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Column: COVID-19 Vaccine Mandates and the Constitution

By: Christopher Dunn Legal Director, Legal

Next week, the U.S. Court of Appeals for the Second Circuit will hear argument in two expedited cases challenging vaccine mandates, one imposed by New York state on health care workers and one by New York City on teachers. With the dispiriting resurgence of COVID-19 over the last several months, the federal government has moved to impose vaccine mandates broadly, and some states and localities have followed suit. Not surprisingly given the politicization of vaccine mandates, this has been met with fierce opposition by some, including lawsuits like the ones before the Court of Appeals next Thursday.

Earlier COVID-19 litigation centered on government restrictions on public gatherings. By contrast, the current challenges take aim at vaccines, with the state case attacking a mandate on the grounds it does not allow religious exemptions while permitting medical ones and the teacher case attacking a mandate even though it provides exemptions for medical or religious reasons. While the earlier public-gathering restrictions raised significant and largely unresolved constitutional claims, the mandates now before the Second Circuit do not. The Supreme Court long ago addressed these types of mandates and did so in ways that appear to foreclose the current COVID-19 challenges. And the one vaccination mandate that would present the most serious constitutional concern—forcible injection of a vaccine—is not presented in these cases, as they involve only requirements that a person be vaccinated as a condition of employment, with the employee having the ultimate decision (albeit under threat of loss of their job).

Mandatory Vaccinations

Well before the development of contemporary individual-rights constitutional jurisprudence, the Supreme Court confronted the fundamental conflict between individual liberty and bodily autonomy on the one hand and the societal need to protect against contagious disease on the other. In a sweeping decision that reads more as political philosophy than judicial analysis, the court in 1905 came down squarely on the side of societal welfare.

Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), presented a constitutional challenge to a Cambridge, Mass., regulation requiring that all inhabitants be vaccinated against smallpox, which had become “prevalent to some extent” in that city. The state law authorizing such local regulations excepted children who were “unfit subjects for vaccination” but otherwise imposed a $5 penalty (around $145 now when adjusted for inflation) on those who did not comply.

Henning Jacobson was an adult who refused to be vaccinated, leading to a criminal conviction in Massachusetts courts that ended up in the U.S. Supreme Court. As an initial matter, the Supreme Court observed that Massachusetts’ “police power” plainly embraced “such reasonable regulations established directly by legislative enactment as will protect the public health and public safety.” Turning specifically to vaccinations, however, the court confronted Mr. Jacobson’s fundamental autonomy concerns:

The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.

In response, the court launched into a broad discussion of individual liberty, social order, and anarchy:

There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.

In light of these principles, the Supreme Court unanimously upheld the regulation given that smallpox was “prevalent to some extent” and “growing” in Cambridge. As the court explained: “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

Finally, in a lengthy passage bearing directly on arguments by contemporary anti-vaccination advocates, the Supreme Court emphatically rejected the claim that concerns by small numbers of people or medical professionals about the effectiveness or safety of vaccines supported invalidating vaccination mandates. As part of this discussion, the court quoted at length a decision from the New York Court of Appeals upholding a New York requirement that all children be vaccinated as a condition of being admitted to school:

The appellant claims that vaccination does not tend to prevent smallpox, but tends to bring about other diseases, and that it does much harm, with no good. It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease, and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession … . The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.

Fifteen years after Jacobson, in its only other decision squarely deciding a constitutional challenge to a vaccination requirement, the Supreme Court upheld a San Antonio, Tex. ordinance requiring that children be vaccinated as a condition of being able to attend public or private school. In a brief opinion drawing on Jacobson and related authorities, the court held in Zucht v. King, 260 U.S. 174 (1922), that there was “no question as to the validity of the ordinance” and that “these ordinances confer not arbitrary power, but only that broad discretion required for the protection of the public health.”

Religious Exemptions

Though long-standing Supreme Court precedent permits general vaccination mandates, including school-enrollment ones, the court has never squarely held the Free Exercise Clause does not limit the government’s authority to impose such mandates in the face of bona fide religious beliefs. Nonetheless, in a 1944 case it stated in dicta that religious beliefs must yield to vaccination mandates.

At issue in Prince v. Massachusetts, 321 U.S. 158 (1944), was the constitutionality of various state child-labor laws that conflicted with the religious beliefs of the Jehovah’s Witnesses about the parenting of their children. While that dispute did not involve vaccinations, the Supreme Court specifically addressed them in the course of discussing the state’s broad authority to regulate familial relations in the face of religious objections:

But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s wellbeing, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. (emphasis added)

Accepting this dicta as controlling, lower courts have rejected claims that religious concerns shield individuals from vaccination mandates.

Forced Injections

A final important constitutional question presented by mandatory vaccinations that the Supreme Court has never addressed is the one about ultimate implementation. In Jacobson the penalty was a fine, and in Zucht it was exclusion from school. But what about the forced administration of a vaccine?

While the court has not confronted this issue, it did recently decide a constitutional dispute concerning the compelled extraction of a blood using a needle. At issue in Missouri v. McNeely, 569 U.S. 141 (2013), was a forced taking of a blood sample from an arrestee suspected (accurately so) of drunk driving. In that instance, the arresting officer had made no effort to obtain a judicial warrant to take the blood, and the state argued in the Supreme Court that drunk-driving arrests as a category presented exigent circumstances justifying warrantless and forced blood draws. In making this argument, the state relied on earlier Supreme Court cases recognizing certain highly-invasive searches as presenting exigent circumstances categorically.

In rejecting the state’s categorical argument, the court stated: “We have never retreated, however, from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.” In light of these interests, the court held that forced drunk-driving blood draws always require a judicial warrant unless the circumstances particular to the situation created exigent circumstances.

Looking Forward

The two cases being argued before the Second Circuit next week already have seen extensive activity. Facing a September 27 implementation date, a single circuit judge on September 24 enjoined both the state healthcare-worker mandate and the city teacher mandate in response to emergency motions by the plaintiffs in both cases. The next day, a three-judge panel dissolved both injunctions, denied outright the motion by the teachers, and set for emergency argument on September 29 the motion by the healthcare workers on their religious-discrimination claim. Following that argument, the panel set both cases for full merits argument for next Thursday (October 14), with extremely expedited briefing. Last Friday the teachers sought an emergency order from Supreme Court Justice Sonia Sotomayor, who rejected it.

As this rapid-fire sequence suggests, plaintiffs in both these cases are aiming to get their challenges to the Supreme Court. Unlike various COVID-19 public-gathering challenges the court took up, however, it is far less clear that the court would entertain these new challenges. If it did so and struck down either mandate, that would mark a sea change in constitutional law bearing on the government’s ability to protect the public health through vaccine mandates.

This column was originally published in the New York Law Journal

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