Vaccine Mandates Part II

Legal challenges to vaccine mandates continue. One of the most recent challenges already addressed by the Court is Klassen v. Trustees of Indiana University [No. 21-2326, 2021 WL 3281209 (7th Cir. Aug. 2, 2021)]. In this case, the Court rejected students’ request for an injunction to block vaccine mandates based on violations of the right to substantive due process under the Fourteenth Amendment of the U.S. Constitution.

In the Court’s decision to refuse to grant an injunction, the Court rejected students’ claims that they have a fundamental right to refuse vaccinations. The Court said that this case is easier to decide than the Jacobson case that we wrote about last week [Jacobson v. Massachusetts, 197 U.S. 11 (1905)] in which the Court decided in favor of mandatory vaccinations against smallpox.

First, the Court pointed out that there are a number of exceptions to the University’s policy based on, for example, sincerely held religious beliefs, medical conditions, medical deferrals and online enrollment. Most of the students who filed the lawsuit qualified for an exception.

In addition, Indiana does not require all adults to be vaccinated. Rather, according to the Court, “Vaccination is instead a condition of attending Indiana University. People who do not want to be vaccinated may go elsewhere.”

The Court also affirmed public policy as a basis for mandatory vaccination: “Vaccination protects not only the vaccinated persons but also those who come into contact with them, and at a university close contact is inevitable.” In other words, the Court recognized that unvaccinated students may impact others through spread of the virus, and through imposition of remote learning and other measures that would not be necessary otherwise.

The Court said:

Other conditions of enrollment are normal and proper. The First Amendment means that a state cannot tell anyone what to read or write, but a state university may demand that students read things they prefer not to read and write things they prefer not to write. A student must read what a professor assigns, even if the student deems the books heretical, and must write exams or essays required. A student told to analyze the role of nihilism in Dostoevsky’s The Possessed but who submits an essay about Iago’s motivation in Othello will flunk. If conditions of higher education may include surrendering property [i.e., tuition] and following instructions about what to read and write, it is hard to see a greater problem with medical conditions that help all students remain safe when learning.

In short, said the Court, the U.S. Constitution does not prohibit conditioning an education on compliance with mandates that are reasonably related to protecting public health.

The Court also rejected students’ objections to mask mandates and periodic testing.

The students request to the U.S. Supreme Court for an emergency injunction was denied.

Like the students in this case, healthcare staff members who do not want to be vaccinated can go to work for providers who do not have vaccine mandates. However, as an increasing number of providers adopt vaccine mandates, the ability of staff members to work elsewhere will diminish. An increasing number of patients may also insist that staff members who care for them must be vaccinated.

The Courts continue to insist that the common good must prevail.

Elizabeth E. Hogue, Esq.

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