August 25, 2021
After the FDA’s recent full approval of the Pfizer-BioNTech COVID vaccine, national news reports noted how it paves the way for corporate or government vaccine mandates. Local news has focused on how full FDA approval makes moot a new state law that bans mandates of vaccines that have only emergency approval. In the meantime, federal courts are being asked (again) to determine whether vaccine mandates are constitutional.
Indiana University announced in May that it would require all students and employees to receive a COVID-19 vaccination as a condition of enrollment or employment at the university. The university did allow exemptions for religious or medical reasons. Those who are exempted will be required to wear masks and undergo periodic testing.
These and similar policies at other schools have led to legal challenges by students and employees who argue their rights are violated by the requirement to get an unwanted vaccination. The most common argument is that the mandates violate the right of bodily integrity. (Most vaccine requirements – for COVID-19 or other diseases – contain religious exemptions, so religious freedom arguments are not typically in play and are not discussed here.)
If we are trying to determine the validity of that claim, where would we look in the Constitution to determine whether there is a right to refuse vaccination?
The phrase “bodily integrity” is not contained in the text of the Constitution, so there would have to be an implied right, and the most promising candidates for that would be the Ninth and 14th Amendments.
The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This provision makes clear that just because a right is not specifically mentioned does not mean it is excluded. As a practical matter, though, Ninth Amendment claims have not fared well in court cases. Perhaps this is because the amendment does not specify how a court would determine which unwritten rights are subject to enforcement and how that would be provided.
More importantly, the 14th Amendment (or the Fifth Amendment, when a federal government action is being challenged), has also been interpreted as protecting unwritten rights, so recourse to the Ninth Amendment has typically not been strictly necessary for a successful lawsuit.
Among other things, the 14th Amendment provides that a citizen cannot be deprived of “life, liberty, or property” without “due process of law.” On its face, this could be understood as purely related to criminal law processes (i.e., someone can’t be sentenced to death, imprisoned or fined unless the proper legal formalities are observed). The Supreme Court has interpreted the term “liberty” more broadly than that, however. Liberty could include things like marriage, making decisions on behalf of children, or in this case, the right to refuse an unwanted medical procedure.
That does not end the analysis, though, because the amendment presumably allows even liberty to be taken away if “due process” is given. The Supreme Court has interpreted that phrase broadly to mean more than just following proper procedures. Basically, if a person has a liberty interest, the government can’t interfere with it unless it has an appropriate justification for doing so (with the required level of justification depending on the importance of the interest) and any interference is necessary to the justification (in other words, there’s no other way to accomplish the government’s appropriate purpose).
This is where the challenge to a vaccine mandate is likely to encounter a hurdle. Even assuming a right of bodily integrity, a court may determine that a government’s interest in protecting public health justifies the interference with that right.
The Supreme Court has dealt with vaccine mandates twice, though the cases are old and were decided before current approaches to interpreting the 14th Amendment were developed. In 1905, the Supreme Court upheld a $5 fine imposed on a man who refused a smallpox vaccine. In 1922, the court upheld a San Antonio requirement that children be vaccinated for smallpox as a condition for enrollment in school.
Unless the Supreme Court revisits the issue, these cases represent current law. So, in the Indiana University case, the U.S. Court of Appeals for the 7th Circuit upheld the university’s vaccine mandate on Aug. 2.
The court relied on Jacobson v. Massachusetts, the 1905 case. In fact, the court said the Indiana case is “easier” because the university allows for exemptions; the school is not enforcing a criminal penalty; and students could attend other schools without a mandate. The court also noted: “Health exams and vaccinations against other diseases (measles, mumps, rubella, diphtheria, tetanus, pertussis, varicella, meningitis, influenza, and more) are common requirements of higher education.”
The court concluded:
A university will have trouble operating when each student fears that everyone else may be spreading disease. Few people want to return to remote education—and we do not think that the Constitution forces the distance-learning approach on a university that believes vaccination (or masks and frequent testing of the unvaccinated) will make in-person operations safe enough.
On Aug. 12, Justice Amy Coney Barrett declined to issue an emergency order to prevent the policy from going into effect.
The effort to successfully challenge a vaccine mandate on constitutional grounds will likely be difficult. Nothing in current constitutional interpretations obviously precludes such a mandate. The experience of Indiana University suggests that courts are likely to be especially sympathetic to mandates when they include exemptions. Where those affected by the mandate are given the opportunity to show medical or other reasons why they should be exempt, other courts will presumably also find the legal resolution of a challenge easy.
The novelty of the COVID-19 virus and the vaccines developed to protect against it – following a period of uncertainty and developing (sometimes conflicting) information – suggests that governments would be wise to adopt commonsense measures to persuade and reassure those who are hesitant about the vaccines, and where possible, create an alternative. That’s good policy in every context, but particularly in the fraught environment of public health today.
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