly targets religious

beliefs. See id. at 534. Because the MCA “refers to a religious practice” and thus is not facially

neutral, the Court need not ask whether the law covertly targets religion. Id. at 533; see MCA

§ 3(b)(2) (mentioning religious exemptions by name). 17

Nor is the law generally applicable. Recall that D.C. Code § 38-506 provides for

exemptions from childhood vaccinations for religious and medical reasons. But the MCA’s

directive to leave blank part 3 of the Certificate only applies to parents who have filed religious

exemptions for their children. So if a child whose parent filed a religious exemption goes behind

his parents’ back and gets a vaccine, the healthcare provider will leave blank part 3 of the

Certificate and will submit the immunization record directly to the school. See MCA § 3(b)(2).

The MCA orders the school to keep that immunization record confidential. Id. But if a child

whose parent filed a medical exemption gets a vaccine, the MCA does not instruct the healthcare

provider to leave blank part 3 of the Certificate. Nor does the MCA direct the school to keep the

immunization record confidential. This puts religious parents at an informational disadvantage

as compared to non-religious parents.

The District does not explain why the MCA instructs healthcare providers to leave part 3

of the Certificate blank for parents with a religious exemption but not for parents with a medical

one. Instead, it asserts that “[m]edical exemptions are based on the provider’s determination that

a vaccine is not medically recommended, and, therefore, providers would not be in the position

of administering a vaccine under the Act.” Booth Defs.’ Reply at 23 n.8, ECF No. 42. The

17 Contrary to the District’s contention, Plaintiffs need not prove that the MCA “evinces hostility similar to Masterpiece [Cakeshop].” Booth Defs.’ Mem. at 53. Even absent proof of animus, the Supreme Court said in Smith that a law will not qualify as neutral if a religious exercise is the “object” of a law and is not just “incidental[ly]” affected by it. Smith, 494 U.S. at 878. Because the MCA specifically calls out religious exemptions, religious exercise is its “object.” Id.

33 District’s meaning is not entirely clear, but it appears to be saying that the Act does not affect

medical exemptions. That, however, is exactly the problem. See Lukumi, 508 U.S. at 542. (“All

laws are selective to some extent, but categories of selection are of paramount concern when a

law has the incidental effect of burdening religious practice.”). The MCA burdens religious

practice by withholding from religious parents information available to secular parents who file a

medical exemption for their children. Thus, the law is not generally applicable.

The District has one more argument. It contends that it is not required to provide any

religious exemptions. See Booth Defs.’ Mem. at 52. The District cites Prince v. Massachusetts,

321 U.S. 158, 166–67 (1944), for the proposition that a plaintiff “cannot claim freedom from

compulsory vaccination for [his] child more than for himself on religious grounds.” So, says the

District, it should not be penalized for providing a qualified religious exemption when it was

never required to provide one to begin with.

But the law at issue in Prince is different from the District’s law. There was no

allegation in Prince, as there is here, that the law targeted religious parents. 18 When the

government makes “a value judgment that secular (i.e., medical) motivations” for special

treatment are “important enough to overcome” its interest in uniformly applying a policy “but

that religious motivations are not,” this “raises concern.” See Frat.’l Ord. of Police Newark

Lodge No. 12 v. City of Newark, 170 F.3d 359, 366 (3d Cir. 1999) (Alito, J.). The singling out of

religion triggers strict scrutiny. Lukumi, 508 U.S. at 531; see also Frat.’l Ord. of Police, 170

F.3d at 366 (“[W]hen the government makes a value judgment in favor of secular motivations,

18 The District cites two other cases for the proposition that the Constitution does not require religious exemptions to vaccination mandates: Phillips v. City of New York, 775 F.3d 538 (2d Cir. 2015), and Workman v. Mingo Cty. Bd. of Educ., 419 F. App’x 348 (4th Cir. 2011). See Booth Defs.’ Mem. at 52–53. But neither case involved a governmental authority targeting religious parents. Thus, like Prince, these cases do not help the District.

34 but not religious motivations, the government’s actions must survive heightened scrutiny.”).

When strict scrutiny applies, the government must show its burden on religion is “justified by a

compelling governmental interest and [is] narrowly tailored to advance that interest.” Lukumi,

508 U.S. at 531–32. The MCA does not survive this test.

The District claims it needed the MCA “so that the District can move towards a high

enough immunization rate to achieve herd immunity—or 95% immunity—from diseases such as

measles.” Booth Defs.’ Mem. at 17 (quoting the Council of the District of Columbia, Comm. on

Health, Report on Bill 23-0171, at 1, 2 (Oct. 7, 2020)). Preventing the spread of communicable

disease is a compelling governmental interest. See Cuomo, 141 S. Ct. at 67. But the District

undermines that compelling interest by treating medical and religious exemptions differently

with no explanation for why it does so. See Fulton, 141 S. Ct. at 1877 (“A law also lacks general

applicability if it prohibits religious conduct while permitting secular conduct that undermines

the government’s asserted interests in a similar way.”) (emphasis added).

For the same reason, even assuming the District has shown a compelling interest, the

MCA is not narrowly tailored. Recall that D.C. Code § 38-506(2) allows an exemption for

anyone able to obtain a “written certification by a private physician” that a vaccination is

“medically inadvisable.” Id. What does “medically inadvisable” mean? The D.C. Code does

not define the phrase. Nor does the District interpret it. The ambiguity leaves one guessing

whether something as simple as the risk of a rash or shoulder pain could be enough to exempt an

individual from vaccination. See Booth Compl. ¶ 307 (listing rashes and shoulder pain as

injuries for which the Program has paid out compensation). And it leaves the Court with no

option at this stage of the litigation except to conclude that the MCA is not narrowly tailored to

achieve the District’s interest. See Frat’l Ord. of Police, 170 F.3d at 367 (“We are at a loss to

35 understand why religious exemptions threaten important city interests but medical exemptions do

not.”); see also Lukumi, 508 U.S. at 546 (holding that a law that is too broad or too narrow is not

narrowly tailored).

In coming to this conclusion, the Court does not rule out that the District could make the

necessary showing to satisfy strict scrutiny at summary judgment. But at this stage, the District

has not made that showing. Because the Booth Parents have credibly alleged that the MCA

targets religious parents and the District has not shown that the MCA is narrowly tailored to meet

a compelling interest, they are likely to succeed on their Free Exercise claim. 19

B. Plaintiffs are likely to suffer irreparable injury absent injunctive relief.

The Court next considers whether Plaintiffs have shown that they will suffer irreparable

injury absent injunctive relief. See League of Women Voters, 838 F.3d at 6. The Booth Parents

easily satisfy this burden because “[t]he loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable injury.” Cuomo, 141 S. Ct. at 67 (cleaned

up). The conclusion that they are likely to succeed on the merits of their Free Exercise claim

thus also suffices to show that they will be irreparably harmed without injunctive relief.

More, both the Booth Parents and Mazer have shown they are likely to suffer irreparable

injury absent injunctive relief for their preemption claims. They must show “(1) that the harm is

certain and great, actual and not theoretical, and so imminent that there is a clear and present

19 The District argues that the Booth Parents only challenge the MCA on its face and therefore must show that there is “no set of circumstances . . . under which [the MCA] would be valid.” Booth Defs.’ Mem. at 28 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). But they also made an as-applied challenge. See Booth Compl. ¶ 207. More, there is no reading of the MCA that does not discriminate against religious parents. And the Supreme Court has granted facial challenges where the law is facially discriminatory to religion without applying the “no set of circumstances” test. See, e.g., Lukumi, 508 U.S. at 532, 547 (voiding the entire law without applying the “no set of circumstances” test because “the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs”).

36 need for equitable relief to prevent irreparable harm; and (2) that the harm is beyond

remediation.” Capitol Hill Baptist, 496 F. Supp. 3d at 301 (cleaned up). Plaintiffs have met the

first requirement because they have shown that L.B. and J.D. are likely to get a vaccine any day.

And they meet the second requirement because administration of a vaccine is “beyond

remediation”—it cannot be undone. Id.

C. The balance of the equities and the public interest support granting the preliminary

injunction.

Finally: Have Plaintiffs shown that the balance of the equities and the public interest

supports the Court granting relief? These factors merge when, as here, the government is the

party opposing the injunction. Nken v. Holder, 556 U.S. 418, 435 (2009).

The balance of the equities and the public interest favor granting relief. The public has

an interest in upholding the integrity of Congress’s laws and honoring the free exercise of

religion. Of course, the public also has an interest in controlling the spread of disease. But by its

own admission, “religious exemptions are generally rare in the District.” Booth Compl. ¶ 54

(quoting the District’s Immunization Attendance Policy).

And although the District relies heavily on the COVID-19 pandemic to justify its need for

the MCA, the pandemic was not its impetus. See Booth Defs.’ Mem. at 16 (“The [MCA] was

introduced on May 5, 2019, on the heels of a measles outbreak[.]”). More, COVID-19 infections

in the District are trending downward. See Johns Hopkins Univ. School of Med., Coronavirus

Res. Ctr., District of Columbia. 20 Nearly 93% of the District is fully vaccinated—a higher share

20 Available at https://coronavirus.jhu.edu/region/us/district-of-columbia (last visited March 17, 2022).

37 of the population than any state. See Johns Hopkins Univ. School of Med., Coronavirus Res.

Ctr., Understanding Vaccination Progress. 21

Enjoining the MCA will not prevent children from being vaccinated. Nor will it prevent

the District from continuing to advertise the importance of vaccines, incentivizing vaccinations,

and setting up vaccine clinics in schools. The only impact will be that children will be unable to

decide to get vaccinations without their parents’ consent. If the District believes this will greatly

endanger children’s health and welfare, it can present that evidence at summary judgment.

V. CONCLUSION

Vaccines are “one of the greatest achievements” of public health in the 20th century.

Bruesewitz, 562 U.S. at 226. So Congress decided to step in to protect vaccine manufacturers

with the NCVIA. States and the District are free to encourage individuals—including children—

to get vaccines. But they cannot transgress on the Program Congress created. And they cannot

trample on the Constitution.

Plaintiffs have shown that the NCVIA likely preempts the MCA and the Booth Parents

have shown that the MCA likely violates their Free Exercise rights. The Court will grant

Plaintiffs’ motions for preliminary injunctive relief and will deny the Districts’ motions to

dismiss as to the preemption claims (for all Plaintiffs) and the Free Exercise claim (for the Booth

Parents). Separate orders will issue.

2022.03.18 15:51:42 -04'00' Dated: March 18, 2022 TREVOR N. McFADDEN, U.S.D.J.

21 Available at https://coronavirus.jhu.edu/vaccines/us-states (last visited March 17, 2022).