Ted S. Warren/AP Photo
At a demonstration opposing Washington state’s mask and COVID-19 vaccine mandates, August 18, 2021, at the Capitol in Olympia, Washington
New York City Police Benevolent Association President Patrick Lynch is threatening to sue if the city requires officers to get one of the COVID-19 vaccines. “We will take legal action to defend our members’ right to make such personal medical decisions,” Lynch said on Wednesday. Mayor Bill de Blasio, and any public official in the same position, should confidently call the bluff. Recent decisions by federal judges (not to mention more than a century of settled precedent) make clear that Lynch’s legal position is extremely weak. And the legal argument has little chance of success for very good reason: Vaccine mandates have long been a common part of American society, and claims that deciding whether or not to get vaccinated is merely a “personal medical decision” are transparently nonsensical.
As the conservative media-industrial complex sows skepticism about safe and effective vaccines while encouraging their viewers to take useless (or worse) horse deworming medicine, lawsuits challenging vaccine mandates were inevitable. Indeed, eight students at Indiana University were able to get prominent conservative litigator James Bopp Jr. to take their case challenging the university’s COVID-19 vaccine mandate. The students drew a favorable panel from the Seventh Circuit Court of Appeals, as the case was assigned to the longtime conservative stalwart Frank Easterbrook and two judges nominated by Donald Trump. If any judicial audience could be expected to be sympathetic to claims that COVID-19 vaccine mandates were unconstitutional, this would be it. Which makes the panel’s unanimous and nearly contemptuous dismissal of their claims all the more striking.
As Easterbrook pointed out in his opinion for the panel, the Supreme Court held in the 1905 case Jacobson v. Massachusetts that the state can require people to take vaccines during pandemics, a holding that remains good law. Given that the 1905 Massachusetts mandate applied to all citizens, as opposed to those seeking the privilege of attending a particular public university, and that (unlike IU’s) it did not even contain an exemption for religious objectors, upholding Indiana’s more modest mandate was an easy call. Given more than a century of precedent, COVID-19 mandates are clearly constitutional.
Despite rhetoric suggesting that vaccine mandates are an unprecedented attack on medical privacy, they are actually a routine part of American life.
Of course, the Seventh Circuit is required to apply controlling Supreme Court precedents; the Court itself is allowed to revise or overrule them. So there was a chance that Bopp would have better luck one level up. But these hopes were quickly dashed. Trump nominee Amy Coney Barrett rejected the requests of the students to enjoin the mandate. And she did so without even referring the matter to the other justices or asking for IU to file a response to the suit, suggesting that she considered the challenge to be frivolous. While I would never say never when it comes to the Court, especially this Court, this is about as promising an outcome for supporters of vaccine mandates as can be expected.
The interesting question is why the challenges to vaccine mandates have failed so dismally thus far. After all, Republican judges have not been shy about second-guessing COVID responses taken by state governments. The Supreme Court has struck down COVID orders issued by the governments of New York and California on religious-freedom grounds, and Republican-controlled state courts in Michigan and Wisconsin have done even more to constrain the pandemic response of Democratic governors. Why have challenges to vaccine mandates played out differently?
One obvious reason is that, despite rhetoric suggesting that vaccine mandates are an unprecedented attack on medical privacy, they are actually a routine part of American life. I had to get a measles shot before taking my current job at a public university, and this is hardly unusual. As Easterbrook observed in his opinion, requirements to get vaccinated against diseases like “measles, mumps, rubella, diphtheria, tetanus … and more” are “common requirements of higher education.” Indiana was one of the countless universities that already required proof of these vaccinations, with narrow exceptions. Judges ruling mandatory vaccinations unconstitutional, in other words, would wreak havoc on long-standing and common practices in a way that striking down regulations unique to the COVID-19 pandemic would not. And even conservative judges are unlikely to want to risk their children getting chicken pox or whooping cough to own the libs.
The larger issue here is that vaccine requirements have long been common and legal because the argument that vaccines represent solely a “personal medical decision” is a relatively novel one that collapses upon the slightest scrutiny. To state the obvious, vaccination needs to be collective to work. No vaccine provides perfect protection; getting to herd immunity or something close to it requires vaccination to be widespread enough to prevent outbreaks. Saying that you have a “right” not to be vaccinated makes exactly as much sense as saying that you have a “right” to drive under the influence of fentanyl or to ignore traffic signals. Your decision not to get vaccinated puts others at risk, not just yourself, and ensuring mass vaccination to stop pandemics is exactly the kind of collective-action problem government exists to address.
There is one potential issue lurking in Easterbrook’s opinion. One reason he found the case so easy is that Indiana University’s policy provided an exemption to religious objectors (which the Massachusetts law upheld in Jacobson did not). It is likely that a mandate that did not have a religious exemption would run afoul of the Roberts Court’s newly expansive definition of the free exercise clause, which has been the basis for its decisions striking down state COVID restrictions. This is not necessarily a major problem; narrowly drawn religious exemptions are common and have not been used as a basis for widespread evasion. Having said that, opposition to vaccines becoming a component of Republican identity politics is also a new development, so there is the potential for requirements for religious exemptions being abused to thwart vaccination drives that is worthy of concern.
But this is no reason for governments that think public health is more important than Tucker Carlson’s demagogic talking point du jour to preemptively concede. New York City should require its police officers to get vaccinated, just like it requires of its schoolteachers. It is the right decision from a public-health perspective as well as legally sound. And people who think that their petty, nihilistic resistance to getting vaccinated trumps the interests of the community do not belong in positions of public trust anyway.
