Schools Can’t ‘Forcibly Vaccinate’ Kids Without Parents’ Consent, North Carolina Supreme Court Rules

Family & Society | Rights & Freedoms

March 24, 2025

Originally posted by: Children's Health Defense

A lawsuit filed by the mother of a 14-year-old son given a COVID-19 vaccine at school without consent can proceed, the Supreme Court of North Carolina ruled late last week.

The ruling opens the door for parents to sue schools and health clinics over the administration of COVID-19 vaccines.

Emily Happel sued the Guilford County Board of Education and the Old North State Medical Society in August 2022 on behalf of her son, Tanner Smith, alleging battery and violation of state and federal constitutional provisions.

North Carolina’s Chief Justice Paul Newby ruled the case can proceed because the federal Public Readiness and Emergency Preparedness (PREP) Act does not preempt state law requiring parental consent for vaccination.

However, in agreement with two lower courts, Newby rejected Happel’s battery claim, finding that the PREP Act preempts injury under tort law.

The case will now return to the North Carolina Court of Appeals to address questions relating to state law and the state Constitution.

‘Greatest intrusions on civil liberties in the peacetime history of this country’

Writing for the majority, Newby said that during the COVID-19 pandemic, “we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country.” He said the case addressed the “right of a competent person to refuse forced, nonmandatory medical treatment.”

Newby wrote: “We agree that the state constitution protects a parent’s right to control her child’s upbringing, including her right to make medical decisions on her child’s behalf.”

Two of the court’s associate justices, Tamara Barringer and Philip Berger Jr., wrote a concurring agreement stating that they wanted the ruling to go further in rolling back the PREP Act’s immunity shield.

In her dissent, Associate Justice Allison Riggs said the language of the PREP Act and the congressional intent in drafting the law was “clear and obvious.” However, Riggs acknowledged that the North Carolina state Constitution protects parental rights and rights to bodily integrity and questioned the PREP Act itself.

“Because I find both the PREP Act and constitutional analyses fundamentally unsound, I respectfully dissent,” Riggs wrote.

Steven Walker, the plaintiffs’ attorney, said he is “very pleased” with the ruling.

“While we would have, of course, loved to see the battery claim reinstated as well, we believe that the Court decision was very favorable … and have no real complaints,” Walker said.

Addressing the PREP Act’s liability shield, Walker said the act “has a purpose, and that purpose is to provide immunity protections in situations when it might be difficult to determine the safety of a countermeasure during a time of crisis.”

However, the PREP Act “was never intended to allow the government to trample on the clear constitutional rights of its citizens,” Walker said.

He said the ruling is “important even outside the issue of the PREP Act in that the Court gave its clearest explanation to date concerning the rights of parents to make medical decisions for their children under the North Carolina constitution.”

Children’s Health Defense (CHD) supported the lawsuit, filing an amicus brief on behalf of the plaintiffs last year. The brief argued that the lower courts erred in their interpretation of the PREP Act, stating:

“The lower courts wrongly interpreted PREP as nullifying the North Carolina common, statutory, and constitutional law that would otherwise govern those activities and provide a basis for relief to the Plaintiffs, including laws concerning battery, parental rights, bodily autonomy, and informed consent.”

An amicus brief, a term derived from the Latin phrase “amicus curie,” meaning “friend of the court,” is filed by non-parties to a case to provide information that has a bearing on the issues and assist the court in reaching a decision.

CHD General Counsel Kim Mack Rosenberg, said, “While this is a very important victory, it is nonetheless narrow.” She said the case “underscores the importance of continuing to fight for the recognition and application of fundamental rights to bodily integrity and freedom from unwanted medical interventions.”

Ray Flores, senior outside counsel for CHD, said the ruling “recognized the fine line between the PREP Act’s protection for loss from vaccine injury and parental rights under a state Constitution.”

“North Carolina is unique among states since written permission from a parent or legal guardian is required before a healthcare provider may administer an unlicensed vaccine,” Flores said. “Without this parental consent law in place, the outcome would have been much different.”

The law in question, N.C. General Statutes Section 90-21.5(a1), states:

“Notwithstanding any other provision of law to the contrary, a health care provider shall obtain written consent from a parent or legal guardian prior to administering any vaccine that has been granted emergency use authorization and is not yet fully approved by the United States Food and Drug Administration to an individual under 18 years of age.”

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Court found school ‘forcibly vaccinated’ Smith

The case stems from an August 2021 outbreak of COVID-19 among some players on Western Guilford High School’s football team, where Smith was a member. Guilford County Schools sent a letter to his mother and stepfather informing them that team activities were suspended until players were tested or medically cleared.

According to the letter, the school district had set up a COVID-19 testing site, run by Old North State Medical Society. However, Smith and his family were not informed that the site also operated as a COVID-19 vaccination clinic.

When Smith arrived at the site, workers gave him a form to complete which he believed was related to the COVID-19 test. However, clinic workers also wanted to vaccinate Smith and unsuccessfully attempted to contact his mother to obtain consent.

Smith didn’t want to be vaccinated and didn’t have a signed consent form. Clinic workers did not attempt to contact Smith’s stepfather, who was waiting in the parking lot.

Instead, one of the clinic workers instructed another to “give it to him anyway” and, despite his objections, Smith was injected with a dose of the Pfizer COVID-19 vaccine, which at the time was available only under emergency use authorization (EUA). The vaccine’s EUA status places it under the purview of the PREP Act.

“Medical workers affiliated with a public school forcibly vaccinated a fourteen-year-old boy despite knowing they lacked consent from both the child and his mother,” the ruling stated.

In February 2023, a lower court dismissed the lawsuit, citing the immunity provided by the PREP Act. In March 2024, the North Carolina Court of Appeals affirmed the trial court’s dismissal of the lawsuit, leading the plaintiffs to file an appeal with the Supreme Court of North Carolina in April 2024.

The lower courts held that the PREP Act preempted state laws, including the statute requiring parental consent to administer a vaccine to a minor.

Earlier this month, the Maine Supreme Judicial Court upheld a lower court ruling that school medical staff who gave a COVID-19 vaccine to a minor without obtaining parental consent were protected by the PREP Act and cannot be held liable.

That ruling came after the U.S. Supreme Court refused to review a lower court’s ruling in a similar lawsuit in Vermont, where a school gave a COVID-19 vaccine to a 6-year-old boy, despite his and his parents’ objections. Last year, the Vermont Supreme Court ruled that the PREP Act shielded school officials from liability.

In January, the outgoing Biden administration extended the PREP Act’s liability shield for COVID-19 vaccines until 2029.

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