Brooklyn, NY—Access to public places based on discrimination violates NY law even if a pandemic exists, and no such pandemic exists to warrant Mayor de Blasio's overreaching Executive Order #5, argued Sheldon Karasik, January 11, 2022 in court, with the support of America's Frontline Doctors (AFLDS).
AFLDS is challenging de Blasio's unlawful order on the grounds that it has a disparate impact on Blacks, rendering those who choose not to take the vaccine second-class citizens. As Attorney Karasik argued in court, before Judge Francois A. Rivera, in Bravo, et al, v. de Blasio, the government's own study concedes that Blacks are adversely impacted.
Karasik cited the state's study, of May 2021, which looked at the concerns that NYC residents have about the vaccine. Among the findings are that 56% of Blacks, as compared to only 32% of Whites, were "very concerned" that they did "not have enough information about the vaccine." Further, 35% of Black residents were "very concerned about missing work due to side effects," as compared to 19% of Whites who were similarly very concerned.
Beyond the impacts on Blacks, Karasik challenged the notion that an emergency still exists. "There has to be a factual basis for any kind of emergency order and the fact that a virus could get worse in the future... doesn't provide a factual basis today...," Karasik argued before the Court. The vaccines do not stop the current strain of the virus, Omicron, from being transmitted, nor do they stop any of the COVID-19 viruses from being transmitted, and they don't stop people from being infected.
"Their own expert Dr. Varma said that it was a lot worse initially when the first state emergency order was issued in March 2020... it's passed now - that was in November with Delta, if it passed in November with Delta, in terms of the emergency...certainly, it's passed even further today with Omicron, and they have to have the factual record. It's their burden to make the factual record. And that's why it's arbitrary and capricious," Attorney Karasik forcefully stated.
The oral argument lasted for approximately one and half hours with Attorney Karasik speaking for almost a full hour. Attorney Karasik effectively drove home the point that "Blacks are locked out of society" with this measure when there are far less restrictive means that the government could employ.
AFLDS's founder, Dr. Simone Gold noted, "The consequences of not getting the vaccine constitute a deprivation of a liberty right. Attorney Karasik made this point effectively, pointing to Cruzan and the Court's stance that there is a fundamental right to refuse medical treatment. This is a medical treatment, not a vaccine."
Karasik posed, "If the vaccine works, then why do we have to exclude the unvaccinated? What threat are they? And if the vaccine doesn't work, then why is the state forcing it?"
The government's position is that an emergency can go on indefinitely, along with emergency powers, and there are no less restrictive means than locking the unvaccinated out of public places, though their own expert Dr. Jay Varma notes that masking, social distancing and washing hands are effective, as does Dr. Paul Elias Alexander, plaintiff’s expert. AFLDS Associate Medical Director Dr. Daniel Stock echoed Attorney Karasik's argument that "comparisons to the smallpox pandemic are hollow, because, there, vaccines were effective at stopping transmission during a pandemic that far exceeded the death rate here, associated with COVID." Attorney Karasik pointed out that "even the OSHA Mandate" under review by the Supreme Court, "recognizes medical and religious exemptions, not this, this excludes the world."
Dr. Gold added, "This vaccine, which is a treatment, not a vaccine, does not prevent the virus, or the transmission of the virus; it does not immunize someone against the disease. The emergency must end now, before many more lives and livelihoods are destroyed."