Nos.

21A243, 21A244, 21A245, 21A246, 21A247, 21A248, 21A249,

21A250, 21A251, 21A252, 21A258, 21A259, 21A260, and 21A267

IN THE
Supreme Court of the United States

IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH

ADMINISTRATION, INTERIM FINAL RULE: COVID-19 VACCINATION AND
TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402,
ISSUED ON NOVEMBER 4, 2021

[case captions on following pages]

On Applications for Stay or Injunction Pending Review of Petition for Writ of

Certiorari to the United States Court of Appeals for the Sixth Circuit

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND

BRIEF OF AMERICA’S FRONTLINE DOCTORS
AS AMICUS CURIAE IN SUPPORT OF APPLICANTS

GEORGE R. WENTZ, JR. GREGORY J. GLASER*

The Davillier Law Group 4399 Buckboard Drive #423
935 Gravier Street, Ste. 1702 Copperopolis, California 95228
New Orleans, Louisiana 70112 Telephone: (925) 642-6651
Telephone: (504) 582-6998 greg@gregglaser.com
gwentz@davillierlawgroup.com
Counsel for Amicus Curiae
America’s Frontline Doctors

*Counsel of Record
 JOB CREATORS NETWORK, ET AL.,
Applicants,
v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
___________________________

NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL.,

Applicants,
v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
___________________________

PHILLIPS MANUFACTURING & TOWER COMPANY, ET AL.,

Applicants,
v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
___________________________

THE SOUTHERN BAPTIST THEOLOGICAL SEMINARY, ET AL.,

Applicants,
v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
___________________________

STATE OF OHIO, ET AL.,

Applicants,
v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
___________________________

BST HOLDINGS, LLC, ET AL.,

Applicants,
v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
 HERITAGE FOUNDATION, ET AL.,
Applicants,
v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
___________________________

WORD OF GOD FELLOWSHIP, INC. D/B/A DAYSTAR TELEVISION NETWORK, ET AL.,

Applicants,
v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
___________________________

ASSOCIATED BUILDERS AND CONTRACTORS, INC., ET AL.,

Applicants,
v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
___________________________

SCOTT BEDKE, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE IDAHO HOUSE OF

REPRESENTATIVES, ET AL.,
Applicants,
v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
___________________________

REPUBLICAN NATIONAL COMMITTEE,

Applicant,
v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
 BETTEN CHEVROLET, INC.,
Applicant,
v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
___________________________

BENTKEY SERVICES, LLC, DBA THE DAILY WIRE,

Applicant,
v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
___________________________

FABARC STEEL SUPPLY, INC., ET AL.,

Applicants,
v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,

Respondents.
___________________________
 MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

America’s Frontline Doctors (“Amicus” or “AFLDS”) respectfully moves under

Supreme Court Rule 37.2 for leave (1) to file the attached brief as amicus curiae in

support of the Emergency Applications filed on December 17-22, 2021, seeking a

stay or injunction pending review of the Sixth Circuit’s decision to dissolve a stay of

the Occupational Safety and Health Administration (“OSHA”) Emergency

Temporary Standard (“ETS”) on Coronavirus Disease of 2019 (“Covid-19”)

vaccination and testing, (2) given the expedited consideration of this matter, to file

in unbound format on 8.5-by-11-inch paper, and (3) to the extent leave is required,

to file without 10 days’ advance notice to the parties of Amicus’ intent to file. *

By email on December 28, 2021, Amicus sought consent from the parties to

file a brief in support of the emergency applications. Counsel for the Applicants in

Nos. 21A243, 21A245, 21A247, 21A248, 21A249, 21A250, 21A251, 21A252, 21A258,

21A259, 21A260, and 21A267 consented to the filing. Counsel for the Department of

Justice stated the government takes no position. Counsel for the remaining

Applicants had not responded as of 12 p.m. on December 30, 2021.

Amicus is a non-partisan, not-for-profit organization of hundreds of member

physicians from across the country, representing a range of medical disciplines and

practical experience with Covid-19 on the front lines of medicine.

*No counsel for a party authored this motion in whole or in part, and no person other than
amicus, its members, or its counsel made a monetary contribution to fund the motion or
brief.

i
 Permitting the filing of the proposed brief would offer an important

perspective to this Court:

It is the consensus of the medical community that the currently available

Covid-19 vaccine injections do not prevent the spread of SARS-CoV-2. Relevant

federal agencies have repeatedly acknowledged this consensus. Therefore, there is

no scientific or legal justification for OSHA to segregate injected and un-injected

people. Indeed, since the Covid-19 injections do not confer immunity upon the

recipients, but are claimed to merely reduce the symptoms of the disease, they do

not fall within the long-established definition of a vaccine at all. They are instead

treatments and must be analyzed as such under the law.

Even if OSHA possessed the statutory and constitutional authority to issue

the ETS now challenged before the Court, which it does not, the substantive due

process clause of the Fifth Amendment would require the federal government to

establish that the OSHA ETS is narrowly tailored to meet a compelling state

interest. This is a standard it cannot meet.

Respectfully submitted this 30th day of December, 2021,

_______________________
GREGORY J. GLASER*
4399 Buckboard Drive #423
Copperopolis, California 95228
Telephone: (925) 642-6651
greg@gregglaser.com

ii
GEORGE R. WENTZ, JR.
The Davillier Law Group
935 Gravier Street, Ste. 1702
New Orleans, Louisiana 70112
Telephone: (504) 582-6998
gwentz@davillierlawgroup.com

Counsel for Amicus Curiae

America’s Frontline Doctors
*Counsel of Record

iii
 TABLE OF CONTENTS
Page
MOTION FOR LEAVE TO FILE BRIEF ................................................................................. i
TABLE OF AUTHORITIES .................................................................................................. v
INTEREST OF AMICUS CURIAE ........................................................................................ 1
SUMMARY OF ARGUMENT ............................................................................................... 2
ARGUMENT ..................................................................................................................... 3
A. Covid-19 injections do not create immunity. They are treatments,
not vaccines ........................................................................................................ 3

B. The Government’s attempt to mandate treatments is subject

to strict scrutiny ................................................................................................. 9

C. The OSHA ETS is not narrowly tailored to meet a

compelling state interest. ................................................................................ 13

1. There is no compelling state interest in mandating Covid-19

injections that do not confer immunity ...................................................... 13

2. Even if the ETS served a compelling state interest,

it is not narrowly tailored. .......................................................................... 14

CONCLUSION ................................................................................................................ 20

iv
 TABLE OF AUTHORITIES

CASES Page
Adarand Constructors v. Pena, 515 U.S. 200 (1995) ................................................... 9

B.S.T. Holdings, LLC et al v. Occupational Safety and Health

Administration et al, Case No. 21-60845 (Fifth Cir., Nov. 12, 2021) ............ 14–15

Bolling v. Sharpe, 347 U.S. 497 (1954) ........................................................................ 9

Califano v. Goldfarb, 430 U.S. 199 (1977) ................................................................... 9

Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990) ........... 9–12

Daniels v. Williams, 474 U.S. 327 (1986) .................................................................. 11

Frontiero v. Richardson, 411 U.S. 677 (1973).............................................................. 9

Jacobson v. Massachusetts, 197 U.S. 11 (1905) ..................................................... 9, 13

Jimenez v. Weinberger, 417 U.S. 628 (1974) ................................................................ 9

Parham v. J. R., 442 U.S. 584 (1979) ......................................................................... 11

Vitek v. Jones, 445 U.S. 480 (1980) ............................................................................ 11

Washington v. Glucksberg, 521 U.S. 702 (1997) .................................................. 11–12

Washington v. Harper, 494 U.S. 210 (1990) ........................................................ 10, 12

CONSTITUTIONAL PROVISIONS
Fifth Amendment................................................................................................ 2, 9, 20
Fourteenth Amendment ............................................................................. 9, 10, 11, 12

FEDERAL STATUTES
42 U.S.C. § 300aa-1................................................................................................... 7, 9

v
FEDERAL REGULATIONS
86 FED. REG. 61402 (November 4, 2021) (“OSHA ETS”) ........................................ passim

vi
 INTEREST OF AMICUS CURIAE 1

Amicus Curiae is America’s Frontline Doctors (“AFLDS”), a non-partisan,

not-for-profit organization of hundreds of member physicians who come from across

the country, representing a range of medical disciplines and practical experience on

the front lines of medicine. AFLDS’ programs focus on a number of critical issues

including:

• Providing Americans with science-based facts about Covid-19;

• Protecting physician independence from government overreach;

• Combating Covid-19 with evidence-based approaches without

compromising constitutional freedoms;

• Fighting medical cancel culture and media censorship;

• Advancing healthcare policies that protect the physician-patient

relationship;

• Expanding Covid-19 treatment options for all Americans who need them;

and

• Strengthening the voices of frontline doctors in the national healthcare

conversation.

Each of AFLDS’ member physicians is deeply committed to the guiding

principle of medicine: “FIRST, DO NO HARM.” They gravely take their ethical

1 Due the expedited nature of this matter, parties were not noticed 10 days prior to the
filing of this brief; nevertheless, it is hereby certified that a majority of Applicants have
extended written permission to file this brief, and that Respondents take no position with
respect to the filing of this brief. Finally, no counsel for a party or a party to this case
authored this brief in whole or in part; and no person other than the Amicus, its
members, or its counsel made a monetary contribution to its preparation or submission.

1
obligations to their patients. It is axiomatic that a physician’s duty is to his or her

patient. AFLDS holds sacrosanct the relationship between doctor and patient where

informed decisions are to be made, taking into consideration all of the factors

relating to the patients’ health, risks, co-morbidities and circumstances.

For AFLDS member physicians, the practice of medicine is not simply a job.

Neither is it merely a career. Rather, it is a sacred trust. It is a high calling that

often requires a decade or more of highly focused sacrificial dedication to achieve.

SUMMARY OF ARGUMENT

It is the consensus of the medical community that the currently available

Covid-19 vaccine injections (“Covid-19 injections”) do not prevent the spread of

Covid-19. Relevant federal agencies have repeatedly acknowledged this consensus.

Therefore, there is no scientific or legal justification for the Occupational Safety and

Health Administration (“OSHA”) to segregate injected and un-injected people.

Indeed, since the Covid-19 injections do not confer immunity upon the recipients,

but are claimed to merely reduce the symptoms of the disease, they do not fall

within the long-established definition of a vaccine at all. They are instead

treatments and must be analyzed as such under the law.

Even if OSHA possessed the statutory and constitutional authority to issue

the Emergency Temporary Standard (“ETS”) 2 now challenged before the Court,

which it does not, the substantive due process clause of the Fifth Amendment would

require the federal government to establish that the OSHA ETS is narrowly tailored

2 86 FED. REG. 61402 (November 4, 2021).

2
to meet a compelling state interest. This is a standard it cannot meet.

ARGUMENT

A. Covid-19 injections do not create immunity. They are treatments, not

vaccines.

The uncontroverted medical consensus is that existing Covid-19 injections do

not prevent infection or transmission of the coronavirus; i.e., they do not create

immunity in the recipients. This is admitted openly today, including by U.S. Health

Agencies, which is why the CDC Director stated on CNN, “What the vaccines can’t

do anymore is prevent transmission.” 3 Examples abound:

a. NIAID Director Dr. Anthony Fauci to NPR: “We know now as a fact that

[vaccinated people with Covid-19] are capable of transmitting the

infection to someone else.” 4

b. Dr. Anthony Fauci on November 12, 2021, referring to the experience of

health officials regarding the injections:

They are seeing a waning of immunity not only against infection

but against hospitalization and to some extent death, which is
starting to now involve all age groups. It isn't just the elderly.
It's waning to the point that you're seeing more and more people
getting breakthrough infections, and more and more of those
people who are getting breakthrough infections are winding up
in the hospital. 5

3 CNN. The Situation Room, interview with CDC Director Walensky. (August 5, 2021).
https://twitter.com/CNNSitRoom/status/1423422301882748929
4 Stieg, C. “Dr. Fauci on CDC mask guidelines: ‘We are dealing with a different virus
now.’” (July 28, 2021). https://www.cnbc.com/2021/07/28/dr-fauci-on-why-cdc-changed-
guidelines-delta-is-a-different-virus.html
5 Coleman, K (November 12, 2021). Dr. Fauci Just Issued This Urgent Warning to
Vaccinated People. Yahoo News. https://www.yahoo.com/lifestyle/dr-fauci-just-issued-
urgent-201846228.html

3
 c. WHO Chief Scientist Dr. Soumya Swaminathan: “At the moment I don't

believe we have the evidence of any of the vaccines to be confident that it’s

going to prevent people from actually getting the infection and therefore

being able to pass it on.” 6

d. Chief Medical Officer of Moderna Dr. Tal Zaks: “There’s no hard evidence

that it stops [the Covid-19 vaccinated] from carrying the virus transiently

and potentially infecting others who haven’t been vaccinated.” 7

e. The Surgeon General of the State of Florida, Dr. Joseph Ladapo, MD,

PhD: “… the infections can still happen whether people are vaccinated or

not. That's very obvious.” 8

f. Professor Sir Andrew Pollard who led the Oxford vaccine team: “We don’t

have anything that will stop transmission, so I think we are in a situation

where herd immunity is not a possibility and I suspect the virus will

throw up a new variant that is even better at infecting vaccinated

individuals.” 9

g. Dr. Jay Bhattacharya, MD, PhD, Professor of Health Policy, Stanford

6 Colson, T. “Top WHO scientist says vaccinated travelers should still quarantine,
citing lack of evidence that COVID-19 vaccines prevent transmission.” Business Insider.
(December 29, 2020). https://www.businessinsider.com/who-says-no-evidence-coronavirus-
vaccine-prevent-transmissions-2020-12?op=1
7 Manskar, N. “Moderna boss says COVID-19 vaccine not proven to stop spread of
virus.” New York Post. (November 24, 2020). https://nypost.com/2020/11/24/moderna-boss-
says-covid-shot-not-proven-to-stop-virus-spread/.
8 WFLA News. “Desantis, Moody Speak Out Against Vaccine Mandates in
Clearwater.” Twitter Repost. (October 24, 2021). https://twitter.com/4patrick7/status/
1452309002021388296?s=21
9 Knapton, S. “Delta variant has wrecked hopes of herd immunity, warn scientists.”
The Telegraph. (October 8, 2021). https://www.msn.com/en-gb/health/medical/delta-variant-
has-wrecked-hopes-of-herd-immunity-warn-scientists/ar-AAN9O4p

4
 University: “Based on my analysis of the existing medical and scientific

literature, any exemption policy that does not recognize natural immunity

is irrational, arbitrary, and counterproductive to community health.” 10

h. 2008 Nobel Prize winner in Medicine Dr. Luc Montagnier (also winner of

the French National Order of Merit and 20 other major international

awards):

The vaccines don’t stop the virus, they do the opposite – they
‘feed the virus,’ and facilitate its development into stronger and
more transmissible variants…You see it in each country, it’s the
same: the curve of vaccination is followed by the curve of deaths
… the vaccines Pfizer, Moderna, Astra Zeneca do not prevent the
transmission of the virus person-to-person and the vaccinated
are just as transmissive as the unvaccinated. 11

i. A study of a Covid-19 outbreak in July 2021 published in Eurosurveillance

observed that 100 percent of severe, critical, and fatal cases of Covid-19

occurred in injected individuals. The authors stated that the study

“challenges the assumption that high universal vaccination rates will lead

to herd immunity and prevent COVID-19 outbreaks.” 12

j. Dr. Martin Kulldorff, Professor of Medicine at Harvard Medical School:

10 Bhattacharya, J., et al. “The beauty of vaccines and natural immunity.” Smerconish
Newsletter. (June 4, 2021). https://www.smerconish.com/exclusive-content/the-beauty-of-
vaccines-and-natural-immunity
11 RAIR Foundation USA video with Nobel Laureate Luc Montagnier. https://rair
foundation.com/bombshell-nobel-prize-winner-reveals-covid-vaccine-is-creating-variants/.
(May 18, 2021).
12 Pnina, S. et al. “Nosocomial outbreak caused by the SARS-CoV-2 Delta variant in a
highly vaccinated population, Israel, July 2021.” EuroSurveill. 26:39. (September 23,
2021). https://doi.org/10.2807/1560-7917.ES.2021.26.39.2100822

5
 “The bottom line is that these vaccines do not prevent transmission.” 13

k. Dr. Sunetra Gupta, Infectious Disease Epidemiologist and Professor of

Theoretical Epidemiology at the University of Oxford:

[I]t is really not logical to use [these] vaccines to protect other

people … I don’t think they should be forced [] on the
understanding simply because this vaccine does not prevent
transmission. So if you just think of the logic of it, what is the
point of requiring a vaccine to protect others if that vaccine
does not durably prevent onward transmission of a virus? 14

The Court may already be aware of the countless news reports of outbreaks

on fully “vaccinated” sports teams 15 and cruise ships, 16 not to mention in the fully

“vaccinated” White House. 17 There is simply no question that the Covid-19

injections do not create immunity. This was summed up quite nicely by Moderna

Chief Medical Officer Tal Zaks, who “warned that the trial results show that the

vaccine can prevent someone from getting sick or ‘severely sick,’ from COVID-19,

however, the results don't show that the vaccine prevents transmission of the

virus.” 18 Recognition of this fact may explain why, in August of 2021, the CDC

13 Adams, P, et al. “Who Are These COVID-19 Vaccine Skeptics and What Do They Believe?”
Epoch Times. (October 20, 2021). https://www.theepochtimes.com/who-are-these-covid-19-
vaccine-skeptics-and-what-do-they-believe_4043094.html
14 Allen, R. “Oxford Scientist ‘It’s Illogical & Unethical To Force Jab On NHS Staff.’”
The Richie Allen Radio Show. (September 9, 2021). https://richieallen.co.uk/oxford-scientist-
its-illogical-unethical-to-force-jab-on-nhs-staff/
15 Associated Press. “US sports leagues cope with COVID-19 outbreaks amid variants.”
(December 15, 2021). https://www.foxnews.com/sports/us-sports-leagues-cope-with-covid-19-
outbreaks-amid-variants
16 Lemos, G. et al. “17 Covid-19 cases identified on New Orleans-bound cruise ship.”
CNN. (December 5, 2021). https://www.cnn.com/2021/12/05/us/cruise-ship-norwegian-
breakaway-covid-cases/index.html
17 Chasmar, J. “Psaki doesn’t deny White House COVID-19 outbreak.” Yahoo News.
(December 20, 2021). https://news.yahoo.com/psaki-doesn-apos-t-deny-210029232.html
18 Al-Arshani, S. “Moderna’s chief medical officer says that vaccine trial results only
show that they prevent people from getting sick – not necessarily that recipients won’t still

6
changed the definition of “vaccination” from “the act of introducing a vaccine into

the body to produce immunity to a specific disease” to “the act of introducing a

vaccine into the body to produce protection to a specific disease.” 19

However, this newly created CDC definition conflicts with the statutory

criteria for a vaccine, which focuses solely upon immunity. In 1986, Congress passed

42 U.S.C. § 300aa-1, which established “a National Vaccine Program to achieve

optimal prevention of human infectious diseases through immunization . . .”

(emphasis added). Clearly, from both a public health standpoint as well as from a

legal standpoint, immunization is the intended sine qua non of vaccination.

Since they do not create immunity, but are claimed to merely reduce the

symptoms of the disease, the so called Covid-19 vaccines are treatments, not

vaccines. 20 Even the FDA has classified them as “CBER-Regulated Biologics”

otherwise known as “therapeutics” which fall under the “Coronavirus Treatment

Acceleration Program.” 21

be able to transmit the virus.” Business Insider. (November 2020). https://www.business

insider.com/moderna-chief-medical-officer-vaccines-interview-2020-11
19 Attkisson, S. “CDC changes definition of “vaccines” to fit Covid-19 vaccine
limitations.” (September 8, 2021). https://sharylattkisson.com/2021/09/read-cdc-changes-
definition-of-vaccines-to-fit-covid-19-vaccine-limitations/
20 See, e.g., Moderna Program Patents. (December 2021). https://www.modernatx.
com/patents
United States Securities and Exchange Commission, Moderna Form 10Q. (August 6,
2020). https://www.sec.gov/Archives/edgar/data/1682852/000168285220000017/mrna-
20200630.htm
Nakagami, H. “Development of COVID-19 vaccines utilizing gene therapy
technology.” Int Immunol. 33(10):521-527. (September 25, 2021). https://pubmed.
ncbi.nlm.nih.gov/33772572/.
FDA. “Comirnaty. Vaccines, Blood, and Biologics.” (December 2021). https://
www.fda.gov/ vaccines-blood-biologics/comirnaty
21 FDA. “Coronavirus (COVID-19) | CBER-Regulated Biologics.” (2021). https://
www.fda.gov/vaccines-blood-biologics/industry-biologics/coronavirus-covid-19-cber-

7
 The FDA’s “therapeutics” classification of the injections is consistent with

representations made by Pfizer partner BioNTech to the Securities and Exchange

Commission (“SEC”) in its 2020 Annual Report, where it stated with regard to the

mRNA technology forming the basis of its Covid-19 injection:

Although we expect to submit BLAs [biologics license applications] for

our mRNA-based product candidates in the United States, and in the
European Union, mRNA therapies have been classified as gene
therapy medicinal products, and other jurisdictions may consider our
mRNA-based product candidates to be new drugs, not biologics or gene
therapy medicinal products, and require different marketing
applications. 22

Similarly, in its June 30, 2020 Quarterly Report to the SEC, Moderna stated

with regard to the mRNA technology underpinning its injection: “Currently, mRNA

is considered a gene therapy product by the FDA.” 23

Thus, the medical community, the relevant agencies, and both Pfizer and

Moderna — the manufacturers of the dominant injections — recognize that the so-

called vaccines are therapeutics, or medical treatments. Since they do not achieve

immunization, this conclusion is also consistent with Congress’ definition of

vaccines in establishing the National Vaccine Program in 1986: the “prevention of

regulated-biologic
FDA. “Coronavirus Treatment Acceleration Program(CTAP).” (2021). https://
www.fda.gov/drugs/coronavirus-covid-19-drugs/coronavirus-treatment-acceleration-program
-ctap.
22 United States Securities and Exchange Commission. BioNTech SE Form 20-F.
(2020). https://www.sec.gov/Archives/edgar/data/1776985/000156459021016723/bntx-20f_
20201231.htm at page 26.
23 United States Securities and Exchange Commission. Moderna SE Form 10-Q. (June
30, 2020). https://www.sec.gov/Archives/edgar/data/1682852/000168285220000017 /mrna-
20200630.htm

8
human infectious diseases through immunization.” 24 Accordingly, we herein refer to

the Covid-19 “vaccines” as Covid-19 injections.

B. The Government’s attempt to mandate treatments is subject to strict

scrutiny.

The judiciary has too often assumed without analysis that requiring

individuals to submit to Covid-19 injections is permissible under the determination

made in Jacobson. 25 However, because these injections do not confer immunity, but

are instead merely treatments that may reduce the severity of symptoms, the

proper analysis stems from Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261

(1990). 26

In Cruzan, the Court addressed whether the parents of a young woman

severely brain damaged in a car wreck could compel the hospital to remove her from

life support in the absence of any clear directive memorializing her intent. Missouri

24 42 U.S.C. § 300aa-1 et seq.

25 Jacobson v. Massachusetts, 197 U.S. 11 (1905).
26 Although Cruzan was decided under the due process clause of the Fourteenth
Amendment, this Court has long held that the same substantive due process analysis
applied to the states under the due process clause of the Fourteenth Amendment also
applies to the federal government under the due process clause of the Fifth Amendment.
See, e.g., Bolling v. Sharpe, 347 U.S. 497, 500 (1954) (“In view of our decision that the
Constitution prohibits the states from maintaining racially segregated public schools, it
would be unthinkable that the same Constitution would impose a lesser duty on the
Federal Government.”) See also, Adarand Constructors v. Pena, 515 U.S. 200 (1995) (same);
Frontiero v. Richardson, 411 U.S. 677 (1973) (holding federal law discriminating on basis of
sex unconstitutional under the Fifth Amendment due process clause based on Fourteenth
Amendment analysis); Califano v. Goldfarb, 430 U.S. 199 (1977) (striking down federal
racial classification on basis of Fifth Amendment due process clause stating that strict
scrutiny is the proper standard for analysis of all racial classifications, whether imposed by
a federal, state, or local actor. Id. at 231, superseded by statute); Jimenez v. Weinberger,
417 U.S. 628 (1974) (striking down provision of the Social Security Act based upon
illegitimacy applying substantive due process analysis through the due process of clause of
the Fifth Amendment).

9
required clear and convincing evidence of intent to remove a patient from life

support, and the parents argued this violated both their and their daughter’s

Fourteenth Amendment substantive due process rights. Significantly for the issue

at hand, the Court began by recognizing a fundamental human right of informed

consent to medical treatment stemming from the right of self-determination,

stating:

At common law, even the touching of one person by another without

consent and without legal justification was a battery. Before the turn
of the century, this Court observed that “no right is held more sacred,
or is more carefully guarded, by the common law, than the right of
every individual to the possession and control of his own person, free
from all restraint or interference of others, unless by clear and
unquestionable authority of law.” This notion of bodily integrity has
been embodied in the requirement that informed consent is generally
required for medical treatment. Justice Cardozo, while on the Court of
Appeals of New York, aptly described this doctrine: “Every human
being of adult years and sound mind has a right to determine what
shall be done with his own body; and a surgeon who performs an
operation without his patient’s consent commits an assault, for which
he is liable in damages.” The informed consent doctrine has become
firmly entrenched in American tort law. The logical corollary of the
doctrine of informed consent is that the patient generally possesses the
right not to consent, that is, to refuse treatment.
497 U.S. at 269–270 (citations omitted).

The Court went on to state that “[t]he principle that a competent person has

a constitutionally protected liberty interest in refusing unwanted medical treatment

may be inferred from our prior decisions” citing three cases pertinent to our

analysis here. First, the Cruzan Court cited Washington v. Harper, 494 U.S. 210,

221-222 (1990), where the Court recognized that prisoners possess “a significant

liberty interest in avoiding the unwanted administration of antipsychotic drugs

under the Due Process Clause of the Fourteenth Amendment.” Significantly, the

10
Court in Harper stated that “[t]he forcible injection of medication into a

nonconsenting person's body represents a substantial interference with that

person’s liberty.” 494 U.S. at 229. Second, the Cruzan Court cited Vitek v. Jones,

445 U.S. 480, 494 (1980), where the Court recognized that the transfer to a mental

hospital coupled with mandatory behavior modification treatment implicated liberty

interests. Third, the Court cited Parham v. J. R., 442 U.S. 584 (1979) where the

Court recognized that “a child, in common with adults, has a substantial liberty

interest in not being confined unnecessarily for medical treatment.”

Cruzan was followed in 1997 by Washington v. Glucksberg, 521 U.S. 702

(1997), where the issue before the Court was whether the substantive due process

right to refuse medical treatment included the right to assisted suicide. The

following language of the Court is particularly significant to the issue presently

before the Court:

The Due Process Clause guarantees more than fair process, and the
“liberty” it protects includes more than the absence of physical
restraint. Collins v. Harker Heights, 503 U.S. 115, 125 (1992) (Due
Process Clause “protects individual liberty against ‘certain government
actions regardless of the fairness of the procedures used to implement
them’”) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). The
Clause also provides heightened protection against government
interference with certain fundamental rights and liberty interests. ...
We have also assumed, and strongly suggested, that the Due Process
Clause protects the traditional right to refuse unwanted lifesaving
medical treatment. Cruzan, 497 U.S. at 278-279.
521 U.S. at 719-720. (internal citations omitted)

The fact that the Glucksberg Court identified the right to refuse unwanted

lifesaving medical treatment as one in a long list of traditional fundamental human

rights and liberty interests is extremely important because once a right is so

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identified, any governmental action infringing upon it is subjected to the “strict

scrutiny” test. As stated by the Court in Glucksberg, “the Fourteenth

Amendment forbids the government to infringe fundamental liberty interests at all,

no matter what process is provided, unless the infringement is narrowly tailored to

serve a compelling state interest.” Glucksberg, 521 U.S. at 721 (internal quotations

omitted, emphasis in original).

The Court’s analysis in both Cruzan and Glucksberg was based upon a sick

person asserting a right to deny treatment. The ETS mandate, on the other hand,

forces treatment on perfectly healthy people. All of the arguments in favor of self-

determination reviewed by the Court in Cruzan and Glucksberg are even stronger

when applied to a perfectly healthy person’s right to refuse a treatment on the basis

that it may make symptoms of a disease that healthy person may never contract less

severe. And we remember here the uncontroverted medical consensus that Covid-19

injections do not prevent infection or transmission of the coronavirus; i.e., they do

not create immunity in the recipients. The bar should be even higher to force a

healthy person to accept “treatment” than to force a sick person to accept critical

care. As stated by the Court in Harper, where a physically healthy prisoner objected

to the administration of antipsychotic drugs, “[t]he forcible injection of medication

into a nonconsenting person's body represents a substantial interference with that

person’s liberty.” 494 U.S. at 229.

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C. The OSHA ETS is not narrowly tailored to meet a compelling state
interest.

1. There is no compelling state interest in mandating Covid-19

injections that do not confer immunity.

The traditional public health justification for mandating a vaccine was set

forth in Jacobson, supra. There the Court stated:

[I]n every well-ordered society charged with the duty of conserving the
safety of its members the rights of the individual in respect of his
liberty may at times, under the pressure of great dangers, be subjected
to such restraint, to be enforced by reasonable regulations, as the safety
of the general public may demand.
197 U.S. at 30 (emphasis added).

Thus, it is the safety of the general public that Jacobson cited to justify a

vaccine mandate. The Jacobson court also stated it in another manner, but again

emphasized the public safety underpinning of the policy: “There are manifold

restraints to which every person is necessarily subject for the common good. On any

other basis, organized society could not exist with safety to its members.”197 U.S. at

29 (emphasis added).

Jacobson, to the extent that it is still good law (a point neither contested nor

conceded by amicus at this time), established that only in the protection of the

public from harm does any possible legitimate state interest in compelling vaccines

arise. However, since the injections at issue here do not confer immunity on

recipients, they in no way protect the public from acquiring the infection. Unlike in

Jacobson, where the prevailing and long-held common belief was that the smallpox

vaccine would confer immunity with an approximately 98 percent success rate, and

prevent the public from being infected with a deadly disease from which

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approximately 30 percent of the infected would die, the Covid-19 injections do

nothing of the sort. As noted above, it is universally accepted that the Covid-19

injections do not stop the transmission or acquisition of the virus between persons, 27

and for those under 80 years of age — those generally in the work force — the

percent of infected persons who may die is readily acknowledged as far less than

one percent. Accordingly, requiring Covid-19 “vaccination” serves no compelling

state interest at all, and fails the fundamental prong of the strict scrutiny test.

2. Even if the ETS served a compelling state interest, it is not

narrowly tailored.

As the Fifth Circuit accurately observed, “rather than a delicately handled

scalpel, the [OSHA] Mandate is a one-size fits-all sledgehammer that makes hardly

any attempt to account for differences in workplaces (and workers) that have more

than a little bearing on workers’ varying degrees of susceptibility to the supposedly

‘grave danger’ the Mandate purports to address.” B.S.T. Holdings, LLC et al v.

Occupational Safety and Health Administration et al, Case No. 21-60845 (Fifth Cir.,

Nov. 12, 2021) (“B.S.T. Holdings”)(slip opinion at 8).

The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-

sector employees in America, in workplaces as diverse as the country
itself, the Mandate fails to consider what is perhaps the most salient
fact of all: the ongoing threat of COVID-19 is more dangerous to some
employees than to other employees. All else equal, a 28 year-old
trucker spending the bulk of his workday in the solitude of his cab is
simply less vulnerable to COVID-19 than a 62 year-old prison janitor.
Likewise, a naturally immune unvaccinated worker is presumably at
less risk than an unvaccinated worker who has never had the virus.
The list goes on, but one constant remains—the Mandate fails almost

27 Subramanian SV, et al. Increases in COVID-19 are unrelated to levels of vaccination

across 68 countries and 2947 counties in the United States. Eur J Epidemiol. 2021;1-4.
(September 30, 2021). https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8481107/

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 completely to address, or even respond to, much of this reality and
common sense.
B.S.T. Holdings (slip opinion at *13).

a. The ETS fails to address risk factors.

It is well established that certain sectors of society are at far greater risk

from Covid-19 than other sectors. Having co-morbid conditions is the most

important risk and older age is the most widely used proxy for comorbidities.

Persons with obesity, diabetes, and cardiac disease are at a much higher risk;

residents of long-term care facilities who are 1 percent of the population represent

35 percent of all Covid-19 deaths; and, per the CDC, the mortality rate of persons

over 65 is more than 80 times greater than for persons under 30. 28 The healthy

young and middle age are at a statistical zero risk of death. In addition, the more

recent Omicron strain is even milder, and typically clinically indistinguishable from

the common cold. 29 Vast sectors of society are at extraordinarily low risk from the

virus.

The OSHA ETS fails to take any of these differences into account, and simply

applies uniformly to everyone working for a company employing 100 people or more.

It is indeed a sledgehammer approach.

b. The ETS fails to consider natural immunity.

Perhaps most concerning is that the ETS completely ignores natural

28 CDC. “Underlying Medical Conditions Associated with Higher Risk for Severe
COVID-19: Information for Healthcare Providers.” (October 14, 2021).
https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-care/underlyingconditions.html
29 Gamble, M. “Dr. Ashish Jha: Time to focus on COVID hospitalizations and deaths,
not cases.” Beckers Hospital Review. (December 28, 2021). https://www.beckers hospital
review.com/public-health/dr-ashish-jha-time-to-focus-on-covid-hospitalizations-and-deaths-
not-cases.html

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immunity. Universal principles of virology and immunology teach us that immunity

from natural infection is the most complete, most robust, and most durable. 30

Consistent with this principle, the evidence establishes that natural immunity

acquired by those who have been infected with and recovered from Covid-19 (the

“Covid-19 Recovered”) acquire complete and lifelong immunity. 31 Indeed, The

Cleveland Clinic found the following: “Individuals who have had SARS-CoV-2

infection are unlikely to benefit from COVID-19 vaccination.” 32

There is no evidence to support the argument that the Covid-19 Recovered

lose their immunity. In fact, there is substantial evidence suggesting it will be

lifelong. 33, 34 Such evidence includes: University of Washington scientists discovered

that prior infection 35 with the original SARS-CoV-1 36 (which is approximately 78

percent identical to SARS-Cov-2) conferred natural immunity that is robust against

30 See, e.g., Delves, P, et al. Roitt’s Essential Immunology, 13th Edition (2017)
https://www.wiley.com/en-us/Roitt%27s+Essential+Immunology%2C+13th+Edition-p-
9781118415771
31 Alexander, PE. “141 Research Studies Affirm Naturally Acquired Immunity to
Covid-19: Documented, Linked, and Quoted.” Brownstone Institute. (October 17, 2021).
https://brownstone.org/articles/79-research-studies-affirm-naturally-acquired-immunity-to-
covid-19-documented-linked-and-quoted/ (last visited December 28, 2021)
32 Shrestha, N. “Necessity of COVID-19 vaccination in previously infected individuals.”
MedRxiv. (June 19, 2021). https://www.medrxiv.org/content/10.1101/2021.06.01.21258176v3
33 Haveri, A. “Persistence of neutralizing antibodies a year after SARS-CoV-2 infection
in humans.” Eur. J. Immunol. 51(12):3202-3213. (Dec. 2021). https://pubmed.ncbi.
nlm.nih.gov/34580856/
Block, J. “Vaccinating people who have had covid-19: why doesn’t natural immunity
count in the US?” BMJ 2021;374:n2101. (September 13, 2021). https://www.bmj.com
/content/374/bmj.n2101
34 Callaway, E. “Had COVID? You’ll probably make antibodies for a lifetime.” Nature.
(May 26, 2021) https://www.nature.com/articles/d41586-021-01442-9
35 Doshi, P. “Covid-19: Do many people have pre-existing immunity?” BMJ
2020;370:m3563. (September 17, 2020). https://www.bmj.com/content/370/bmj.m3563
36 Le Bert, N. “SARS-CoV-2-specific T cell immunity in cases of COVID-19 and SARS,
and uninfected controls.” Nature. 584(7821):457-462. (August 2020). https://pubmed.
ncbi.nlm.nih.gov/32668444/

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the current SARS-CoV-2 eighteen years later; 37 The Lancet reports that “infection

does protect against reinfection;” 38 SCIENCE reports: “Substantial immune

memory is generated after natural infection with COVID-19, involving all four

major types of immune memory”; 39 and Nature reports: “SARS-CoV-2 infection

induces long-lived bone marrow plasma cells in humans.” 40

The Covid-19 Recovered are now more than half of the U.S. population. “As of

July 1, 2021, about 53.8% of the 330 million people living in the U.S. have been

infected with SARS-CoV-2….” 41 In December 2021, this number exceeds 200 million

people. The OSHA ETS, however, fails to account for the more than 50 percent of

the population that is now naturally immune. Far from being narrowly tailored, it is

ludicrously overbroad. In addition, OSHA fails to consider the damage done to those

naturally immune people forced to take the injections, who are placed at greater

risk of harm from the injections in both the short term and the long term. 42

37 UW Medicine. “Antibody neutralizes SARS and COVID-19 coronaviruses.” News

Release. (May 18, 2020). https://newsroom.uw.edu/news/antibody-neutralizes-sars-and-
covid-19-coronaviruses
38 Krammer, F. “Comment: Correlates of protection from SARS-CoV-2 infection.” The
Lancet. Vol 397, Issue 10283, P1421-1423. (April 17, 2021). https://www.thelancet.com/
journals/lancet/article/PIIS0140-6736(21)00782-0/fulltext
39 Dan, J. M., et al. “Immunological memory to SARS-CoV-2 assessed for up to 8
months after infection.” Science, 371:6529. (January 6, 2021). https://doi.org/10.1126/
science.abf4063
40 Turner, J.S., et al. “SARS-Co V-2 infection induces long-lived bone marrow plasma
cells in humans.” Nature 595: 421-425. (2021). https://pubmed.ncbi.nlm.nih.gov/34030176/
41 Physicians for Informed Consent. “SARS-CoV-2 COVID-19: What You Need To
Know.” (August 2021). https://physiciansforinformedconsent.org/wpcontent/uploads
/2021/08/PIC-COVID-19-Disease-Information-Statement-DIS-August-2021.pdf
42 Raw, R., et al. “Previous COVID-19 infection, but not Long-COVID, is associated
with increased adverse events following BNT162b2/Pfizer vaccination.” J Infect 83(3):381-
412. (September 2021). https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8164507/

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 c. The ETS fails to consider available treatment options

The ETS is also not narrowly tailored in that it fails entirely to consider

highly effective low risk treatments that make Covid-19 injections unnecessary.

Ivermectin — a cheap, safe, widely available generic medication, whose

precursor won the Nobel Prize in Medicine in 2015 — treats and cures Covid-19 in

both the early infectious stage and later stages. 43 The evidence is both directly

observed in multiple randomized controlled trials and epidemiological evidence

worldwide. There are now more than seventy (70) studies demonstrating its efficacy

as well as noting that nations that use ivermectin see their death rates plummet to

one percent of the death rates of nations that do not.

Hydroxychloroquine (HCQ) is a cheap, safe, widely available generic

medication used billions of times annually in all countries around the world,

including the United States, where for decades it has been prescribed daily for

rheumatoid arthritis and lupus. HCQ treats and cures Covid-19 effectively in the

early infectious stage. HCQ also provides substantial reduction in mortality in later

stages. 44 There are now more than 300 studies demonstrating its efficacy and

nations that use HCQ have 1–10 percent of the death rate of nations that do not.

HCQ is on the WHO’s List of Essential Medications that all nations should always

have available. Chloroquine (an earlier version of HCQ) has been in continuous use

43 Ivm-meta. “Ivermectin for COVID-19: real-time meta analysis of 71 studies.”

(December 26, 2021). https://ivmmeta.com/ivm-meta.pdf
44 HCQ Meta. “HCQ for COVID: real-time meta analysis of 303 Studies.” (December23,
2021). https://hcqmeta.com/; See especially F. Taieb, et al. “Hydroxychloroquine and
Azithromycin Treatment of Hospitalized Patients Infected with SARS-CoC-2 in Senegal
from March to October 2020.” (October 2020).

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for Covid-19 in China since February 2020. 45

Budesonide, a cheap, safe, widely available generic inhaler medication used

commonly in the United States, typically for emphysema, effectively treats Covid-19

while in the early infectious stage. 46 This was published in The Lancet in April

2021. 47

Monoclonal antibodies are approved for Covid-19 early treatment and are

highly effective and universally recognized as safe. 48

The evidence is overwhelming that low Vitamin D levels are linked to poor

outcomes in Covid-19. 49 Vitamin D therapies are routinely used and being

evaluated in trials by ClinicalTrials.Gov. 50

The FDA very recently gave Emergency Use Authorization to two more

45 Gao, J., et al. “Breakthrough: Chloroquine phosphate has shown apparent efficacy in
treatment of COVID-19 associated pneumonia in clinical studies.” Bioscience Trends, 14:1,
72-73. (2020). https://www.jstage.jst.go.jp/article/bst/14/1/14_2020.01047/_article
46 Ramakrishnan, S. et al. “Budesonide Dosing for Outpatient COVID per the Oxford
RCT.” University of Oxford, England. (February 8, 2021). https://www.medrxiv.org/content/
10.1101/2021.02.04.21251134v1
47 Ramakrishnan, S. et al. “Inhaled Budesonide in the treatment of early COVID-19
(STOIC): a phase 2, open-label randomized controlled trial.” Respiratory Medicine, The
Lancet, Vol 9, Issue 7, 763-772. (July 1, 2021). https://www.thelancet.com/article/S2213-
2600(21)00160-0/fulltext
48 FDA. “Coronavirus (COVID-19) Update: FDA Authorizes New Long-Acting
Monoclonal Antibodies for Pre-exposure Prevention of COVID-19 in Certain Individuals.”
FDA News Release. (December 8, 2021). https://www.fda.gov/news-events/press-
announcements/coronavirus-covid-19-update-fda-authorizes-new-long-acting-monoclonal-
antibodies-pre-exposure
49 Vassiliou, A. et al. “Low 25-Hydroxyvitamin D Levels on Admission to the Intensive
Care Unit May Predispose COVID-19 Pneumonia Patients to a higher 28-Day Mortality
Risk: A Pilot Study on a Greek ICU Cohort.” National Library of Medicine, National
Institute of Health. (December 2020). https://pubmed.ncbi.nlm.nih.gov/33316914/
Bychinin, M. “Low Circulating Vitamin D in Intensive Care Unit-Admitted COVID-
19 Patients as a Predictor of Negative Outcomes.” J Nutr. 151(8):2199-2205. (August 7,
2021). https://pubmed.ncbi.nlm.nih.gov/33982128/
50 NIH. “Vitamin D and COVID-19 (VIVID).” NCT04536298. (June 14, 2021). https://
clinicaltrials.gov/ct2/show/NCT04536298

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antiviral pills: Merck’s molnupiravir51 and Pfizer’s Paxlovid. 52

A narrowly tailored approach would be evidence-based and at most impinge

the rights of only those at proven risk of adverse consequences from infection. But

the ETS instead treats U.S. citizens as livestock, each to be injected simply because

they work for a company with 100 or more employees. This is a result the

Constitution does not allow, even if it is interpreted to provide OSHA with the

authority to promulgate the ETS at issue.

CONCLUSION

The Covid-19 injections do not confer immunity, and therefore do not meet

the definition of a vaccine. They are instead treatments and must be analyzed as

such. It is a fundamental human right to refuse a medical treatment, as this Court

has held. Under the Fifth Amendment’s Due Process Clause, strict scrutiny must be

applied in the Court’s analysis of the OSHA ETS. Because no compelling state

interest is served by the ETS, and even if it were, the ETS is a sledgehammer

approach rather than a narrowly tailored approach, the ETS cannot survive strict

scrutiny analysis.

For the foregoing reasons, this Court should grant the emergency

51 FDA. Coronavirus (COVID-19) “Update: FDA Authorizes Additional Oral Antiviral

for Treatment of COVID-19 in Certain Adults.” FDA News Release. (December 23, 2021).
https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-
authorizes-additional-oral-antiviral-treatment-covid-19-certain
52 FDA. “Coronavirus (COVID-19) Update: FDA Authorizes First Oral Antiviral for
Treatment of COVID-19. FDA News Release.” (December 22, 2021). https://www.fda.gov/
news-events/press-announcements/coronavirus-covid-19-update-fda-authorizes-first-oral-
antiviral-treatment-covid-19

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applications.

Respectfully submitted,

GREGORY J. GLASER*
4399 Buckboard Drive #423
Copperopolis, CA 95228
Telephone: (925) 642-6651
greg@gregglaser.com

GEORGE R. WENTZ, JR.

The Davillier Law Group
935 Gravier Street, Ste. 1702
New Orleans, Louisiana 70112
Telephone: (504) 582-6998
gwentz@davillierlawgroup.com

Counsel for Amicus Curiae

America’s Frontline Doctors
* Counsel of Record

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