What the Supreme Court Might Do About Vaccine Mandates

(Bloomberg Opinion) -- The first mandatory vaccination case to reach the Supreme Court comes from Indiana University, which is requiring students to get Covid shots before enrolling for the fall semester unless they have a medical or religious exemption.

The lower courts have upheld the requirement under the authority of Jacobson v. Massachusetts, a 1905 case in which the court upheld a smallpox vaccine requirement in my hometown of Cambridge, Massachusetts. It’s unlikely that the justices will issue an emergency order blocking the university’s policy from going into effect. They may not even want to hear the case, preferring to avoid the contentious national conversation about vaccines.

Yet eventually, the Supreme Court is going to have to revisit the 1905 precedent. It was written in a different era, when the court’s analysis of the constitutional law of bodily integrity was based on different norms. The right conclusion today would still be to allow the vaccination mandate — but only after a more careful weighing of the autonomy interests of people who don’t want to be vaccinated and of the nature of the government’s interest in requiring the shots.

The first thing to know about the case being brought to the Supreme Court now is that it is in the form of a request for an order blocking the policy until the case can be fully litigated. That’s different from a request to the Supreme Court to hear an appeal after a full trial and a full appellate hearing.

It would be exceptional, although not unheard of, for the justices to grant an emergency stay under circumstances like these. Doing so would require five votes, whereas agreeing to hear a case requires only four votes. If five justices voted to oppose the stay, that would be a strong signal that those five were prepared ultimately to vote to strike down an order blocking the policy.

The second thing to know is that the federal appeals court opinion in the current case was written by Judge Frank Easterbrook, who was nominated by President Ronald Reagan in 1984 and was a professor at the University of Chicago before going on the court. The highly respected Easterbrook is a judicial conservative, albeit from an earlier intellectual generation than the justices who make up the court’s current conservative majority.

With respect to the 1905 case, Easterbrook simply said that it was his job as a federal appeals court judge to follow precedent until the Supreme Court changed it. But he went further, pointing out that this case was easier than Jacobson v. Massachusetts both because the Indiana mandate afforded medical and religious exemptions (the Cambridge smallpox ordinance didn’t) and because Indiana was requiring shots as a condition of enrollment rather than demanding that the general population get vaccinated.

The exemptions point matters. The series of cases in which the Supreme Court has overruled state limitations on public gatherings during the pandemic have all related to the religious rights of people who wanted to gather together to worship. By granting a religious exemption, Indiana University wisely addressed that concern. The exemptions will afford comfort to at least some of the conservative Supreme Court justices who might otherwise be skeptical of vaccine requirement.

As for the distinction between mandatory vaccination and vaccination as a condition of enrollment, it reflects Easterbrook’s commitment to the old-fashioned conservative idea that the government may set conditions for the enjoyment of benefits — a view often expressed by the late Chief Justice William Rehnquist. As Easterbrook noted, Indiana already sets conditions for enrollment, such as the requirement that you pay tuition to attend.

Conservative views on such conditions have changed, however. From the 1960s to the 1990s, it was liberals who mostly argued that the government could not require you to relinquish your constitutional rights as a condition of receiving a government benefit. Now conservatives have embraced that perspective, particularly in religious liberty cases. So the conservative justices might not be very impressed by Easterbrook’s argument that students who don’t want to get the vaccine can go to another university that doesn’t require it.

All that brings us to the third thing to know about the constitutional law of vaccines: the Jacobson precedent, which I’ve mentioned before. The 1905 decision rested on the logic that everyone in society must obey laws that are aimed at the “common good.” Rights, the court said, must be subject to reasonable conditions aimed at public health or public safety.

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.

So if and when the Supreme Court revisits the Jacobson precedent in the Covid-19 context, it should reach the same outcome as it did in 1905 regarding smallpox. But the new framework will also be extremely important, because it will help protect individual liberties in other, future situations in which the government’s interest in taking emergency action is less pressing.

Liberals as well as conservatives should welcome such a revisiting of the 1905 precedent — not to rule against vaccines but to protect the structure of our liberties and respect the evolving nature of constitutional law.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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