Gov. DeSantis has lost a key vaccine ruling on cruises; federal judge blocks state law

By: - August 9, 2021 6:41 pm

The Norwegian Gem is scheduled to sail from Miami on Aug. 15, 2021. Credit: NCLH

A federal trial judge has delivered a major legal defeat to Gov. Ron DeSantis, blocking the state from  forbidding ships from demanding proof that passengers have been vaccinated against COVID-19.

U.S. District Judge Kathleen Williams in Miami delivered the 59-page ruling on Sunday, issuing an injunction that frees Norwegian Cruise Line Holdings to begin voyages from Florida ports with the line’s passenger-vaccination requirement intact.

Opposition to so-called “vaccine passports” has been a major feature of DeSantis’ COVID response. Arguing in favor of personal medical privacy, he issued an executive order barring businesses from demanding proof of vaccination and also signed into law legislation to that effect.

However, Williams concluded that the Norwegian was likely to succeed with legal claims alleging violations of its First Amendment rights and that the state law would impose a substantial undue burden on its right to operate.

The court case by Norwegian named as the defendant the DeSantis administration’s Florida Surgeon General Scott Rivkees.

DeSantis Press Secretary Christina Pushaw issued a written statement vowing to appeal.

“We disagree with the judge’s legal reasoning and will be appealing to the 11th Circuit Court of Appeals.  A prohibition on vaccine passports does not even implicate, let alone violate, anyone’s speech rights, and it furthers the substantial, local interest of preventing discrimination among customers based on private health information,” she said.

“This order will now allow the company to operate in the safest way possible with 100 percent vaccination of all guests and crew when sailing from Florida ports,” Norwegian said in a written statement.

“Nothing takes priority over the health and safety of the company’s guests, crew, and the communities visited and its commitment to them is paramount. The company’s first sailing from Florida is scheduled on Aug. 15, 2021 on Norwegian Gem departing from Miami.”

Williams noted that the state would allow cruise ships to require intrusive and costly COVID testing of passengers unwilling to declare their vaccination status. Furthermore, the law forbids only a demand for documentation of vaccinations — nothing in it would bar crews from asking for oral affirmation, she wrote.

She noted that cruise ships were an early vector for COVID infections.

“NCLH has also shown that if they are required to comply with the statute, they would suffer irreparable injury from the loss reputation, trust, and goodwill. The undisputed record establishes that if plaintiffs could not require passengers to provide COVID-19 vaccination documentation, the company would have no other reliable method for ensuring that all passengers have been vaccinated,” Williams wrote.

The line would either have to cancel trips or let passengers sail unprotected, she added.

“Either option would injure NCLH’s reputation, trust, and goodwill among customers who were promised a vaccination requirement before Oct. 31, 2021, as well as the 20,000 people who have already booked tickets for voyages on ships departing from or arriving to Florida between now and January 2022.”

Williams also rejected the state’s request that she transfer Norwegian’s case to the Middle District of Florida, where U.S. District Judge Steven Merryday agreed with the DeSantis administration that the U.S. Centers for Disease Control and Prevention lacked authority to require cruise ships to demand proof of vaccination for passengers and crew.

The cases differed, Williams said, because Norwegian was challenging state law and policy, not the federal regulations.

“This order will now allow the company to operate in the safest way possible with 100 percent vaccination of all guests and crew when sailing from Florida ports,” Norwegian said in a written statement.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.