In a victory for Gov. Ron DeSantis, a sharply divided federal appeals court Thursday rejected arguments by Norwegian Cruise Line Holdings that Florida’s ban on so-called “vaccine passports” is unconstitutional.
A panel of the 11th U.S. Circuit Court of Appeals, in a 2-1 decision, overturned a preliminary injunction that prevented the state from enforcing the ban on the cruise-ship company.
Thursday’s decision came three days after Norwegian announced that it would no longer require passengers to show proof of vaccination against COVID-19 before boarding ships. It also came two days after the Miami-based company said in court filings that the case was moot.
U.S. District Judge Kathleen Williams in August 2021 issued the preliminary injunction, backing Norwegian’s arguments that the ban violated the First Amendment and what is known as the dormant Commerce Clause of the U.S. Constitution.
But Thursday’s 55-page majority opinion disputed both of those conclusions, in part saying the ban was about regulating “economic conduct” and not speech under the First Amendment. Also, in rejecting the dormant Commerce Clause arguments, the majority opinion pointed to the state’s interest in preventing discrimination.
It said a law passed last year to prevent vaccine passports “directly protects a class of individuals from being ostracized.”
“Like any anti-discrimination statute, it protects these individuals by preventing businesses from excluding them from the market,” Chief Judge William Pryor wrote in the decision joined by Judge Andrew Brasher. “The statute prevents real harm, not some abstract economic impact. Without this statute, unvaccinated Floridians risk being turned away from the businesses that make their lives possible — grocery stores, restaurants, fitness gyms, clothing stores, barber shops and hair salons, and even pharmacies.”
But Judge Robin Rosenbaum, in a 67-page dissent, said legal precedent about the dormant Commerce Clause requires the court to “balance the local benefits a state’s law brings against the burdens that law imposes on interstate and foreign commerce.”
She pointed to potentially broad harms from the ban on vaccine passports, saying it “will facilitate the spread of COVID-19 onboard cruise ships by depriving cruise lines of the ability to verify passengers’ vaccination statuses.”
“(The) more people who are infected with COVID-19, the greater the burden on commerce,” Rosenbaum wrote. “That’s because people who are confined to beds and hospitals or who are otherwise unable to work because of the lingering effects of COVID-19 and long COVID — not to mention those who die from the virus — cannot participate in commerce as they would if they were not infected. They cannot go to their jobs and schools, consume goods and services, or participate in many other commercial activities. And at the risk of stating the obvious, dead people can’t participate in commerce at all. Nor can people who are on ventilators or in the intensive care unit.”
DeSantis last year made a priority of blocking businesses, including the cruise industry, from requiring proof of vaccinations from customers. He issued an executive order preventing the use of vaccine passports, and the Republican-controlled Legislature later put the ban into law.
The cruise industry shut down in 2020 after high-profile outbreaks of COVID-19 and also grappled with federal Centers for Disease Control requirements about safely resuming operations.
Norwegian filed the lawsuit in July 2021. After Williams ruled in favor of the company, the state took the case to the Atlanta-based appeals court, which heard arguments in May.
The appeals-court ruling might not have much day-to-day effect on Norwegian, which issued a news release Monday that said it had “updated its global health and safety protocols by removing all COVID-19 testing, masking and vaccination requirements,” with the change taking effect Tuesday.
Lawyers for the company filed documents Tuesday in district court and the appeals court suggesting that the case was moot and that the preliminary injunction should be scrapped. The mootness issue was not addressed in Thursday’s ruling.
“In light of these updated policies, NCLH (Norwegian Cruise Line Holdings) respectfully suggests that this appeal is likely moot,” the company’s lawyers wrote in one of the documents. “This is an appeal from a preliminary injunction against a statute that prohibits a business practice NCLH is no longer engaging in, for now and the foreseeable future. NCLH recognizes that it cannot claim relief from a statute that is not presently posing injury to NCLH.”