Incyte CEO Herve Hoppenot

In Doe v. Incyte Corporation, Case 2:21-cv-05956, Central District of California, employees of a big pharma company (Incyte) challenge the employer’s COVID vaccination mandate under the California State Constitution, article 1, section 1.

Incyte imposed an August 1, 2021 deadline for its employees to all receive a COVID vaccine.  The Complaint to stop the mandate (originally filed in Los Angeles Superior Court) is here.  A motion for preliminary injunction and temporary restraining filed to stop the August 1 vaccination mandate deadline is  here.  Incyte then postponed its August 1 vaccine deadline mandate, putting all non-vaccinated employees on paid administrative leave.  This rendered the TRO motion moot, for the time being.

Analysis of California Law

Article I, section 1 of the California Constitution is an enumeration of the inalienable rights of all Californians. Privacy is declared to be among those rights.  Constitutional privacy includes the right to make intimate personal decisions or conduct personal activities without observation, intrusion, or interference. The employees’ rights to decide what is done with their own bodies, and to consent or not consent to an experimental medical treatment with unknown risks, is just such an intimate personal decision protected under our Constitution.

The Incyte employees’ case involves the autonomy privacy right referenced by the California Supreme Court in Hill v. National Collegiate Athletic Assn., 26 Cal.Rptr.2d 834, 842 (Cal. 1994): the right to make intimate personal decisions or conduct personal activities without observation, intrusion, or interference.

The privacy standards that guide California Courts in implementing this privacy right arise principally under the Protection of Human Subjects in Medical Experimentation Act, HSC Ch. 1.3. Human Experimentation [HSC §§24170 – 24179.5].  HSC §24171 declares the Medical Experimentation Act’s primary legislative intent to be this:

Section 14172 of the Medical Experimentation Act provides an “experimental subject’s bill of rights” which, among other things, includes the experimental subject’s rights to “(j) Be given the opportunity to decide to consent or not to consent to a medical experiment without the intervention of any element of force, fraud, deceit, duress, coercion, or undue influence on the subject’s decision” (emphasis added).

Does the Medical Experimentation Act offer guidance for development of a privacy standard under Constitution article I, section 1 with respect to a person’s right to voluntarily choose whether to accept an unproven, experimental vaccine, or not?  The answer to that question must certainly be “yes,” for at least the following reasons:

First, The Medical Experimentation Act’s statement of legislative intent and subject’s bill of rights express clear public policies of this State concerning control of one’s own body to accept, or not accept, unproven medical treatments. A commonsense and plain reading of the Medical Experimentation Act shows it is a natural legislative extension of privacy rights guaranteed under Constitution article I, section 1.

Second, that a mandatory COVID vaccination requirement is not actually administered by the employer—but by a third-party medical provider—does not change the fact that the employer is the proximate cause of force and undue influence causing the experimental injection of the employee for purposes of the Medical Experimentation Act.  Thus, the intent of the Act applies to Incyte, even though a third party would administer the COVID vaccine injection.

Third, there is no decision more intimate or personal than to consent, or not consent, to an experimental medical treatment: that person’s life may literally hangs in the balance. No other person should be allowed to assess the risks and benefits of an unproven medial treatment on behalf of that person.  No employer should be able to make a potential life-or-death decision for its employees as a condition of continued employment simply to burnish its own public image in the marketplace, or to satisfy institutional shareholders’ interest in earning larger profits from their vaccine company holdings.

The right to determine what is done to one’s own body, and to voluntarily consent or not consent to an unproven medical treatment may be the foremost intimate personal decision a person ever faces.  A person’s employer has no legal, moral, or ethical right to make that decision for an employee, or to coerce that decision, or exercise undue influence or force with respect to that decision.  And make no mistake: conditioning ongoing employment on consent to a COVID vaccine injection is an exercise of undue influence, force, and coercion. A person who had a job yesterday but does not have that job today—because he or she refused to take a COVID vaccination—faces existential survival threats that follow from lack of income.


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