On Monday, the Court of Appeals for the 7th Circuit ruled against students who were seeking an injunction that would block the Indiana University from implementing a vaccine mandate ahead of the start of the fall semester. Both courts relied on a Supreme Court precedent from over a century ago that declared a far broader vaccine mandate to be constitutionally acceptable.

We discussed the case with Georgetown Law Professor Lawrence Gostin, who indicated that this sort of decision isn’t going to be limited to Indiana; nationally, vaccine mandates would be acceptable from a constitutional perspective. Many states, however, have passed laws that limit or outright prohibit vaccine or mask mandates. And these laws would override university policies that the federal courts have concluded are perfectly reasonable.

Not sending their best

The suit ruled upon this week was brought by eight students at Indiana University. The university had crafted a policy that mandated vaccines for all students but allowed religious and medical exceptions. Those granted exceptions would be required to wear a mask on campus and have frequent tests for the virus. Failure to comply with these policies would lead to the student having their university computer accounts (including email) suspended and campus access cards deactivated.

The students’ complaint indicated that this policy interfered with the privacy of their medical decisions and their right to due process. They asked for a preliminary injunction that would block Indiana’s policy from coming into effect, a request that requires them to demonstrate that they would likely prevail should the case go to trial.

Based on their testimony as summarized in an earlier court decision, the eight who brought the suit weren’t exactly the finest candidates for contesting a vaccination mandate. Six of them had already been granted a religious exemption, and a seventh seemingly qualified for it; they were mostly objecting to the masking and testing. Yet all of them acknowledged that they had previously worn masks when required. One “says he has a deeply held religious objection to wearing a mask and being tested,” the court summarized, before noting that “he wore a mask while attending religious services.”

Another stated she was low-risk because “pescatarians are less likely to experience serious illness.” A third “objects to the mask and testing requirements because she thinks masks are silly and she claims nasal swabs cause cancer.”

Nevertheless, the court took their claims seriously and evaluated them according to the relevant legal standards. Specifically, it considered the precedent set by Jacobson v. Massachusetts, which upheld a state’s mandatory vaccine law, passed during a smallpox outbreak in the early 1900s.

Precedent rules

While the suit seeks to have Jacobson limited to the circumstances in which it was decided, the Supreme Court has used it as precedent multiple times since, and all 50 states now have laws that require students to be vaccinated against specific diseases. As the data currently stands, the court determined, “Indiana University has a rational basis to conclude that the COVID-19 vaccine is safe and efficacious for its students.” Given that its policy has a rational basis, the Jacobson precedent applies.

Similarly, the court determined that “Indiana University has a legitimate interest in promoting the health and safety of its students. And the masks and testing are rationally related to achieving those measures.”

The decision didn’t surprise Georgetown’s Gostin. “There’s wide discretion on the part of businesses, university, [and] employers to require conditions for coming to work or coming to the classroom,” he told Ars. “Universities have been requiring vaccines for a long time. Hospitals have done it, businesses have done it, [and] the federal government has now done it for its employees.”

Both the original decision and the Appeals Court ruling noted that the Indiana University policy was substantially more flexible than the law at issue in Jacobson, which mandated vaccines for all adults. Instead, students were given choices between three options: vaccines, masking and testing, or taking a few semesters off. But Gostin said that these additional options aren’t needed for a policy to withstand constitutional scrutiny, and he pointed to a case in which a hospital mandate for vaccinations was sustained in Texas.

While a trial of the Indiana case could still reveal details of the policy that cause it to run afoul of constitutional limits, the decisions so far suggest that the case is unlikely to result in a ruling against Indiana University.

Does this help?

For those states where these sorts of policies go into effect, Gostin said that the policies are likely to drive additional vaccinations in students, who are part of an age group that trails its elders in terms of vaccination rates. “There’s really good behavioral science evidence that either soft mandates, where you give them options, or hard mandates, where you exclude them from the campus… are very effective at getting high rates of vaccinations,” he said.

But in many states, attempts to set policy like this will run afoul of legislation and/or governor-level executive orders that block mandates for vaccines, mask use, and/or other public health measures. And here, the news is less good for public health. “[The states] probably can lawfully do it, because states have quite wide discretion in regulating businesses and the private sector within their states,” Gostin said. Accordingly, it would be possible to enact a law in Indiana that would block the university from implementing its policy.

One case that might determine if Gostin is correct is currently happening in Florida, where a cruise line is suing the state because it doesn’t allow the use of vaccine passports. Since the parties are still arguing over whether Florida is the right venue for the case, it may take some time to resolve, though.

Meanwhile, there are signs that the latest surge in infections is causing some states to rethink. On Tuesday, the Republican governor of Arkansas said that he regretted passing a law that banned mask mandates and is trying to get the legislature to allow schools to require mask use. According to Gostin, that’s as it should be: “Most of these state laws are, in my view, irrational, because governors and state legislatures are supposed to act for the health and safety of the population, and these laws are doing exactly the opposite.”

https://arstechnica.com/?p=1785180