When the US Supreme Court responded for the first time to a case testing the legality of Covid-19 vaccine mandates, it didn’t go as the anti-mandate camp would have liked: On Aug. 12, justice Amy Coney Barrett decided not to block Indiana University from making vaccination a condition of attendance this fall, dashing the hopes of a group of eight students who had brought an emergency petition before the court.
But advocates for vaccine mandates—which are now becoming commonplace in workplaces, colleges, and in private businesses—shouldn’t get too excited about Barrett’s response, according to Dan Bowling, a senior lecturing fellow at Duke Law School. “I don’t think it should be read as settling the debates about current vaccine requirements across the board, public and private, in all states, by any means,” says Bowling, who is also quick to point out that he is vaccinated and believes in the vaccine’s safety.
“Everyone on both sides shouldn’t hyperventilate” about Barrett’s response, he tells Quartz.
In their arguments, the students behind Klaassen v. Trustees of Indiana University claimed they had “a constitutional right to bodily integrity, autonomy, and of medical treatment choice in the context of a vaccination mandate.” They launched their legal bid in June, a month after the college introduced its vaccine directive, which provides exemptions for religious or medical purposes.
The students’ case was brought before the US district court for northern Indiana, where judge Damon Leichty ruled against the students in July. Subsequently, the group turned to the US Court of Appeals for the Seventh Circuit, in Chicago, where judges also turned down their request. Finally, the students appealed to the Supreme Court seeking emergency action. Barrett, who is responsible for emergency petitions from Indiana, denied the petition without comment, and without bringing the issue before the full court, which typically means the case doesn’t have merit, writes the New York Times.
In some immediate news coverage, Barrett’s response was interpreted as an unexpected “killer blow”, given that Barrett was appointed by former US president Donald Trump and opposition to vaccine mandates has been strongest in Republican-dominated states. Yet Leichty also is a Trump appointee, as were two of the three appeals court judges.
To Bowling, Barrett’s denial without comment simply means the justice didn’t believe there was anything in that particular case that suggested the Supreme Court needed to get involved.
To be sure, other experts may disagree. For example, Mark Moore, an employment lawyer with Reavis Page Jump, in New York, sees more meaningful signals in Barrett’s support of Leichty’s ruling, which he described in an email as “a well reasoned, balanced, and level-headed tour de force, with judge Leichty carefully examining a broad range of medical opinion concerning Covid-19, its incidence and transmission, and the development of, risks of, and efficacy of the various vaccines.”
Although the case was specific to governmental action because Indiana University is a state school, Moore says, he believes the analyses of the university’s actions by the lower courts “will be persuasive in other settings.” And while Barrett’s response to the emergency request does not create legal precedent, he adds, “it is certainly a signal to litigants nationally.”
Leichty acknowledged that the students did have “significant liberty protected by the due process rights of the Fourteenth Amendment to the Constitution in refusing unwanted medical treatment based on ‘bodily autonomy,’” Moore says, but this “was not a ‘fundamental’ liberty such as the right to free speech.” The university only had to prove that it had taken reasonable precautions in the name of public health, which is perfectly lawful. The Supreme Court case Jacobson v Massachusetts set that precedent when it upheld the state’s right to institute smallpox vaccination mandates in 1905.
Notably, in the Chicago ruling, the appeals court judges added that Indiana University students had the option to attend other schools that had chosen not to require inoculation and that Indiana University would improve its operations by ensuring that other students on campus felt safe.
Bowling, too, believes that Barrett’s reaction is “an arrow in the quiver in favor of more vaccine mandates,” but it’s not the end of the story, he adds. This particular case may have been frivolous; others may not be seen that way.
In April, the Equal Employment Opportunity Commission issued guidance saying US companies could issue vaccination mandates, as long as the policy allowed exemptions for religious or medical reasons. Still, Bowling doesn’t believe that the legal system can easily ignore those who question the ethics of mandating vaccines that are only approved for emergency use, which is still the case for vaccines available to Americans now.
“There are reasons why there are safeguards, there are reasons why there are approvals processes,” he says. It’s worth noting, the smallpox vaccine at issue in Jacobson v Massachusetts had been in use for a century by the time Jacobson objected to it. To say that future rulings on Covid-19 vaccinations should hinge on that case definitively is, “in my opinion, an overreach,” Bowling says.
“There are lawsuits floating around all over the place against private employers,” he says. They are civil rights and civil liberties claims—not constitutional claims because those don’t apply in the private workplace—and they may not be easily dismissed, he says.
Barrett’s rejection of the injunction request could also trigger states to prohibit public universities from enacting vaccination policies. If that happened in Indiana, the federal court’s ruling would be rendered moot and Barrett’s denial of the petition wouldn’t apply, says Bowling.
Already, several states have introduced laws to limit public employers and schools from instituting mandates in some form. In Indiana, legislators have moved to block public schools from using vaccine passports, though whether that law applies to universities is in dispute.
“So,” says Bowling, “let’s kind of keep our eye on those states.”
Finally, as Moore notes, future circumstances around the pandemic might also impact future analyses of mandate laws. Judge Leichty underlined that his ruling was preliminary, says Moore, which suggests that “if the risks of Covid dissipate, then the vaccination mandates may become unreasonably burdensome.”