This article about two court decisions regarding vaccine mandates was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.
There is a lot going on on the vaccine mandates front. This post describes two recent court decisions – a panel of the Seventh Circuit refused to put Indiana’s University vaccine mandate on hold, in a decision that does not bode well for the students’ case. And a California federal district court decision dismissing a case against an alleged (you’ll see why alleged below) school educators mandate, that by implication upholds the “soft” mandate New York and California have recently adopted.
Indiana University vaccine mandates court decision
As a reminder, on June 21, 2021, a federal judge rejected a request for a preliminary injunction in a lawsuit against Indiana University’s vaccine mandate, finding the mandate to be reasonable, and hence, under the standard he used, constitutional. The plaintiffs – eight students, through their lawyer – immediately appealed asking for a stay, and after the judge rejected that request, appealed to the Seventh Circuit Court of Appeals, the appellate court above the federal district court in Indiana.
On Monday, August 2, 2021, a three-judge panel of the Seventh Circuit rejected the request to stay the decision, in a strong 4-pages decision that suggests the panel is not particularly sympathetic to the case. The decision was written by Judge Frank Easterbrook, an experienced federal judge (who served as the Circuit’s chief judge from 2006-2013).
In the decision, the judge pointed to Jacobson as the standard, citing Supreme Court precedent, arguing Jacobson means there is no fundamental right against vaccination requirements. The court said that:
to the contrary, vaccination requirements, like other public-health measures, have been common in this nation.
The court also concluded that the university’s case was stronger than Jacobson’s for two reasons:
- The university provided exemptions to people with religious objections to the mandate or medical contraindication. It pointed out that the exempt students “just need to wear masks and be tested, requirements that are not constitutionally problematic.”
- The mandate does not apply to every adult, just to people who want to attend Indiana University. “People who do not want to be vaccinated may go elsewhere.”
The decision pointed out the importance of vaccines in protecting not just the vaccinated person but also others they come in contact with, and “at a university close contact is inevitable.”
The court added:
We assume with plaintiffs that they have a right in bodily integrity. They also have a right to hold property. Yet they or their parents must surrender property to attend Indiana University. Undergraduates must part with at least $11,000 a year (in-state tuition), even though Indiana could not summarily confiscate that sum from all residents of college-age.
Other conditions of enrollment are normal and proper…. If conditions of higher education may include surrendering property 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.
This is a very strong decision in favor of the university.
12 August 2021 Update
Justice Amy Coney Barrett rejected the request of students challenging Indiana University’s Mandate to put the mandate on hold while the case is being heard. Justice Barrett gave no reasoning for the decision.
Constitutional law expert Prof. Steve Vladeck said:
An in-chambers denial without even requesting a response — let alone referring it to the full Court — is a pretty strong sign that #SCOTUS is in no hurry to block university vaccination mandates, especially those, like Indiana’s, with appropriate medical and religious exemptions.
California Educators for Medical Freedom v. Beutner
On March 17. 2021, a group called California Educators for Medical Freedom filed a lawsuit challenging an alleged mandate of the Los Angeles Unified School District. This was one of the first anti-mandate lawsuits I’ve seen, and I chose not to write on it at the time because it largely mirrored the claims in the New Mexico corrections officer lawsuit I’ve been following (which is still open).
I have kept an eye on it. There have been a few developments, like the district being allowed to drop as a defendant. But the lawsuit remained open – until July 27, 2021, when the court dismissed it.
The court dismissed it because it was not “ripe”. Ripeness is a legal doctrine designed to prevent courts from addressing an issue prematurely. In the United States, courts cannot address abstract questions (there are countries where courts can address a hypothetical question and offer advice).
Courts in the United States need to make decisions in the context of a case or controversy – a real, valid dispute between parties. There are several rational for this addressed in the legal literature, and since it’s a somewhat complex topic beyond this topic on which I am not an expert, I will just provide some links to some of it.
The point is that cases that are not ripe – that are about things that have not happened yet and may never happen – cannot usually be brought, with few exceptions.
In this case, plaintiffs provided two things that they claimed show a mandate. One, a document titled “Vaccination Guide for Employees”, showed a mandate, they said, by using the term “will” (e.g. “[y]ou will schedule your appointment…”. The second was a claim that several people in the district stated that employees will be mandatory and refusal would lead to disciplinary action or other adverse consequences.
Finally, plaintiffs provided a memo “that gave employees the option either to get vaccinated or to submit COVID-19 tests.”
The court found that was not enough. It found that the only policy actually communicated to employees required that “employees can choose to either receive the vaccine or be tested for COVID-19.” The court found that this was not enough to be an actionable mandate, an actual injury, and hence there was no real case. The court found that “LAUSD explicitly stated it is not requiring vaccines” and there is no indication the district will require vaccines, and certainly not that if it does, there will be no exemptions.
The Court, therefore, dismissed the claim.
What does this mean? Well, first, the court did not address whether a full mandate would be legal or not. The court simply found that the question was not really presented, because there was no such mandate.
However, this decision also suggests that the court does not consider vaccination or test as a mandate that interferes with rights. This is relevant, because the public employee mandates imposed by New York, California, and the federal government were all “soft” mandates – vaccinate or test mandates – and if other courts also take the view that these are not real mandates that interfere with rights, they are going to be very hard to challenge.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.
