A federal court has effectively green-lighted Indiana University’s mandate that students be vaccinated against COVID-19 in order to attend classes in person and participate in campus life.
Judge Damon R. Leichty, a Trump appointee to the district court (in the Northern District of Indiana), denied an injunction sought by several students who object to the vaccine mandate.
In a thorough 101-page ruling dated Sunday, Judge Leichty acknowledged that the university — a public institution that receives hundreds of millions of dollars in government funding and whose board of trustees is established by state law — is a public institution. Ergo, it is legally deemed an arm of the state, whose actions must conform to constitutional limits, including those imposed by the Fourteenth Amendment.
The core questions in the case are thus whether there is a federal right to bodily integrity and medical privacy that includes refusing to submit to vaccination, and if so, what level of scrutiny must a state satisfy in order to impose a vaccination requirement despite this right.
The court concluded that there is a substantive due-process right to refuse. Nevertheless, while the right is important, it is not fundamental.
This is a crucial distinction. Fundamental rights may be infringed only if the state can satisfy “strict scrutiny” analysis — a demanding test that calls for the state to show that it has a compelling interest in regulating and that the mandate it has ordered is the least restrictive alternative capable of vindicating that interest. By contrast, rights not deemed fundamental are assessed under the much more forgiving “rational basis” review — in which the state simply has to show that it has a legitimate interest in regulating and that its mandate is rationally related to achieving that legitimate objective.
In finding that the university had a wide berth to require vaccinations, Judge Leichty relied heavily on the Supreme Court’s 1905 decision in Jacobson v. Massachusetts, which upheld a smallpox-vaccine mandate (under which those who refused to comply were fined $5 — about $140 in today’s dollars), finding that states have a critical interest in protecting the public from potentially deadly infectious diseases. While observing that Jacobson was decided before the Court developed its tiered review standards based on whether a right is considered fundamental, the judge observed that, in the ensuing decades, Jacobson has been relied on several times by higher courts, including the Supreme Court, to justify vaccine requirements and other public-health mandates.
Leichty conceded that a number of prominent jurists, including Supreme Court Justices Samuel Alito and Neil Gorsuch, have suggested that too much weight has been given to Jacobson and cautioned that it should not be considered the last word on state power to infringe on individual rights. As if to prove this very point, the Supreme Court late last year ruled, in Roman Catholic Diocese of Brooklyn v. Cuomo, that New York’s severe coronavirus restrictions on attendance at religious services violated the First Amendment’s free-exercise clause. The state had rationalized its restrictions as necessary to combat the spread of COVID-19.
Nevertheless, Judge Leichty distinguished Cuomo from Jacobson because, as the Court explained in the former, free exercise is unquestionably a fundamental right, and therefore New York had a higher burden (which it failed to meet) to justify restrictions and, importantly, to refrain from discriminating against religious institutions by imposing burdens more onerous than it imposes on commercial and other activities.
In deciding Cuomo, the Court did not overrule Jacobson. Leichty thus reasoned that the two precedents can coexist because they apply to different situations, implicating different rights. Given that Jacobson is still the law with respect to the narrow situation it addresses — namely, a vaccination requirement to halt the spread of an infectious disease (albeit one considerably more deadly than COVID-19) — Leichty, as a lower-court judge, was bound to follow it.
The court, moreover, noted that the university’s mandate prescribes exceptions based on religious objections and medical issues, as well as exempting students who attend classes remotely rather than on campus. The Indiana mandate thus defers to the religious-liberty interest that was violated in Cuomo.
The South Bend Tribune reports that the students’ attorney is preparing to appeal. It is a high bar to obtain reversal of the denial of a preliminary injunction. The students would have to show that they are ultimately likely to succeed on the merits of the question, that they will sustain irreparable harm in the absence of an injunction, and that the balance between the public interest and the harms they allege weighs in their favor. This seems unlikely.