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Operation My VA: Countering Mask Mandates

14 minutes

Defense Strategy:

  1. Disability Accommodation under the ADA: We can argue that the combat veteran’s inability to wear a mask is due to a disability, which may be related to physical or psychological conditions resulting from their military service. As per the Americans with Disabilities Act (ADA), public entities are required to make reasonable accommodations for individuals with disabilities. The client should request an accommodation that allows them access to VA medical facilities without having to wear a mask, and we can argue that the denial of such accommodation constitutes discrimination under the ADA.
  2. First Amendment Right to Expressive Conduct: We can explore the argument that wearing a mask infringes upon the client’s First Amendment right to free expression. While public health concerns are important, compelled expressive conduct might be subject to constitutional scrutiny. We can argue that the mask represents a form of expression and that the client’s combat veteran status gives their objection particular weight.
    Offense Strategy:
  3. Fifth Amendment Due Process and Equal Protection: We can launch an offensive by asserting that the client’s exclusion from VA medical facilities without reasonable accommodation violates their Fifth Amendment rights to due process and equal protection. We can argue that they are being treated differently from other patients without justification, and that their combat veteran status adds a compelling interest to their claim.
  4. Ninth Amendment Right to Privacy: We can also argue that the right to medical treatment and the choice of medical treatment are fundamental rights protected by the Ninth Amendment’s recognition of unenumerated rights. The government’s denial of access to VA medical facilities based on mask-wearing can be seen as an intrusion into the client’s medical decisions and privacy.
  5. Federal Rehabilitation Act: If the VA receives federal funding, the Rehabilitation Act can come into play. Similar to the ADA, it requires federal agencies to provide reasonable accommodations for individuals with disabilities. We can assert that the client’s combat-related conditions qualify them for these accommodations.
  6. Documentation of Disability: Gather thorough medical records and expert opinions to establish that the combat veteran’s inability to wear a mask is due to a disability related to their military service. This could be a physical condition, such as respiratory issues from exposure to certain agents during combat, or psychological conditions like PTSD that can be triggered by the mask.
  7. Reasonable Accommodation Request: Draft a formal request for reasonable accommodation under the ADA. This could involve proposing alternatives to mask-wearing that still maintain health and safety protocols. For instance, the client might agree to regular testing, social distancing, or using a face shield instead of a mask.
  8. Undue Hardship Argument: Prepare to address any potential objections from the VA about granting the accommodation. Emphasize that the requested accommodation wouldn’t pose an undue hardship on the facility’s operations or the safety of other patients, staff, or visitors. Present evidence supporting the feasibility of the proposed accommodations.
    Offense Strategy: Fifth Amendment Due Process and Equal Protection
  9. Establishing Different Treatment: Gather evidence that demonstrates your client’s exclusion from VA facilities is based on their inability to wear a mask. Compare this treatment to that of other individuals who might be granted entry without wearing masks due to medical or non-medical reasons.
  10. Show Lack of Rational Basis: Argue that the VA’s policy of denying access to individuals who can’t wear masks lacks a rational basis, particularly when considering the client’s combat veteran status. The VA must demonstrate that the policy serves a legitimate government interest, and that excluding your client serves that interest in a rational manner.
  11. Highlight Combat Veteran Status: Emphasize the unique status of your client as a combat veteran. Their sacrifices and contributions to the country may be seen as warranting special consideration, especially in cases where their ability to wear a mask is hindered by conditions stemming from their military service.
  12. Expression through Symbolism: To bolster this argument, you can present cases where courts have recognized that certain conduct, including wearing clothing or symbols, constitutes protected expressive conduct. Explain how the mask can be seen as a form of expression, particularly in the context of the combat veteran’s objection.
  13. Balancing of Interests: Acknowledge the importance of public health measures while emphasizing the need to balance those measures with constitutional rights. Discuss how compelled mask-wearing might infringe upon the combat veteran’s ability to express themselves, especially if they have a deeply personal or emotional connection to their objections.
  14. Less Restrictive Alternatives: Highlight potential alternatives that could achieve the same public health goals without infringing as heavily on the client’s expressive conduct. For instance, they might agree to wear a face shield or maintain greater physical distance.
    Offense Strategy: Ninth Amendment Right to Privacy
  15. Medical Decision Autonomy: Argue that the client’s right to make medical decisions about their own body is protected by the Ninth Amendment’s recognition of unenumerated rights. Emphasize that this includes the right to choose what is placed on or near their body, especially given their unique medical history as a combat veteran.
  16. Consent and Coercion: Point out that the government’s insistence on mask-wearing could be seen as a form of coercion, infringing on the individual’s right to make informed medical decisions. Discuss how this relates to the concept of bodily autonomy and the right to privacy.
  17. Impact on Mental Health: Bring attention to the potential psychological impact of mask-wearing on individuals with conditions like PTSD, which may be exacerbated by the sensation of wearing a mask. Argue that the client’s mental well-being and autonomy are integral to their right to privacy.

    Defense Strategy: Federal Rehabilitation Act
  18. Demonstrate Eligibility: Provide comprehensive evidence of the combat veteran’s disability and its connection to their military service. This could include medical records, expert opinions, and documentation of their combat-related conditions that hinder mask-wearing.
  19. Reasonable Accommodation Proposal: Present a well-defined proposal for reasonable accommodation that would allow the combat veteran access to VA medical facilities without wearing a mask. This could involve alternatives like regular testing, social distancing, or using a face shield.
  20. Show No Undue Burden: Emphasize that providing the requested accommodation wouldn’t place an undue burden on the VA or compromise the health and safety of other patients and staff. Address any potential concerns the VA might raise regarding the feasibility and impact of the proposed accommodation.

    Offense Strategy: Federal Rehabilitation Act
  21. Establish Discrimination: Provide evidence that the combat veteran is being treated differently from other individuals due to their disability-related inability to wear a mask. Compare their treatment to that of others who are granted access without wearing masks for medical or non-medical reasons.
  22. Duty to Accommodate: Argue that under the Rehabilitation Act, the VA has a legal duty to provide reasonable accommodations to individuals with disabilities. Highlight the legislative intent to ensure equal access and prevent discrimination based on disabilities.
  23. Combat Veteran’s Unique Status: Emphasize that as a combat veteran, your client’s situation is unique and deserving of special consideration. Point out how their service to the country adds a compelling factor to their case for accommodation under the Rehabilitation Act.
    Offense Strategy: Ninth Amendment Right to Privacy
  24. Medical Decision Autonomy and Informed Consent: Build a foundation for your argument by highlighting the historical recognition of the right to make medical decisions about one’s own body. Discuss how the Ninth Amendment protects unenumerated rights, which includes the right to control one’s own health choices and medical treatments.
  25. Historical Precedents: Reference historical legal cases that have recognized the right to privacy in medical decision-making. Cases like Griswold v. Connecticut and Roe v. Wade established the constitutional basis for this right and can serve as persuasive precedents.
  26. Intrusion into Medical Autonomy: Argue that the government’s insistence on mask-wearing represents an intrusion into the client’s medical autonomy. Explain how this intrusion goes beyond the scope of the government’s role in protecting public health and enters the realm of dictating personal medical choices.
  27. Burden on Mental Health: Highlight the potential impact of mask-wearing on individuals with conditions like PTSD. Explain how the requirement to wear a mask might trigger traumatic memories or exacerbate psychological distress, infringing on their overall well-being.
  28. Balancing Privacy with Public Health: Address the argument that public health concerns justify such measures. While public health is important, emphasize the need to balance those concerns with individual rights, especially when the individual’s unique circumstances make mask-wearing particularly challenging.
  29. Less Intrusive Alternatives: Suggest that the government could achieve its public health goals through less intrusive means, such as offering mask alternatives like face shields or providing additional testing for individuals who cannot wear masks.
  30. Broader Implications: Highlight the broader societal implications of allowing the government to mandate personal medical decisions. Discuss how upholding the right to medical autonomy can safeguard individual freedoms in the face of potential overreach.
  31. Relevant legal precedents can provide valuable support for your arguments in a case involving a combat veteran’s right to access VA medical facilities without wearing a mask. Here are some relevant cases that touch on aspects of the legal issues involved:
    First Amendment Right to Expressive Conduct

Tinker v. Des Moines Independent Community School District (1969): While not directly related to masks, this case established that students’ First Amendment rights extend to symbolic speech, like wearing armbands. The principle of protecting expressive conduct could be applicable to the argument that mask-wearing infringes on your client’s ability to express themselves.

Ninth Amendment Right to Privacy and Medical Autonomy

Griswold v. Connecticut (1965): This landmark case recognized a “right to privacy” in marital relations and paved the way for the recognition of the broader right to privacy. While the context is different, the principle of protecting personal decisions and autonomy can be relevant.
Roe v. Wade (1973): This case established a woman’s right to choose to have an abortion, grounded in the right to privacy. While not directly applicable, the recognition of a privacy right in medical decisions could bolster your argument.

Federal Rehabilitation Act and Disability Accommodation

Southeastern Community College v. Davis (1979): This case clarified the scope of the Rehabilitation Act, stating that individuals with disabilities are entitled to reasonable accommodations that would allow them to participate in programs or activities.
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (2002): This case emphasized that an impairment must substantially limit a major life activity to qualify as a disability under the ADA or Rehabilitation Act. This could provide context for your argument regarding the combat veteran’s disability.


[Client’s Name], Plaintiff,
[VA Medical Facility Name], Defendant.



  1. The Plaintiff, [Client’s Name], brings this action against the Defendant, [VA Medical Facility Name], seeking injunctive relief and declaratory judgment based on violations of federal law and constitutional rights.
  2. The Plaintiff is a combat veteran who has served honorably in [Specify Military Branch] and has been granted various accolades for their service.
  3. Due to their combat-related disabilities, the Plaintiff experiences significant difficulties in wearing a mask, which trigger physical and psychological distress as a result of their service-related injuries.
  4. Despite the Plaintiff’s documented disability and reasonable requests for accommodation, the Defendant has denied access to its medical facilities solely based on the Plaintiff’s inability to wear a mask.
  5. The Plaintiff’s inability to wear a mask is due to their combat-related disabilities, qualifying them as an individual with a disability under the Americans with Disabilities Act (ADA).
  6. The Plaintiff’s request for reasonable accommodation, such as the use of alternative protective measures and reasonable distancing, is not an undue burden on the Defendant’s operations or the safety of other patients and staff.
  7. The mask-wearing requirement infringes upon the Plaintiff’s First Amendment right to express themselves through the clothing and symbols they wear.
  8. The Plaintiff’s combat veteran status adds weight to their expression, making the mask-wearing requirement especially burdensome and unconstitutional.
  9. The Plaintiff’s right to make medical decisions about their own body is protected by the Ninth Amendment’s recognition of unenumerated rights.
  10. The government’s insistence on mask-wearing infringes on the Plaintiff’s autonomy and right to make informed medical decisions, particularly considering their combat-related disabilities.
  11. Compelled mask-wearing could worsen the Plaintiff’s psychological distress related to their combat service, further infringing on their right to privacy.
  12. The Plaintiff’s combat-related disabilities make them eligible for reasonable accommodations under the Federal Rehabilitation Act.
  13. The Defendant’s denial of access to medical facilities without providing reasonable accommodations constitutes discrimination and violates the Plaintiff’s rights under the Rehabilitation Act.
  14. The Plaintiff respectfully requests that this Court:
    a) Issue a preliminary and permanent injunction preventing the Defendant from denying access to its medical facilities based on the Plaintiff’s inability to wear a mask, and requiring the Defendant to provide reasonable accommodations;
    b) Declare that the Defendant’s actions violate the Plaintiff’s rights under the ADA, First Amendment, Ninth Amendment, and Federal Rehabilitation Act;
    c) Award reasonable attorney’s fees and costs associated with this action; and
    d) Grant any further relief that the Court deems just and proper.
  15. The Plaintiff demands a trial by jury on all issues triable as of right by a jury.
    [Your Name]
    [Your Contact Information]
    [Your Attorney Bar Number]
    [Your Law Firm Name]
    Attorney for Plaintiff


I, [Client’s Full Legal Name], currently residing at [Client’s Address], being of sound mind and competent to testify, do hereby state under oath and affirm the following:

  1. Personal Information
    I am the Plaintiff in the above-captioned matter, and I am making this affidavit to share my personal experiences and perspectives related to the issues raised in the lawsuit.
  2. Military Service and Disabilities
    I am a combat veteran who has served honorably in the [Specify Military Branch] from [Year of Enlistment] to [Year of Discharge]. During my military service, I was deployed to [Specify Deployments], where I faced challenging and dangerous conditions that have had lasting impacts on my physical and psychological well-being.
    Due to my combat-related injuries, I suffer from disabilities that significantly hinder my ability to engage in certain activities. These disabilities are a direct result of my service to our country and the sacrifices I have made.
  3. Inability to Wear a Mask and Distress
    I have found it incredibly difficult to wear a mask due to my disabilities. The sensation of wearing a mask triggers physical discomfort and distress related to my combat-related injuries. The mask-wearing requirement exacerbates my conditions and induces anxiety and discomfort that I associate with my military experiences.
  4. Requests for Accommodation
    I have made multiple requests to [VA Medical Facility Name], requesting reasonable accommodations that would allow me to access medical facilities without the need to wear a mask. I have proposed alternatives such as maintaining a safe distance, using a face shield, and undergoing regular testing to ensure the safety of all parties involved.
  5. Denial of Access and Impact on Health
    Despite my documented disabilities and my reasonable requests for accommodation, I have been denied access to [VA Medical Facility Name] solely based on my inability to wear a mask. This denial of access has adversely affected my health and well-being, as I have been unable to receive the medical care and support that I desperately need.
  6. Importance of Expressive Conduct
    I believe that wearing a mask infringes upon my ability to express myself as a combat veteran. My service to our country is deeply personal, and I view the mask as an obstacle that hinders my ability to communicate my identity and experiences.
    I hereby declare that the above statements are true and accurate to the best of my knowledge and belief.
    Executed on this _ day of _, 20, at [City], [State].

[Client’s Full Legal Name] [Client’s Signature]
Sworn to and subscribed before me on this _ day of _, 20.

[Notary Public] My Commission Expires: __


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