Johanna Jainchill
As expected, Gov. Ron DeSantis was not happy with the U.S. District Court's ruling Sunday that Norwegian Cruise Line Holdings (NCLH) can require that passengers have proof of vaccination to sail, and said the state plans to appeal the ruling.
"We disagree with the judge's legal reasoning and will be appealing to the Eleventh Circuit Court of Appeals," the Governor's office said in a statement. "A prohibition on vaccine passports ... furthers the substantial, local interest of preventing discrimination among customers based on private health information."
The beat goes on
Florida Gov. Ron DeSantis' office said it will appeal a federal judge's ruling allowing Norwegian Cruise Line Holdings' brands to require proof of vaccination to sail from Florida.
Judge Kathleen Williams of the U.S. District Court in Southern Florida disagreed. In a 59-page order granting a preliminary injunction, she wrote that NCLH showed it would suffer irreparable injury absent an injunction and that an injunction was in the public interest.
The case is not over -- another case involving DeSantis and the cruise industry, in which Florida sued the CDC to overturn the Conditional Sailing Order -- flip-flopped three times in court before landing on the state's side.
However, Judge Williams poked some big holes in the argument that DeSantis has long been making about so-called "vaccine passports," which he contends violate an individual's medical privacy.
The judge found no "evidentiary support to show that residents have experienced intrusions on their medical privacy or discrimination because some businesses, including cruise lines, have required Covid-19 vaccination documentation."
However, the judge argued, the Florida law is practically encouraging the cruise lines to discriminate against unvaccinated guests because the law doesn't forbid them from doing so. She cited cruise lines that subject unvaccinated guests to mandatory Covid tests throughout the cruise -- paid for by the passenger. Unvaccinated guests also are restricted from certain restaurants and other venues on the ship, and they must purchase the cruise line's travel insurance with Covid-19 coverage.
"Thus, [the law] does not prohibit businesses from treating unvaccinated passengers differently by charging them more while offering them less. Furthermore, the Statute does not prevent cruises from continuing to offer adult-only cruises that exclude children, who are a significant cohort of the unvaccinated population," she said.
The judge also noted that discrimination against unvaccinated guests would probably hold up in court. "Courts have suggested that the unvaccinated population is not a protected class that enjoys a fundamental Constitutional right to remain unvaccinated," Judge Williams wrote.
Regarding medical privacy, the judge said that by singling out Covid-19 vaccination documentation in terms of protection, Florida "does not safeguard against any hypothetical violation of medical privacy caused by exchanging other medical or health-related documentation. Businesses and employers are free to require Covid-19 test results, hospital records, other vaccination records, as well as information regarding exposure to third parties with Covid-19. Defendant fails to explain why Covid-19 vaccination documents are more medically sensitive or need more protection than these other documents."
There are other arguments the judge used to side with NCLH, such as the company's likelihood to suffer "significant financial and reputational harms absent an injunction," and the state not articulating any "evidence of harms that the state would suffer if an injunction was entered."
She also found that NCLH demonstrated "that public health will be jeopardized if it is required to suspend its vaccination requirement" while Florida identifies "no public benefit from the continued enforcement" of the law.
Williams is one judge, and the state won at the appeals court level in its lawsuit against the CDC. But those were different arguments, and the state's medical privacy laws were not on trial as they are now.
In fact, the state won in large part by proving the law was overly burdensome and harmful to the multibillion-dollar cruise industry, which is one of the arguments NCLH is making on its behalf. In the CDC-Florida case, the judge actually wrote that absent an injunction of the Conditional Sailing Order, Florida "faces an increasingly threatening and imminent prospect that the cruise industry will depart the state," another argument that NCLH has made.
Stay tuned.