A Dangerous Legal Battle Over Vaccine Mandates Will Continue

The Supreme Court’s decision on Friday to allow Maine’s vaccine mandate for health care workers to go into effect was an important victory for efforts to control the pandemic through vaccination. But it is not a final one.

The six-justice majority did not explain its refusal to block Maine’s mandate. However, in a concurring opinion, Justice Amy Coney Barrett, who was joined by Justice Brett Kavanaugh, argued that the court should not consider the claims on an emergency basis “without benefit of full briefing and oral argument.” Three justices dissented, arguing that Maine’s failure to provide a religious exemption violated the First Amendment’s protection for the free exercise of religion. Without a decision on the merits, the litigation and controversy continues. So too does the peril for other long-accepted public health measures.

Only a year ago, the constitutionality of vaccine mandates seemed certain. They have a long history in the United States. During the Revolutionary War, George Washington required his soldiers to be inoculated against smallpox. In the 19th century, cities and states required that children be vaccinated against smallpox before attending school.

The mandates were controversial then, too. Nevertheless, courts almost always upheld them. In 1905, in Jacobson v. Massachusetts, the Supreme Court rejected a challenge from the Rev. Henning Jacobson to a Cambridge, Mass., law requiring all city residents to be vaccinated during a smallpox outbreak. The court explained: “There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.”

Less than two decades later, in the 1922 ruling Zucht v. King, the Supreme Court cited the Jacobson decision to affirm a San Antonio law requiring the vaccination of schoolchildren, even in the absence of an outbreak.

Neither decision considered the First Amendment’s guarantee for the free exercise of religion, and both were decided before the Supreme Court applied the free exercise of religion clause to the states. But even after it did, the court continued to cite Jacobsonwith approval. Then, in the 1990 decision Employment Division v. Smith, the court held that laws that apply generally and do not discriminate against religion are constitutional. This bolstered the conclusion that vaccine mandates need not include religious exemptions.

Despite that precedent, almost all states do grant religious exemptions to their school vaccination mandates. But the fact that they’re not required to do so means they can repeal those exemptions if vaccination rates fall and outbreaks occur. That is what happened in recent years, when California and New York repealed religious exemptions in response to measles outbreaks. In both cases, courts have affirmed them.

But recent Supreme Court decisions have shaken the certainty of that precedent. Since Justice Barrett joined the court, it has issued a series of decisions — all from its so-called shadow docket — blocking Covid-19 restrictions as violations of religious liberty.

In the most far-reaching Covid-19 case, Tandon v. Newsom, decided in April, the Supreme Court held that California’s limit on the number of households that could meet in a private home violated the religious liberty of a Bible study group. Although the law did not single out religious gatherings, the court found it likely to be unconstitutional because California regulated some secular activities, like shopping, less strictly.

Then, in June, in Fulton v. City of Philadelphia, the Supreme Court held that Philadelphia’s refusal to place children with a Catholic foster care agency that wouldn’t work with same-sex parents was unconstitutional. According to the court, because the city’s foster care contract said that agencies cannot reject foster or adoptive parents based on sexual orientation “unless an exception is granted,” the city allowed for exemptions and therefore had to offer the Catholic agency one for religious purposes.

By holding that laws that do not mention or target religion may still violate people’s religious rights in certain cases, the Tandon and Fulton decisions sent a message to vaccine resisters: You can challenge the constitutionality of any denial of a request for a religious exemption. In response, vaccine resisters have kept litigation flowing.

With once-settled doctrine upended, lower courts have reached different conclusions about the constitutionality of Covid-19 vaccine mandates. In the Maine case, Jane Does 1-6 v. Mills,the Court of Appeals for the First Circuit emphasized the distinctions between medical and religious exemptions and refused to block Maine’s vaccine mandate for health care workers, which did not offer religious exemptions.

In contrast, in early October, the U.S. Court of Appeals for the Sixth Circuit found that Western Michigan University’s refusal to grant religious exemptions to student athletes was most likely unconstitutional because the mandate allowed for medical exemptions. This was similar to the reasoning that Justice Neil Gorsuch used in his dissent in Mills, which Justices Clarence Thomas and Samuel Alito joined. Troublingly, Justice Gorsuch also questioned how much longer the state’s interest in controlling the pandemic should be considered compelling.

The Supreme Court’s decision in Millsshows it is in no rush to block mandates. Yet, because the majority’s views on the merits remain uncertain, lower courts are likely to continue to go in different directions. The Supreme Court may eventually decide to hear a case using its regular procedures.

If it does, its decision will have significant ramifications for vaccine mandates. Health conditions that warrant medical exemptions are relatively rare. Religious exemptions, by contrast, pose a far greater threat to vaccination efforts. Although very few religions object to the Covid-19 vaccines, policing the sincerity of someone seeking a religious exemption can be difficult and, as the Western Michigan University case shows, denying a requested exemption can now be constitutionally risky.

More worrisome, a decision by the Supreme Court that rejects its own precedent on vaccine mandates and ignores the distinctions between medical exemptions and religious exemptions will reverberate far beyond the Covid-19 pandemic. Whether or not the court intended to unsettle the constitutionality of vaccine mandates, it has done so. A ruling requiring religious exemptions for vaccine mandates will create more uncertainty and encourage people to demand a religious exemption to any health law they do not like.

The choice to invite that future belongs to the justices, but the consequences will be ours.

Wendy Parmet is a professor of law and the director of the Center for Health Policy and Law at the Northeastern University School of Law. She is also a professor of public policy and urban affairs at Northeastern University.

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