Vaccine Mandate Survives High Court Test

          Anti-vaxxers took their best shot last week at persuading the Supreme Court to establish constitutional limits on the growing number of vaccine mandates being instituted by schools and colleges, employers, and commercial establishments. The eight Indiana University students who took their case against the school’s mandatory vaccination policy to the Supreme Court lost badly, just as they had lost in a federal court in Indiana and at the U.S. Court of Appeals for the Seventh Circuit.

            Justice Amy Comey Barrett, who is supervising justice for emergency appeals from the Seventh Circuit, rejected the students’ plea to enjoin the university’s policy without asking the school to reply and without referring the case to any of the other justices. Without a written ruling, Barrett’s action will not settle the legal issues surrounding vaccine mandates, but it gives no encouragement to any of the other legal challenges already percolating in lower court or to future cases either.

            The student plaintiffs in Klaassen v. Trustees, represented by the conservative lawyer James Bopp of campaign finance litigation fame, argued in their brief tto the Court that as adults, they have “a constitutional right to bodily integrity, autonomy, and of medical treatment choice in the context of a vaccination mandate.” The school’s policy, announced on May 21, requires faculty, staff, and students to take a COVID vaccine, unless granted a religious or medical exception. Students who refuse are subject to “virtual expulsion,” according to Bopp’s brief, including canceled class registration and restrictions from participation in any on-campus activity.

            The first-named plaintiff, Ryan Klaassen, an incoming sophomore, in fact had been granted a religious exemption from the policy, but Bopp argued in the brief that the exceptions are available only under “extremely limited” criteria, such as a documented allergy to the vaccine or medical deferrals, but not for “natural immunity” or full recovery from previous infection. Bopp claimed that IU is the only school in the state to institute a universal vaccine mandate for students and faculty and noted that the state has not adopted a vaccine or mask mandate either.

            Legally, the case against vaccine mandates requires critics to attack a century-old Supreme Court precedent Jacobson v. Massachusetts (1905), that upheld a public health measure adopted in Cambridge, Massachusetts, during a smallpox epidemic, that imposed a criminal penalty of $5 on anyone who failed to get a smallpox vaccination. Writing for the 7-2 majority, Justice John Marshall Harlan discounted Jacobson’s unsubstantiated claims about the risks of medical injury from vaccinations. He also noted court rulings from other states, including Indiana, that upheld compulsory vaccinations for public school pupils.

            Harlan noted that Cambridge’s Board of Health had adopted the regulation, under authority of a state law, when smallpox was prevalent and increasing in the city. On that basis, Harlan upheld the city’s authority to impose the requirement. “It is within the police power of a State to enact a compulsory vaccination law,” Harlan wrote, “and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health.”
            The Supreme Court itself has not reconsidered Jacobson or voiced doubts about the ruling, but critics such as South Texas University law professor Josh Blackman describe it disparagingly as though it is a relic of the constitutional dark ages. “This is a case that has not aged well,” Blackman remarked as the conservative spokesman on a National Constitution Center podcast last week [Aug. 13]. A second panelist, Wendy Mariner, a health law specialist at Boston University Law School, conceded as well during the podcast that Jacobson predated late 20^th-century decisions recognizing personal autonomy over medical decisions.

            In a co-authored journal article published in 2005, Mariner acknowledged the changed legal background for public health measures. “The states’ sovereign power to make laws of all kinds has not changed during the past century,” Mariner wrote. “What has changed is the US Supreme Court’s recognition of the importance of individual liberty and how it limits that power.”

            Despite the changed legal landscape, however, Chief Justice Roberts himself cited Jacobson favorably in his separate opinion in an early case from California, challenging restrictions on attendance at worship services. Roberts cited Jacobson as generally supporting deference to executive orders in the early stages of the pandemic based on the then limited knowledge of the disease. In a later case from New York, Justice Neil Gorsuch sharply criticized Roberts’ use of Jacobson in the California case, which he said invited lower courts “to slacken their enforcement of constitutional liberties while COVID lingers.”

In his own separate opinion in the New York case, Roberts answered Gorsuch’s critique in a testy exchange. In the California case, Roberts specified that he had written only one sentence, with excerpts from Jacobson. “Our Constitution principally entrusts ‘the safety and the health of the people’ to the politically accountable officials of the State to ‘guard and protect.’”

“It is not clear,” Roberts added, “which part of this lone quotation [Gorsuch’s opinion] finds so discomfiting.”

In the podcast, Mariner argued in effect that Jacobson remains good legal authority today for upholding public health policies such as vaccine mandates based on the prevalence of the disease in question, the transmissibility, and the severity. The coronavirus pandemic, she concluded, “meets all three” of those conditions. To get around Jacobson, Bopp asked the Supreme Court to apply the most demanding constitutional standard – strict scrutiny – to vaccine mandates and to find that the university had not produced enough evidence to justify the mandate under that standard. For now, that question is still awaiting an answer.