Scott Troogstad v. City of Chicago ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3200
BARBARA LUKASZCZYK, et al.,
Plaintiffs-Appellants,
v.
COOK COUNTY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:21-cv-05407 — Robert W. Gettleman, Judge.
____________________
No. 21-3231
JOHN HALGREN, et al.,
Plaintiffs-Appellants,
v.
CITY OF NAPERVILLE, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:21-cv-05039 — John Robert Blakey, Judge.
____________________
2 Nos. 21-3200, et al.
No. 21-3371
SCOTT TROOGSTAD, et al.,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO and JAY ROBERT PRITZKER,
Governor,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:21-cv-05600 — John Z. Lee, Judge.
____________________
ARGUED MAY 26, 2022 — DECIDED AUGUST 29, 2022
____________________
Before BRENNAN, SCUDDER, and ST EVE, Circuit Judges.
BRENNAN, Circuit Judge. In these appeals, which we con-
solidate for decision, three district judges denied motions for
preliminary injunctions against state and local COVID-19 vac-
cine mandates. The plaintiffs argue the mandates violate their
constitutional rights to substantive due process, procedural
due process, and the free exercise of religion. They also con-
tend the mandates violate Illinois state law. Although the
plaintiffs could have presented some forceful legal argu-
ments, they have failed to develop factual records to support
their claims. Because the plaintiffs have not shown a likeli-
hood of success on the merits, we affirm the decisions of the
district judges.
Nos. 21-3200, et al. 3
I. Factual Background
In response to the COVID-19 pandemic, state and local
authorities in Illinois enacted a series of mandates and re-
strictions. The State of Illinois, Cook County Health and Hos-
pitals System, the City of Chicago, and the City of Naperville
each issued an order, policy, or directive requiring certain em-
ployees to vaccinate or regularly test for the virus. Employees
who failed to comply with the mandates would be subject to
disciplinary action, including possible termination. We begin
by briefly summarizing each of the relevant state and local
policies.
The 2021 Illinois Mandate. On September 3, 2021, Governor
Pritzker used his emergency powers under the Illinois Emer-
gency Management Agency Act, 20 ILL. COMP. STAT. 3305/1 et
seq., to issue Executive Order 2021–22 (“2021 Order”). The
2021 Order requires certain healthcare workers to vaccinate,
or test at least weekly, for COVID-19. Workers who fail to
comply with the mandate will not be permitted on the prem-
ises of a healthcare facility. Under the 2021 Order, a “Health
Care Worker” is defined as “any person who (1) is employed
by, volunteers for, or is contracted to provide services for a
Health Care Facility, or is employed by an entity that is con-
tracted to provide services to a Health Care Facility, and (2) is
in close contact” with other persons in the facility for a speci-
fied amount of time. Initially, a “Health Care Facility”
included “any institution, building, or agency … whether
public or private (for-profit or nonprofit), that is used, oper-
ated or designed to provide health services, medical treat-
ment or nursing, or rehabilitative or preventive care to any
person or persons.” According to the Order, “hospitals” and
“emergency medical services” met this definition.
4 Nos. 21-3200, et al.
A worker is exempt from the vaccination requirement if
“(1) vaccination is medically contraindicated,” or “(2) vac-
cination would require the individual to violate or forgo a sin-
cerely held religious belief, practice, or observance.” But
exempt workers still need to “undergo, at a minimum, weekly
testing.” The 2021 Order also provides that “[s]tate agen-
cies … may promulgate emergency rules as necessary to ef-
fectuate” it.
The 2021 Order states it is intended to reduce COVID-19
exposure and transmission: “health care workers, and partic-
ularly those involved in direct patient care, face an increased
risk of exposure to COVID-19.” Requiring these workers to
receive a “vaccine or undergo regular testing can help prevent
outbreaks and reduce transmission to vulnerable individuals
who may be at higher risk of severe disease.” The Order states
that “stopping the spread of COVID-19 in health care settings
is critically important because of the presence of people with
underlying conditions or compromised immune systems.”
The 2022 Illinois Mandate. Ten months later, on July 12,
2022, Governor Pritzker issued Executive Order 2022–16
(“2022 Order”), which re-issued and modified the 2021 Order.
The 2022 Order removes “emergency medical services” and
“IDPH licensed emergency medical service vehicles” from the
definition of a “Health Care Facility.” It also requires that cer-
tain healthcare workers undergo weekly or biweekly testing
only when the level of COVID-19 Community Transmission
is moderate or high, depending on the type of facility.
The Cook County Mandate. Cook County Health and Hos-
pitals System (“Cook County Health”) is an agency of Cook
County, Illinois. On August 16, 2021, it issued a vaccination
policy (“County Health Vaccination Policy”) that required all
Nos. 21-3200, et al. 5
personnel be fully vaccinated by September 30, 2021 as a con-
dition of their employment. 1 The policy applies to all Cook
County Health personnel, including contractors like the Hek-
toen Institute for Medical Research, LLC, a nonprofit organi-
zation that administers medical research grants. Failure to
comply with the County Health Vaccination Policy “consti-
tute[s] gross insubordination and will result in disciplinary
action, up to and including termination.”
The policy permits exemptions “based upon a disability,
medical condition, or sincerely held religious belief, practice,
or observance.” Exemption requests are considered individu-
ally. When reviewing an exemption request, Cook County
Health considers: (1) “the duration of the request (either per-
manent in the case of exemptions or temporary in the case of
deferrals),” (2) “the nature and severity of the potential harm
posed by the request,” (3) “the likelihood of harm,” and
(4) “the imminence of the potential harm.” Exempt personnel
are still “required to comply with preventive infection control
measures established by the Health System,” which could in-
clude conditions “such as job location, job duties, and shift,
but will minimally include weekly COVID-19 testing and en-
hanced [personal protective equipment] protocols.” At first,
Cook County Health decided to reject any religious accom-
modation request made by a person who had previously
taken the flu vaccine. It remains unclear whether this ap-
proach was formally reversed, but there is no dispute that
1 Several days later, the Cook County President issued an executive
order, which mandated the COVID-19 vaccine for certain Cook County
employees and encouraged County offices to develop their own vaccina-
tion policies.
6 Nos. 21-3200, et al.
Cook County Health later decided to grant religious exemp-
tions.
The City of Chicago Mandate. On October 8, 2021, the City of
Chicago issued a COVID-19 Vaccination Policy (“Chicago
Vaccination Policy”), which required all City employees to be
fully vaccinated by the end of the calendar year. Effective Oc-
tober 15, 2021, all employees, “as a condition of employment,”
had to “either be fully vaccinated against COVID-19” or un-
dergo testing on a “twice weekly basis with tests separated by
3-4 days.” Employees are “responsible for obtaining tests on
their own time and at no cost to the City.” The testing option
expired at the end of the year, at which point employees
would need to be fully vaccinated. The Chicago Vaccination
Policy permits accommodations for a disability, medical con-
dition, or sincerely held religious belief. To receive a religious
accommodation, an employee must fill out a request form, in-
cluding the reason for the exemption, the religious principle
that conflicted with being vaccinated, and the signature of a
religious leader.
The City of Naperville Mandate. On September 9, 2021, the
City of Naperville issued “Naperville Fire Department Spe-
cial Directive #21-01” (“Naperville Special Directive”). Under
that directive, emergency medical technicians and firefighters
employed by Naperville are required to either produce
weekly negative COVID-19 tests or show proof of vaccination.
This mandate is effectively coterminous with the State of Illi-
nois’s 2021 Order.
Nos. 21-3200, et al. 7
II. Procedural Background
Three lawsuits were filed in the Northern District of Illi-
nois, each challenging the Governor’s 2021 Order and one of
the local mandates.
In Troogstad v. City of Chicago, a group of City employees
(“Troogstad plaintiffs”) challenged the Chicago Vaccination
Policy and the 2021 Order. They claimed the regulations vio-
lated their rights to bodily autonomy under the constitutional
doctrines of substantive due process, procedural due process,
and the free exercise of religion. They also claimed the policies
violated the Illinois Health Care Right of Conscience Act. The
Troogstad plaintiffs petitioned for a temporary restraining or-
der against the enforcement of the policies, which Judge John
Lee denied. They then moved for a preliminary injunction.
The Troogstad plaintiffs declined to supplement the record
with witnesses and limited discovery, instead filing a supple-
mental brief in support of their motion. Judge Lee denied that
motion, and the Troogstad plaintiffs appeal that decision.
In Lukaszczyk v. Cook County, a group of Cook County
Health and Hektoen employees (“Lukaszczyk plaintiffs”) chal-
lenged the County Health Vaccination Policy and the 2021 Or-
der. They brought claims implicating substantive due pro-
cess, procedural due process, free exercise of religion, and the
Illinois Health Care Right of Conscience Act. Based on these
claims, the plaintiffs moved for a preliminary injunction to
bar enforcement of the mandates. Judge Robert Gettleman de-
nied that motion from the bench. The Lukaszczyk plaintiffs ap-
peal that decision.
In Halgren v. City of Naperville, employees of the City of
Naperville Fire Department (“Halgren plaintiffs”) challenged
8 Nos. 21-3200, et al.
the Naperville Special Directive and the 2021 Order. The
Halgren plaintiffs named as defendants Governor Pritzker, the
City of Naperville, and Edward-Elmhurst Healthcare
(“EEH”)—a health system which operates a Naperville hos-
pital and coordinates emergency medical services with the
Fire Department. The Naperville Special Directive also stated
that the Edward Hospital EMS System required the Fire De-
partment to “provide a roster of who is vaccinated and a ros-
ter of who will be submitting to weekly testing.” According to
the Halgren plaintiffs, the regulations violated their rights to
privacy and bodily autonomy under the constitutional doc-
trines of substantive due process, procedural due process,
and equal protection. They moved for a temporary restraining
order and preliminary injunction against the policies, as well
as a declaratory judgment that the Governor had exceeded his
statutory authority. The parties later agreed to convert the
Halgren plaintiffs’ combined motion for emergency relief into
a motion only for a preliminary injunction. When given the
opportunity, both parties chose to forgo discovery. Judge
John Robert Blakey denied the Halgren plaintiffs’ motion,
which they now appeal.
III. Mootness and Standing
Two threshold issues for our consideration are whether
certain claims are moot because of the 2022 Order and if cer-
tain parties have standing.
The Constitution limits federal jurisdiction to cases and
controversies. U.S. CONST. art. III, § 2. This limitation applies
“at ‘all stages of review, not merely at the time the complaint
is filed.’” UWM Student Ass’n v. Lovell, 888 F.3d 854, 860 (7th
Cir. 2018) (quoting Ciarpaglini v. Norwood, 817 F.3d 541, 544
(7th Cir. 2016)). A plaintiff has standing if he has “(1) suffered
Nos. 21-3200, et al. 9
an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed
by a favorable judicial decision.” Fox v. Dakkota Integrated Sys.,
LLC, 980 F.3d 1146, 1151 (7th Cir. 2020) (quoting Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016)). “The party invoking federal
jurisdiction bears the burden of establishing these elements.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citation
omitted). The case becomes moot, “[i]f at any point the plain-
tiff would not have standing to bring suit at that time.” Mil-
waukee Police Ass’n v. Bd. of Fire & Police Comm’rs of City of the
Milwaukee, 708 F.3d 921, 929 (7th Cir. 2013). As a general rule,
cases or individual claims for relief are moot when the “issues
presented are no longer ‘live’ or the parties lack a legally cog-
nizable interest in the outcome.” League of Women Voters of
Ind., Inc. v. Sullivan, 5 F.4th 714, 721 (7th Cir. 2021) (quoting
Powell v. McCormack, 395 U.S. 486, 496 (1969)).
A. The 2022 Order
Governor Pritzker’s 2022 Order, which amended the 2021
Order, removed (among other things) the phrase “emergency
medical services” from the definition of a “Health Care Facil-
ity.” This amendment meant the 2021 Order no longer ap-
plied to emergency medical services because employees at
these facilities did not fall within the definition of a healthcare
worker. So, employees of the Chicago and Naperville Fire De-
partments were not subject to the Governor’s vaccination
mandate. As a result, the claims of those plaintiffs against
Governor Pritzker are moot because they seek to enjoin a pol-
icy that no longer applies to them. All other plaintiffs may still
proceed with their claims against the Governor.
10 Nos. 21-3200, et al.
Practically, this means all the Halgren plaintiffs’ claims
against Governor Pritzker are moot, 2 and all the claims made
by Chicago Fire Department employees in Troogstad against
Governor Pritzker are moot. Each of these plaintiffs were con-
sidered healthcare workers because they were part of “emer-
gency medical services,” so they now seek to enjoin an inap-
plicable policy.
B. The Hektoen Employees
Governor Pritzker argues that the Lukaszczyk plaintiffs
lack standing to challenge the 2021 Order because their al-
leged injury is not fairly traceable to the mandate. According
to the Governor, the plaintiffs failed to present evidence that
they objected to the weekly testing option, which was permit-
ted in lieu of vaccination. Each of the Lukaszczyk plaintiffs—
the Cook County and Hektoen employees—testified in their
depositions that they were willing to comply with a testing
option. So, the Governor submits, the plaintiffs’ “alleged inju-
ries of unwanted vaccination and/or employment discipline
are the product of the County’s mandate and are not fairly
traceable to the Governor’s conduct.”
We disagree and conclude that the Lukaszczyk plaintiffs
have standing to challenge the 2021 Order. There is standing
if a plaintiff has a fairly traceable injury that the court could
redress with a favorable decision. Fox, 980 F.3d at 1151. An
injury in fact is “an invasion of a legally protected interest
which is (a) concrete and particularized,” and “(b) actual or
imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at
2The Halgren plaintiffs were the only parties to raise an equal protec-
tion claim, and that claim was made solely against the Governor, so we
have no occasion to reach that constitutional argument.
Nos. 21-3200, et al. 11
560 (cleaned up). An injury is “particularized” if it “affect[s]
the plaintiff in a personal and individual way.” Id. at 560 n.1.
It is concrete if it is “real,” not abstract. Spokeo, Inc., 578 U.S. at
340 (citation omitted). The Lukaszczyk plaintiffs’ successfully
alleged an injury in fact by claiming they were burdened by
scheduling and paying for weekly COVID-19 tests. See
Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017) (“For
standing purposes, a loss of even a small amount of money is
ordinarily an ‘injury.’” (citations omitted)). The burden of
scheduling and paying for weekly tests suffices for an Article
III injury.
The injuries here are also fairly traceable to the defendants
because they are a direct result of the County Health Vaccina-
tion Policy. Both the district court and our court could redress
the plaintiffs’ injuries by enjoining the vaccination mandate,
eliminating the extra costs imposed on the defendants. See id.The Lukaszczyk plaintiffs therefore have standing to challenge
the County Health Vaccination Policy.
C. Edward-Elmhurst Healthcare
EEH argues it is not responsible for the vaccine and testing
mandates so it should not be a party. Standing requires “a
causal connection between the injury and the conduct com-
plained of.” Lujan, 504 U.S. at 560–61 (citing Simon v. E. Ky.
Welfare Rights Org., 426 U.S. 26, 41–42 (1976)). Because EEH
did not issue or require compliance with either the 2021 or
2022 Orders or the Naperville Special Directive, EEH argues
it did not cause the harm the Halgren plaintiffs allege.
On this record, the Halgren plaintiffs do not have standing
against EEH. Like those plaintiffs, EEH was subject to the Na-
perville Special Directive. But there is no evidence that EEH
12 Nos. 21-3200, et al.
helped promulgate it. By its own terms, the Naperville Special
Directive mentions EEH only once, stating that certain em-
ployers must provide EEH with “lists of vaccinated and tested
employees.” Affidavits from an EEH official confirm this ac-
count. The plaintiffs do not respond to this argument, except
to state that EEH’s agent is empowered to supervise, and po-
tentially to suspend, EMS personnel. But the only evidence
the plaintiffs provided are their own affidavits, claiming that
Naperville told them that EEH required compliance with the
Special Directive. That EEH complied with Naperville’s Spe-
cial Directive is not, by itself, enough to prove a causal con-
nection. See Doe v. Holcomb, 883 F.3d 971, 975–76 (7th Cir. 2018)
(noting that when a plaintiff sues a state official to enjoin the
enforcement of a state statute, he must “establish that his in-
jury is causally connected to that enforcement and that enjoin-
ing the enforcement is likely to redress his injury”). So, the
Halgren plaintiffs do not have standing against EEH, and we
need not resolve EEH’s alternative argument that it is not a
state actor. The Halgren plaintiffs may proceed on their claims
against Naperville, but not against EEH.
IV. Preliminary Injunction
Having resolved those justiciability questions, we now re-
view the denial in each case of a motion for a preliminary in-
junction. Such a denial is examined for abuse of discretion.
DM Trans, LLC v. Scott, 38 F.4th 608, 617 (7th Cir. 2022). A dis-
trict court abuses its discretion “when it commits a clear error
of fact or an error of law.” Cassell v. Snyders, 990 F.3d 539, 545
(7th Cir. 2021) (quoting Abbott Lab'ys v. Mead Johnson & Co.,
971 F.2d 6, 13 (7th Cir. 1992)). We consider the district court’s
legal conclusions de novo and its findings of fact for clear
Nos. 21-3200, et al. 13
error. Common Cause Ind. v. Lawson, 978 F.3d 1036, 1039 (7th
Cir. 2020) (citations omitted).
A preliminary injunction is “an exercise of a very far-
reaching power, never to be indulged in except in a case
clearly demanding it.” Cassell, 990 F.3d at 544 (quoting Orr v.
Shicker, 953 F.3d 490, 501 (7th Cir. 2020)). A party seeking a
preliminary injunction “must establish that he is likely to suc-
ceed on the merits, that he is likely to suffer irreparable harm
in the absence of preliminary relief, that the balance of equi-
ties tips in his favor, and that an injunction is in the public
interest.” Winter v. Natural Res. Defense Council, Inc., 555 U.S.
7, 20 (2008) (citation omitted). The first step requires that the
plaintiff “demonstrate that [his] claim has some likelihood of
success on the merits, not merely a better than negligible
chance.” Mays v. Dart, 974 F.3d 810, 822 (7th Cir. 2020) (inter-
nal citation and quotation marks omitted). It “is often deci-
sive.” Braam v. Carr, 37 F.4th 1269, 1272 (7th Cir. 2022). If plain-
tiffs fail to establish their likelihood of success on the merits,
we need not address the remaining preliminary injunction el-
ements. Doe v. Univ. of S. Ind., No. 22-1864, 2022 WL 3152596,
at *3 (7th Cir. Aug. 8, 2022).
We address the remaining claims in the order presented
on appeal, which is the same order in which the district judges
addressed them. Those claims are:
14 Nos. 21-3200, et al.
Halgren v. Lukaszczyk v. Troogstad v.
City of Cook County, City of
Naperville, No. 21-3200 Chicago,
No. 21-3231 No. 21-3371
Judge Gettle-
Judge Blakey man Judge Lee
Substantive
Due X X X
Process
Procedural
Due X X X
Process
Free
X X
Exercise
Illinois
Health Care
Right of X X
Conscience
Act
A. Substantive Due Process
The plaintiffs in each case claim state and local COVID-19
regulations violated their constitutional right to substantive
due process by interfering with their rights to bodily auton-
omy and privacy.
The Fourteenth Amendment provides in part that no state
shall “deprive any person of life, liberty, or property, without
due process of law.” U.S. CONST. amend. XIV, § 1. The Due
Process Clause has a substantive and procedural component.
But “[t]he scope of substantive due process is very limited.”
Campos v. Cook Cnty., 932 F.3d 972, 975 (7th Cir. 2019) (quoting
Tun v. Whitticker, 398 F.3d 899, 902 (7th Cir. 2005)).
Nos. 21-3200, et al. 15
“Substantive due process protects against only the most egre-
gious and outrageous government action.” Id. (citations omit-
ted). When stating a claim, a “plaintiff must allege that the
government violated a fundamental right or liberty.” Id. (cit-
ing Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). Such a
violation must have been arbitrary and irrational. Id. (citations
omitted). Courts should also be “reluctant to expand the con-
cept of substantive due process because guideposts for re-
sponsible decisionmaking in this unchartered area are scarce
and open-ended.” Collins v. City of Harker Heights, 503 U.S.
115, 125 (1992) (citation omitted).
Under this framework, we consider whether the plaintiffs
assert a fundamental right or liberty. If so, we must apply
heightened scrutiny. If not, we review the claim for a rational
basis. Several cases speak to this decision. In Jacobson v. Com-
monwealth of Massachusetts, the Supreme Court considered the
validity of a Massachusetts statute that required all persons
older than 21 receive the smallpox vaccine. 197 U.S. 11, 12
(1905). Failure to comply with the law would result in a $5
fine (about $140 today). Id.; Roman Cath. Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63, 70 (2020) (Gorsuch, J., concurring). The
law’s only exception was for children deemed unfit for vac-
cination who presented a certificate signed by a registered
physician. Jacobson, 197 U.S. at 12. In response to the state law,
the city of Cambridge board of health adopted a regulation
requiring that all city inhabitants be vaccinated or revac-
cinated. Id. at 12–13. Henning Jacobson did not comply with
the mandate and was sentenced to jail until he agreed to pay
the fine. Id. at 13. He appealed, claiming the Massachusetts
law authorizing the local mandate violated his constitutional
rights under the Fourteenth Amendment. Id. at 14.
16 Nos. 21-3200, et al.
The Supreme Court held in Jacobson that a state may re-
quire, without exception, that the public be vaccinated for
smallpox. Id. at 39. The Court reasoned that “[a]ccording to
settled principles, the police power of a state must be held to
embrace, at least, such reasonable regulations established di-
rectly by legislative enactment as will protect the public
health and the public safety.” Id. at 25 (citations omitted). The
Massachusetts legislature “required the inhabitants of a city
or town to be vaccinated only when, in the opinion of the
board of health, that was necessary for the public health or the
public safety.” Id. at 27. Investing “such a body with authority
over such matters was not an unusual, nor an unreasonable
or arbitrary, requirement,” the Court concluded. Id. But “if a
statute purporting to have been enacted to protect the public
health, the public morals, or the public safety” lacks any “real
or substantial relation to those objects, or is, beyond all ques-
tion, a plain, palpable invasion of rights secured by the fun-
damental law, it is the duty of the courts to so adjudge, and
thereby give effect to the Constitution.” Id. at 31 (citations
omitted).
Jacobson, although informative precedent, is factually dis-
tinguishable. The Massachusetts law and Cambridge man-
date were challenged in the wake of the smallpox pandemic,
which was of a different nature than the COVID-19 pandemic
of the last few years. For example, as Judge Blakey found in
Halgren, the smallpox fatality rate among the unvaccinated
was about 26 percent; by contrast, the COVID-19 infection fa-
tality rate was estimated in January 2021 to be somewhere be-
tween 0.0–1.63 percent. Frank Fenner et al., Smallpox and its
Eradication, WORLD HEALTH ORGANIZATION (1988); John P.A.
Ioannidis, Infection fatality rate of COVID-19 inferred from sero-
prevalence data, WORLD HEALTH ORGANIZATION BULLETIN (Oct.
Nos. 21-3200, et al. 17
14, 2020) (stating that COVID-19 “[i]nfection fatality rates
ranged from 0.00% to 1.63%” with “corrected values from
0.00% to 1.54%” and in “people younger than 70 years, infec-
tion fatality rates ranged from 0.00% to 0.31% with crude and
corrected medians of 0.05%”).
In Halgren the district court also found that COVID-19 has
“a low attack rate”3 in contrast to the smallpox pandemic.
Grace E. Patterson et al., Societal Impacts of Pandemics: Compar-
ing COVID-19 With History to Focus Our Response, FRONTIERS
IN PUBLIC HEALTH (Apr. 21, 2021). Judge Blakey further con-
cluded that the vaccines for smallpox and COVID-19 are dis-
tinguishable—the smallpox vaccine was a sterilizing vaccine,
intended to kill the virus and prevent transmission, but many
of the COVID-19 vaccines are, by design, non-sterilizing.
James Myhre and Dennis Sifris, MD, Sterilizing Immunity and
COVID-19 Vaccines, VERYWELL HEALTH (Dec. 24, 2020).
Jacobson is also legally and historically distinguishable.
The decision predates United States v. Carolene Products Co.,
304 U.S. 144 (1938), in which the Court reserved the possibility
of stricter standards of review for certain constitutional cases
implicating “prejudice against discrete and insular minori-
ties.” Id. at 152–53 & n.4. The principles underlying Jacobson
are also important to consider. As Judge Blakey noted in a
thorough opinion, in Jacobson the Court voiced concerns for
federalism, the limits of liberty, and the separation of powers.
Jacobson instructed that in emergency circumstances courts
defer to the executive and legislative branches, but they do
3 An “attack rate” is typically “calculated as the number of people who
became ill divided by the number of people at risk for the illness.” Attack
Rate, ENCYCLOPEDIA BRITANNICA (2016).
18 Nos. 21-3200, et al.
not abdicate their constitutional role. If a policy had “no real
or substantial relation” to its ends, the Court in Jacobson rea-
soned, courts had a duty to intervene. Jacobson, 197 U.S. at 31.
Recent circuit precedent supplements Jacobson. In Klaassen
v. Trustees of Indiana University, eight students brought a law-
suit against Indiana University challenging the school’s
COVID-19 vaccine policy. 7 F.4th 592, 592 (7th Cir. 2021). That
policy required all students be vaccinated against COVID-19
unless they were exempt for religious or medical reasons. Id.The students sought a preliminary injunction, claiming the
policy violated their due process rights under the Fourteenth
Amendment. Id. Citing Jacobson, this court applied the ra-
tional basis standard. Id. at 593. We noted that the university’s
vaccine policy made for an easier case than Jacobson because
the university’s policy had religious and medical exceptions,
and it required only university attendees to vaccinate, rather
than all the citizens of a state. Id. This court then denied the
request for an injunction pending appeal. Id. at 594.
The plaintiffs here cite several other decisions to argue
they have a fundamental liberty and bodily autonomy inter-
est, which require our court to review the mandates under
strict scrutiny review. See Cruzan v. Dir., Missouri Dep’t of
Health, 497 U.S. 261, 278 (1990) (stating that a “competent per-
son has a constitutionally protected liberty interest in refusing
unwanted medical treatment”); Washington v. Harper, 494 U.S.
210, 221–22, 229 (1990) (recognizing that prisoners possess “a
significant liberty interest in avoiding the unwanted admin-
istration of antipsychotic drugs under the Due Process Clause
of the Fourteenth Amendment” and stating that the “forcible
injection of medication into a nonconsenting person’s body
represents a substantial interference with that person’s
Nos. 21-3200, et al. 19
liberty” (citations omitted)); Glucksberg, 521 U.S. at 735 (hold-
ing that a state ban on assisted suicide did “not violate the
Fourteenth Amendment, either on its face or as applied to
competent, terminally ill adults who wish to hasten their
deaths by obtaining medication prescribed by their doctors”
(citation and internal quotation marks omitted)). The plain-
tiffs also rely on Roe v. Wade, 410 U.S. 113 (1973), and Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833(1992), both since overruled by Dobbs v. Jackson Women’s
Health Org., 142 S. Ct. 2228, 2242 (2022).
“Unless a governmental practice encroaches on a funda-
mental right, substantive due process requires only that the
practice be rationally related to a legitimate government in-
terest, or alternatively phrased, that the practice be neither ar-
bitrary nor irrational.” Lee v. City of Chicago, 330 F.3d 456, 467
(7th Cir. 2003) (citing Glucksberg, 521 U.S. at 728). Following
the guidance of the Supreme Court, our court has been hesi-
tant to expand the scope of fundamental rights under sub-
stantive due process. See, e.g., Campos, 932 F.3d at 975 (noting
that employment-related rights are not fundamental); Palka v.
Shelton, 623 F.3d 447, 453 (7th Cir. 2010) (stating that “an al-
leged wrongful termination of public employment is not ac-
tionable as a violation of substantive due process unless the
employee also alleges the defendants violated some other
constitutional right or that state remedies were inadequate”
(citation omitted)). Using similar reasoning, our court applied
rational basis review to the vaccine mandate claim in Klaassen.
7 F.4th at 593. E.g. Cuomo, 141 S. Ct. at 70 (Gorsuch, J., concur-
ring) (“Although Jacobson pre-dated the modern tiers of scru-
tiny, this Court essentially applied rational basis review to
Henning Jacobson’s challenge.”). We follow that path here.
20 Nos. 21-3200, et al.
Plaintiffs in each case have failed to provide facts sufficient
to show that the challenged mandates abridge a fundamental
right. Nor do they provide a textual or historical argument for
their constitutional interpretation. Plaintiffs do not cite any
controlling case law or other legal authority in support of
their position, instead relying on decisions that are either fac-
tually distinguishable or that have been overruled. Neither
this court nor the district judges deny that requiring the ad-
ministration of an unwanted vaccine involves important pri-
vacy interests. But the record developed and presented here
does not demonstrate that these interests qualify as a funda-
mental right under substantive due process.
The district judge in each of these cases followed Supreme
Court and circuit court precedent by applying the rational ba-
sis standard. Following that same authority, we decline to ap-
ply strict scrutiny and instead review for rational basis. “Un-
der rational-basis review, a statutory classification comes to
court bearing a strong presumption of validity, and the chal-
lenger must negative every conceivable basis which might
support it.” Minerva Dairy, Inc. v. Harsdorf, 905 F.3d 1047, 1053
(7th Cir. 2018) (quoting Ind. Petroleum Marketers & Convenience
Store Ass’n v. Cook, 808 F.3d 318, 322 (7th Cir. 2015)). So, “to
uphold the statute, ‘we need only find a reasonably conceiva-
ble state of facts that could provide a rational basis for the
classification.’” Id. (quoting Ind. Petroleum Marketers, 808 F.3d
at 322). Rational basis review is “a heavy legal lift for the chal-
lengers.” Ind. Petroleum Marketers, 808 F.3d at 322. As Judge
Blakey stated in Halgren, the plaintiffs’ substantive due pro-
cess claim “is two-fold: (1) the mandate is based on a miscon-
ception that vaccinated individuals are less likely to spread
the SARS-CoV-2 virus than the unvaccinated and naturally
immune; and (2) natural immunity provides incredibly
Nos. 21-3200, et al. 21
strong protection against infection from COVID-19, and it
does so on par with any vaccine protection.”
In Halgren, the parties agreed that the vaccines can miti-
gate some dangerous COVID-19 symptoms. They also agreed
that both unvaccinated and vaccinated people can spread the
virus, and they did not dispute the existence of serious vac-
cine-induced side-effects. The parties did dispute the relative
protection provided by natural immunity and COVID-19 vac-
cines. The defendants provided evidence from the Centers for
Disease Control, declarations from public health officials, and
numerous studies, all reporting that the vaccine is effective
against COVID-19. The evidence that vaccines reduce the rate
of transmission provides a reasonably conceivable set of facts
to support the mandates.
The same is true for the protections afforded by natural
immunity. The challenged mandates are susceptible to scien-
tific critique, but the plaintiffs did not provide any evidence—
studies, expert reports, or otherwise—showing that the bene-
fits of vaccination on top of natural immunity eliminate a
“conceivable basis” for the mandates under rational basis re-
view. The plaintiffs do not dispute that these governments
have an interest in preventing the spread of COVID-19, and
they relied on reasonably conceivable scientific evidence
when promulgating the contested policies. Even if the vac-
cination policies do not fully account for natural immunity or
studies with contrary results, under rational basis review a
government need only show that its rationale is supported by
a “reasonably conceivable state of facts.” Minerva Dairy, 905
F.3d at 1053. The governments here have met that low bar. As
Judge Blakey noted, the plaintiffs do not account for the fact
that vaccination combined with natural immunity could
22 Nos. 21-3200, et al.
reasonably be judged as more effective than natural immunity
alone.
On this record, the Lukaszczyk, Troogstad, and Halgren
plaintiffs have not met their burden under the rational basis
standard to show that the challenged policies violate their
substantive due process rights. They have shown the efficacy
of natural immunity as well as pointed out some uncertainties
associated with the COVID-19 vaccines. But they have not
shown the governments lack a “reasonably conceivable state
of facts” to support their policies. Id. Thus, the district judges
correctly concluded that the substantive due process claims
were not likely to succeed on the merits.
B. Procedural Due Process
Plaintiffs in each case claim the state and local COVID-19
regulations violated their procedural due process rights. See
U.S. CONST. amend. XIV, § 1. Before reviewing this claim, we
consider the doctrine of sovereign immunity.
1. The Eleventh Amendment
The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. CONST. amend.
XI. A “claim that state officials violated state law in carrying
out their official responsibilities is a claim against the State
that is protected by the Eleventh Amendment.” Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984). “A fed-
eral court’s grant of relief against state officials on the basis of
state law, whether prospective or retroactive, does not vindi-
cate the supreme authority of federal law.” Id. at 106. Rather,
Nos. 21-3200, et al. 23
“it is difficult to think of a greater intrusion on state sover-
eignty than when a federal court instructs state officials on
how to conform their conduct to state law.” Id. This type of
“result conflicts directly with the principles of federalism that
underlie the Eleventh Amendment.” Id.Even “when properly raised, sovereign immunity is not
absolute immunity.” Council 31 of the Am. Fed’n of State, Cnty.,
and Mun. Emps., AFL-CIO v. Quinn, 680 F.3d 875, 882 (7th Cir.
2012). A state may be subjected to an action in federal court in
three instances: “(1) where Congress, acting under its consti-
tutional authority conveyed by amendments passed after the
Eleventh Amendment … abrogates a state’s immunity from
suit; (2) where the state itself consents to being sued in federal
court; and (3) under the [Ex parte Young] doctrine.” Id. (cita-
tion omitted). Under the Ex parte Young doctrine, private par-
ties may “sue individual state officials for prospective relief to
enjoin ongoing violations of federal law.” Id. (quoting MCI
Telecomms. Corp. v. Ill. Bell Tel. Co., 222 F.3d 323, 337 (7th Cir.
2000)). The longstanding rationale for this doctrine is that
“[b]ecause an unconstitutional legislative enactment is ‘void,’
a state official who enforces that law ‘comes into conflict with
the superior authority of the Constitution,’ and therefore is
‘stripped of his official or representative character and is sub-
jected in his person to the consequences of his individual con-
duct.’” Id. (quoting Va. Office for Prot. & Advocacy v. Stewart,
563 U.S. 247, 254 (2011)). A court therefore “need only conduct
a straightforward inquiry into whether the complaint alleges
an ongoing violation of federal law and seeks relief properly
characterized as prospective.” Id. (quoting Ind. Prot. & Advo-
cacy Servs. v. Ind. Fam. and Soc. Servs. Admin., 603 F.3d 365, 371
(7th Cir. 2010)).
24 Nos. 21-3200, et al.
For reasons previously discussed, the procedural due pro-
cess claims against Governor Pritzker of all Halgren plaintiffs
and those Troogstad plaintiffs who were Chicago Fire Depart-
ment employees are moot. The remaining claims, made by the
Lukaszczyk plaintiffs and the rest of the Troogstad plaintiffs are
against Governor Pritzker in his official capacity and seek pro-
spective relief. To the extent these plaintiffs allege violations
of Illinois law—such as whether Governor Pritzker exceeded
his authority under the Emergency Management Agency
Act—sovereign immunity bars their claims in this court. Indi-
vidual state officials may be sued personally for federal con-
stitutional violations committed in their official capacities, but
that principle does not extend to “claim[s] that state officials
violated state law in carrying out their official responsibili-
ties.” Pennhurst, 465 U.S. at 121.
2. The Fourteenth Amendment
Review of the claim that Governor Pritzker’s 2021 Order
violated the Fourteenth Amendment by depriving the
Lukaszczyk and Troogstad plaintiffs of their protected property
interests is not barred by the Eleventh Amendment. A plain-
tiff who asserts “a procedural due process claim must have a
protected property interest in that which he claims to have
been denied without due process.” Khan v. Bland, 630 F.3d
519, 527 (7th Cir. 2010) (citation omitted). To demonstrate a
procedural due process violation of a property right, the
plaintiff must establish that there is “(1) a cognizable property
interest; (2) a deprivation of that property interest; and (3) a
denial of due process.” Id. (quoting Hudson v. City of Chicago,
374 F.3d 554, 559 (7th Cir. 2004)).
In Board of Regents of State Colleges v. Roth, the Supreme
Court explained that “[t]o have a property interest in a
Nos. 21-3200, et al. 25
benefit, a person clearly must have more than an abstract need
or desire for it,” and “more than a unilateral expectation of
it.” 408 U.S. 564, 577 (1972). Instead, the person must “have a
legitimate claim of entitlement to it.” Id. For “[i]t is a purpose
of the ancient institution of property to protect those claims
upon which people rely in their daily lives, reliance that must
not be arbitrarily undermined.” Id. The right to a hearing pro-
vides an opportunity to vindicate those claims. Id.The Lukaszczyk and Troogstad plaintiffs argue that the right
to earn a living is protected under the Fourteenth Amend-
ment. They contend that even if an employee does not have a
property interest in public employment, a termination or de-
cision not to renew a contract “cannot be premised upon the
employee’s protected activities.” But beyond these general
statements, the plaintiffs have not provided any evidence or a
legal argument as to why they have a property interest in pub-
lic employment. Conclusory statements are not enough to es-
tablish “a legitimate claim of entitlement,” so the plaintiffs’
claim against Governor Pritzker fails.
The Lukaszczyk and Troogstad plaintiffs also assert proce-
dural due process claims against local authorities. They argue
that local executives exceeded their authority by promulgat-
ing vaccination policies without legislative directives. The
Troogstad plaintiffs claim the City of Chicago violated their
procedural due process rights when Mayor Lori Lightfoot
promulgated the City Vaccination Policy. According to the
Troogstad plaintiffs, the City Vaccination Policy is legislative
in nature and requires approval from the Chicago City Coun-
cil. As to the County Health Vaccination Policy, the Lukaszczyk
plaintiffs point out that Cook County Health “answer[s] to the
[Cook] County Board.” Other than this uncontested assertion,
26 Nos. 21-3200, et al.
though, they fail to explain what procedural violation oc-
curred.
The procedural due process claims here fail because the
Lukaszczyk and Troogstad plaintiffs have not articulated what
procedural protections they should have been afforded. As
this court has stated before, “[s]tate and local governments
need not follow the pattern of separated powers in the na-
tional Constitution.” Auriemma v. Rice, 957 F.2d 397, 399 (7th
Cir. 1992) (citations omitted). For example, “[e]xecutive offi-
cials sometimes exercise legislative powers (think of the city
manager model, related to parliamentary government).” Id. A
“[p]urely executive official[] may have the power to set policy
by delegation (express or implied by custom) when the legis-
lature is silent.” Id. (citations omitted). In fact, “[e]ven execu-
tive action in the teeth of municipal law could be called pol-
icy.” Id. Without specifying the process that was due, how it
was withheld, and evidence for the alleged protected interest,
the plaintiffs’ procedural due process claims fail. See Roth, 408
U.S. at 577; Khan, 630 F.3d at 527.
* * *
The district judges correctly ruled that the procedural due
process claims of the plaintiffs were unlikely to succeed on the
merits due to the bar of sovereign immunity or because they
have failed to show how the local policies denied them proce-
dural due process.
C. Free Exercise of Religion
The Lukaszczyk and Troogstad plaintiffs also claim that the
state and local COVID-19 regulations unconstitutionally bur-
dened their right to the free exercise of religion under the First
Amendment. Many of these plaintiffs object on religious
Nos. 21-3200, et al. 27
grounds to the use of alleged aborted fetal cells in the devel-
opment of the vaccine.
The First Amendment provides that “Congress shall make
no law … prohibiting the free exercise” of religion. U.S.
CONST. amend I. To merit protection under the Constitution,
“religious beliefs need not be acceptable, logical, consistent,
or comprehensible to others.” Thomas v. Review Bd. of Ind. Emp.
Sec. Div., 450 U.S. 707, 714 (1981). According to the plaintiffs,
the COVID-19 regulations violated the exercise of their sin-
cerely held religious beliefs by forcing them to either vac-
cinate in violation of their faith or lose their jobs. We consider
these claims, with the exception of the Chicago Fire Depart-
ment employees’ claims against Governor Pritzker in
Troogstad, which are moot for the reasons discussed above.
The Lukaszczyk and Troogstad plaintiffs cite certain deci-
sions to guide our evaluation of these claims. In Fulton v. City
of Philadelphia, the Supreme Court reiterated that “laws inci-
dentally burdening religion are ordinarily not subject to strict
scrutiny under the Free Exercise Clause so long as they are
neutral and generally applicable.” 141 S. Ct. 1868, 1876 (2021)
(citing Emp. Div., Dep’t of Human Res. of Oregon v. Smith, 494
U.S. 872, 878–82 (1990)). The government “fails to act neu-
trally when it proceeds in a manner intolerant of religious be-
liefs or restricts practices because of their religious nature.” Id.(citations omitted). Further, a law is not generally applicable
if it provides “‘a mechanism for individualized exemptions’”
or “prohibits religious conduct while permitting secular con-
duct that undermines the government’s asserted interests in a
similar way.” Id. at 1877 (citations omitted) (quoting Smith,
494 U.S. at 884). So, “where the State has in place a system of
individual exemptions, it may not refuse to extend that
28 Nos. 21-3200, et al.
system to cases of religious hardship without compelling rea-
son.” Id. (quoting Smith, 494 U.S. at 884).
The Sixth Circuit reviewed a similar claim in Dahl v. Board
of Trustees of Western Michigan University, 15 F.4th 728 (6th Cir.
2021). There, a public university promulgated a policy requir-
ing “student-athletes to be vaccinated against COVID-19.” Id.
at 730. The policy permitted the school to consider “individ-
ual requests for medical and religious exemptions on a discre-
tionary basis.” Id. But, when 16 student-athletes requested
religious exemptions, the university ignored or denied their
requests and barred them from participating in team activi-
ties. Id. The student-athletes sued the university, and a district
court preliminarily enjoined the officials from enforcing the
mandate. Id. The Sixth Circuit denied the motion for a stay of
the preliminary injunction because the Free Exercise chal-
lenge would likely succeed on appeal. Id. at 736. The court
stated that “having announced a system under which
student-athletes can seek individualized exemptions, the Uni-
versity must explain why it chose not to grant any to plain-
tiffs.” Id. Because “the University’s policy is not neutral and
generally applicable,” the court “analyze[d] the policy
through the lens of what has come to be known as ‘strict scru-
tiny.’” Id. at 734 (citing Fulton, 141 S. Ct. at 1881).
In Troogstad, Judge Lee concluded that there was no need
to apply the test reiterated in Fulton because the plaintiffs had
“not stated a claim under the Free Exercise Clause on the
current record.” On the facts before him, no plaintiff that “ap-
plied for and [was] denied an exemption from the City Vac-
cination Policy … made a good faith attempt to comply with
the Policy’s exemption process.” That process requires appli-
cants to “fill out a form providing a reason for the request and
Nos. 21-3200, et al. 29
an explanation of the principle of the applicant’s religion that
conflicts with vaccination.”
Before us, the Troogstad plaintiffs concede that Judge Lee
“correctly pointed out that there was no as-applied challenge”
in the case. The plaintiffs note, though, that when the petition
was filed, the City of Chicago had “not yet ruled on requests
for religious accommodations.” Rather than wait for the
accommodation decisions, the Troogstad plaintiffs brought a
facial challenge, arguing the accommodation forms “demon-
strate that the City reserved great discretion for itself to rule
on whether the religious beliefs were legitimate, consistent,
and approved by religious leaders.” But this facial challenge
is insufficient. On paper, the City of Chicago provides reli-
gious exemptions for its vaccination policy. Judge Lee gave
the Troogstad plaintiffs an opportunity to develop the factual
record on this point, but they declined to do so. It is unlikely
that they will succeed on the merits without evidence of how
the religious exemption is applied in practice.
The Lukaszczyk plaintiffs argue that Cook County Health’s
initial decision to reject any religious accommodation request
made by someone who had previously received the flu vac-
cine violated the Free Exercise Clause. They claim this policy
was never rescinded, although they admit that the govern-
ment did an “about-face,” later deciding to grant religious
exemptions. According to the Lukaszczyk plaintiffs, this
accommodation permitted individuals to seek “non-existent
telecommuting positions” and favored individuals who re-
ceived one Pfizer or Moderna shot over those who had natural
immunity. Once again, if these assertions have merit, there is
no record evidence to support them. The plaintiffs should
have gathered facts and created a record detailing any
30 Nos. 21-3200, et al.
wrongful denials of requests for religious exemptions. In-
stead, they made a facial challenge, which ignored the text of
the policy’s religious exemption and the status of the plain-
tiffs’ exemption requests. This does not show a violation of
their right to freely exercise their religions.
For these reasons, the district judges correctly concluded
that the free exercise claims of the Lukaszczyk and Troogstad
plaintiffs were unlikely to succeed on the merits.
D. The Illinois Health Care Right of Conscience Act
Finally, the Lukaszczyk and Troogstad plaintiffs claim that
the state and local COVID-19 regulations violate their rights
under the Illinois Health Care Right of Conscience Act, 745
ILL. COMP. STAT. § 70/1 et seq. (“HCRCA”). Between these two
cases, the plaintiffs make claims against Governor Pritzker,
Cook County, the City of Chicago, and Hektoen. As discussed
above, the HCRCA claims against Governor Pritzker are ei-
ther mooted by the 2022 Order or barred by the Eleventh
Amendment. See Pennhurst, 45 U.S. at 106.
The HCRCA states in part:
It shall be unlawful for any person, public or
private institution, or public official to discrimi-
nate against any person in any manner … be-
cause of such person’s conscientious refusal to
receive, obtain, accept, perform, assist, counsel,
suggest, recommend, refer or participate in any
way in any particular form of health care ser-
vices contrary to his or her conscience.
Nos. 21-3200, et al. 31
745 ILL. COMP. STAT. § 70/5. The statute defines “[c]onscience”
as “a sincerely held set of moral convictions arising from be-
lief in and relation to God, or which, though not so derived,
arises from a place in the life of its possessor parallel to that
filled by God among adherents to religious faiths.” Id. § 70/3.
The plaintiffs claim that the local vaccine mandates on their
face violate this provision. But both of the challenged man-
dates provide individualized religious exemptions. For exam-
ple, as Judge Lee explained in Troogstad, the City of Chicago’s
religious exemption form separates out individuals with “a
sincerely held set of moral convictions arising from belief in
and relation to religious beliefs.” So, both the HCRCA and the
City’s Vaccination Policy endeavor to protect those who ob-
ject to the vaccine for moral reasons.
The same is true in Lukaszczyk. Those plaintiffs argue that
the County Health Vaccination Policy violates the HCRCA
because it “threaten[s] suspension and subsequent termina-
tion” of noncompliant employees. But on its face, the policy
permits exemptions “based upon a disability, medical condi-
tion, or sincerely held religious belief, practice, or ob-
servance.” The text of this exemption fits within the HCRCA’s
conscience protections. The County Health Vaccination Pol-
icy also states it does not permit “exemption[s] or deferral[s]
based solely upon a general philosophical or moral reluc-
tance.” Although more troubling on its face, this language
does not disqualify the County Health Vaccination Policy un-
der the HCRCA because that Policy still permits exemptions
based upon a sincerely held religious belief.
The Lukaszczyk plaintiffs also have not made an as-applied
claim or provided any evidence that the County Health Vac-
cination Policy’s religious exemption does not cover people
32 Nos. 21-3200, et al.
who are protected under the HCRCA. See Wash. State Grange
v. Wash. State Republican Party, 552 U.S. 442, 450–51 (2008)
(“[W]e must be careful not to go beyond the statute’s facial
requirements and speculate about ‘hypothetical’ or ‘imagi-
nary’ cases.” (citing United States v. Raines, 362 U.S. 17, 22
(1960)). In short, the Lukaszczyk plaintiffs do not present any
textual argument or evidence that the County Health Vac-
cination Policy violates Illinois state law.
We cannot conclude that the local vaccine mandates vio-
late the HCRCA as a facial matter. To pursue this claim, the
plaintiffs should have produced evidence of their allegations.
Without this evidence, it is unlikely that their claims against
the local governments and Hektoen will succeed on their mer-
its.
V. Conclusion
Based on the records before us, the district judges did not
abuse their discretion when they denied the plaintiffs’ mo-
tions for a preliminary injunction. Even if the plaintiffs had
established the other elements required for a preliminary in-
junction, they have not shown that their claims are likely to
succeed on the merits. We therefore AFFIRM the decisions of
the district court.