Maine Rules PREP Act Immunizes Caregivers from Traditional Legal Protections

In a March 4, 2025, decision (Jeremiah Hogan et al. v. Lincoln Medical Partners et al.), the Maine Supreme Judicial Court ruled that staff who administered a Covid-19 vaccination to a minor child without parental consent were immune from state causes of action for battery and negligence under the federal Public Readiness and Emergency Preparedness (PREP) Act. 

The Hogan ruling followed the Vermont Supreme Court’s lead in its Politella decision, which involved a similar case of a minor vaccinated without parental consent, decreeing that “covered persons” under the PREP Act are immune. 

The PREP Act does not, by its terms, state that it extends immunity beyond vaccine injuries to violate the established constitutional rights of parents to make medical decisions for their children. The Maine Court, like the Vermont Supremes, construed the PREP Act to federally “preempt” even state battery claims. 

Battery is an intentional tort. That is, even a forced vaccination would be protected by these decisions from state civil law actions and limit parents to recovery solely under the PREP Act (which only provides recourse when death or serious bodily injury results).

If the PREP Act is interpreted, as in both of these decisions, to eclipse parents’ rights, then a second question arises: is the PREP Act, thus applied, itself unconstitutional because it abridges established constitutional rights requiring courts to apply strict scrutiny? The Vermont Court in Politella avoided this pivotal analysis, but Maine’s Hogan ruling does not. The Court addressed this in footnote 3 with regard to 1) parental rights and 2) bodily integrity. I assert that the Maine Court misapplied constitutional law on both issues.  

Parental Rights 

The Hogan decision states, “…the fundamental rights of parents to make decisions regarding the care and management of their children…are not absolute…and the federal government has a compelling interest in legislating to address public health emergencies, see Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 18 (2020) (“Stemming the spread of COVID–19 is unquestionably a compelling interest…”). We reach the same conclusion whether the statute is subject to rational-basis or strict-scrutiny review. See Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) (applying a rational-basis analysis to determine whether a state vaccine requirement was constitutional); Pitts v. Moore, 2014 ME 59, ¶ 12 & n.3, 90 A.3d 1169 (setting forth the strict-scrutiny standard requiring a compelling government interest for the government to interfere with the fundamental right to parent).”

The Court has perverted federal constitutional law to reach this determination, and committed two errors. 

a) The first error is displayed in the language “Stemming the spread of COVID-19 is unquestionably a compelling interest…” That may be true, but novel Covid-19 vaccines did not prevent the spread of disease, so the Court is bootstrapping: employing a factual conclusion that is false. The Jacobson Court undertook a comprehensive assessment of the efficacy of smallpox vaccines absent here. 

This was recently addressed by the Ninth Circuit in Health Freedom Defense Fund, Inc., v Superintendent of the Los Angeles United School District, Ninth Circuit (6/7/2024), which held:

“Plaintiffs allege that the vaccine does not effectively prevent spread, but only mitigates symptoms for the recipient. And Plaintiffs claim that something that only does the latter, but not the former, is like a medical treatment, not a “traditional” vaccine. This interpretation distinguishes Jacobson, thus presenting a different government interest….Jacobson held that mandatory vaccinations were rationally related to “preventing the spread” of smallpox.”

(Note that this Ninth Circuit decision was subsequently vacated on February 4, 2025, and is due to be reheard.)

Noteworthy also is Justice Collins’ concurring opinion in the now-vacated Health Freedom Defense Fund decision agreeing that Jacobson did not apply and further emphasizing that “The Supreme Court’s caselaw thus clarifies that compulsory treatment for the health benefit of the person treated as opposed to compulsory treatment for the health benefit of others implicates the fundamental right to refuse medical treatment. Plaintiffs’ allegations here are sufficient to invoke that fundamental right.”  

Covid-19 vaccines, therefore, do not meet the compelling state interest test posited by the Maine Court. This recalls Jacobson’s strident cautions that not all vaccines are presumed safe:

“Before closing this opinion, we deem it appropriate, in order to prevent misapprehension as to our views, to observe…that the police power of a State, whether exercised by the legislature or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression…We now decide only that the statute covers the present case, and that nothing clearly appears that would justify this court in holding it to be unconstitutional and inoperative in its application to the plaintiff in error.”

Hogan rubber-stamped an experimental vaccine without undertaking any Jacobson analysis, then applied that case very broadly despite its clear language that it applied only narrowly and specifically, indeed warning that government vaccine mandates must be closely monitored.

b) The second error by the Hogan decision regarding parental rights is that it cites Jacobson, decided in 1905, as authority to apply a rational-basis test. Yet, the strict scrutiny test did not evolve as jurisprudence until long after Jacobson. The notion of “levels of judicial scrutiny,” including strict scrutiny, was introduced in Footnote 4 of the US Supreme Court decision in United States v. Carolene Products Co. (1938). Historically, the modern strict scrutiny formula did not emerge until the 1960s, when it took root simultaneously in a number of doctrinal areas. 

The Court further misapplies Jacobson by concluding erroneously that “the state vaccine requirement was constitutional.” Jacobson did not rule that the state could force-jab or even mandate a vaccine – the consequence to Mr. Jacobson was that he either took the smallpox vaccine, or he paid a fine. The Hogan and Politella families were not offered that option, and misinterpreting a 1905 case by ignoring this distinction is sloppy jurisprudence.

Bodily Integrity

The Hogan decision repeated its misapplication of Jacobson when it concluded:

“As to Hogan’s assertion that the immunity provision violates the child’s constitutional right of bodily integrity, “[i]n the context of COVID-19, courts across the country have concluded that Jacobson established that there is no fundamental right to refuse vaccination.” Williams v. Brown, 567 F. Supp. 3d 1213, 1226 (D. Or. 2021); see also Norris v. Stanley, 567 F. Supp. 3d 818, 821 (W.D. Mich. 2021) (“Plaintiff is absolutely correct that she possesses those rights [to privacy and bodily integrity], but there is no fundamental right to decline a vaccination.”).

Jacobson very much did permit the appellant therein to refuse a vaccination – he paid a $5 fine instead. Especially with a vaccine that was clearly neither safe nor effective, and where children were vaccinated without or against specific parental wishes, the Hogan Court’s representation is not at all an accurate application of Jacobson. Take note: these were not government-mandated vaccines: these were optional for parents, but that option was violated. This illustrates the obscene contortions that the Hogan court undertook to abuse Jacobson, Williams, and Norris – this was not a mandated but an optional vaccine, yet the Hogan Court treated it as if it was constitutional because it was government-mandated – when it was not. And Mr. Jacobson had an optional fine; these families were denied.

Strict scrutiny requires the government to demonstrate that the subject law is “narrowly tailored” to achieve its compelling purpose, and that it uses the “least restrictive means” to achieve that purpose. The Hogan Court skipped this analysis, eclipsing parental rights and bodily integrity, neither of which is in jeopardy by a statute that immunizes pharmaceutical companies for vaccines, not officials for injuries unconnected to vaccine safety or efficacy. 

Hogan clutched at straws to construct a flimsy judicial structure: a narrowly tailored construction using the least restrictive means of accomplishing Congress’s goals of shielding vaccine manufacturers would not erase parental rights or the right to bodily integrity. Those rights were not trammelled by Congress but by these courts, not in order to prevent the spread of disease but to prevent legal accountability by officials who wrongly vaccinated a child, committing battery. This is a heinous construction of legal precedent and an abhorrent attempt to bypass strict scrutiny.   

If the PREP Act preempts state actions of this sort, then Covid vaccinations without parental consent are supported by these courts even when the federal government has not mandated them unless the child dies or suffers severe bodily injury. Congress never said it intended to extinguish parental rights, informed patient consent, or bodily integrity protections. All three fundamental liberties are flippantly jettisoned by the Maine Court using a twisted reliance on a Jacobson ruling that never held any such thing. 

Strict scrutiny applies. These plaintiffs did not sue manufacturers for vaccine injuries but public officials for gross breaches of fiduciary duty in administering them. Russia offers greater legal protections to parents and children than Maine or Vermont. Both Politella and Hogan are obscene applications of the US Constitution and US Supreme Court precedents.