By DAVID DUPONT
BG Independent News
Bowling Green State University has asked Wood County Common Pleas Judge Joel Kuhlman to dismiss a lawsuit challenging its vaccine mandate.
In a motion filed Wednesday (Jan. 26) by attorney James Yates, of Eastman & Smith, BGSU asserts that three of the plaintiffs, students Carolyn Dailey, Gabrielle Downard, and Amy Vorst had no standing because they had applied for and received exemptions under the policy. The other plaintiff Andrea Hoerig, an assistant teaching professor in the College of Education and Human Development, did not apply for an exemption.
The lawsuit filed in the last week of December by Thomas Connors, of Mendenhall Law Group, contends the mandate violates state law, the Ohio Constitution and Ohio criminal statutes
The BGSU motion goes on to state that the mandate and protocols do not, as asserted in the lawsuit, interfere with any fundamental rights. “There is no constitutional right to wear, or refuse to wear, a mask or face covering,” the motion states. Also, “(T)here is also no fundamental right to refuse to be tested for a virus before entering the public.”
It furthers asserts there is no constitutional right either to get a college education nor to work.
While plaintiffs argued that recent state legislation removed the authority to require a vaccine, the law referred to applies to boards of health, the motion maintains. State universities operate under their own authority.
Also, the mandate is clear in that anyone not wishing to be vaccinated can ask for an exemption, and that those who receive exemptions are subject to the same protocols as vaccinated individuals, and are not required to undergo additional testing.
The suit also counters that, despite the contention by the plaintiffs, there is an FDA approved vaccine. The lawsuit said that Pfizer BioNTech is not approved because it is now marketed under the name Comirnaty.
In a statement, Alex Solis, university spokesperson, said: “BGSU filed a motion to dismiss the litigation challenging the University’s COVID-19 vaccination and exemption plan. Not only do the plaintiffs lack standing, but the University’s COVID-19 protocols and guidelines do not interfere with any constitutional rights, and we fundamentally believe BGSU has the authority to create and implement a balanced COVID-19 response to focus on the health and safety of our community.”
Warner Mendenhall from the Mendenhall Law Group said that the claims in the motion for dismissal were “off base,” and that a response would be filed.
“This is a civil rights case,” he said.
People have a right to bodily autonomy under the state constitution and forcing them to wear ” a medical device,” a mask, violates that. “People need to realize a mask is a medical device.”
He also contended that though Comirnaty is the same formulation as Pfizer BioNTech it is “legally distinct” and “that’s the key issue.”
