The Constitutionality of Vaccine Mandates
https://www.lawfareblog.com/Designed-Public-Vaccination-Mandates
In Jacobson v. Massachusetts https://www.law.cornell.edu/supremecourt/text/197/11 (1905), the Supreme Court upheld mandatory vaccination for smallpox. The Plaintiff Jacobson was a local clergyman who did not believe in vaccines. Massachusetts and the City of Cambridge imposed a fine of $5 on residents who refused to be vaccinated. The Court upheld the mandatory vaccine requirement as a legitimate exercise of the police powers of the state and found no violation of the 14th Amendment of the US Constitution. It did state in dicta that there was a medical exemption for individuals who faced threats of death or serious medical illness from the vaccination – “that vaccination, by reason of his then condition, would seriously impair his health, or probably cause his death” – not the condition of the local clergyman plaintiff.
In their article, Professors Vladeck and Wiley seem to believe that a religious exemption might be necessary to pass muster in today’s Supreme Court. They suggest that the recent holdings in Roman Catholic Diocese v. Cuomo and in Tandon v. Newsom may require an exemption for individuals with strong and sincere religious beliefs against any and all forms of vaccination.
The differences between smallpox vaccinations and Covid vaccinations are that the former had been in place for nearly 100 years before the challenge in Jacobson while the Covid vaccinations have been FDA approved for emergency use authorization for only about nine months. Our medical and scientific systems are now light years more advanced than they were 115 years ago, our politics maybe not so much.
Professor Noah Feldman suggests that if the Supreme Court reviews Judge Easterbrook’s decision in the Indiana University litigation conditioning college enrollment upon vaccination, it is likely to reach the same result as Justice Harlan did in 1905 but with updated reasoning. “Today, the Supreme Court evaluates restrictions on individual liberty — including laws that affect bodily integrity — in a framework that asks how important the government’s interest is and how well-tailored the law is to meet that interest. Under this kind of framework, preventing the spread of SARS Cov-2 must surely be a compelling government interest — the highest-ranking sort of interest in the judicial hierarchy. Requiring vaccines for students attending college is surely a mechanism narrowly tailored to protecting the university community against dangerous outbreaks of the disease.” https://tylerpaper.com/ap/commentary/noah-feldman-what-the-supreme-court-might-do-about-vaccine-mandates/article_01a18c86-1f10-52bc-b4ff-cd818dec9e09.html In the Supreme Court earlier today, Justice Amy Coney Barrett rejected the Plaintiff’s appeal of the 7th Circuit decision.
Prepared by: Lucien Wulsin
Dated: 8/12/21