Law professor Richard Saver was not surprised by last week’s Supreme Court refusal to hear an appeal by a group of IU students, asking for an injunction against IU’s vaccine mandate. Justice Amy Coney Barrett issued the ruling.
It was the first time the Supreme Court addressed a university COVID-19 vaccine mandate.
He’s is professor at the University of North Carolina Chapel Hill with a secondary appointment at the school of medicine. He says the students’ case was asking for immediate relief and not much record on the matter has been built up.
"I think all eyes were watching with interest what the Supreme Court was going to do. Sometimes the Supreme Court when it's a close call prefers not to get involved when the case is somewhat premature. And that is what we have here."
He said it’s common for universities to ask students for proof of vaccination for measles and mumps.
"The one tricky thing here is that we're dealing with the new vaccine that is still in an uncertain approval status. So that's what makes this a trickier one. But the idea that universities would impose a vaccine mandate on its students is not a very controversial legal issue."
The appeals court’s denial of the injunction cited the legal precedent of Jacobson v. Massachusetts, a 1905 Supreme Court decision upholding the city of Cambridge’s ability to require smallpox vaccination during an epidemic.
“Jacobson has stood for the proposition that vaccine mandates can be constitutional, and not infringe on protected constitutional rights. So long as they are addressing a public health necessity use reasonable means are proportional to the threat, and are trying to avoid harm to the individuals targeted as much as possible.”
But Saver said the COVID-19 vaccines are approved under emergency use and don’t have the full approval status of other vaccines. That sparks some debate.
He said that, under the emergency use rule, people have to be informed of their option to refuse a vaccine, but that doesn’t mean there won’t be consequences.
“But informing them of the option to refuse is different than saying that they get to refuse and still get to have all the benefits that they would otherwise want. In other words, there still can be consequences for their refusal, including that conditioning, attendance at university.”
Saver said one point of contention is that emergency use status only applies to federal health officials if the mandate is being done through federal health action.
"But what we've seen in the Indiana University case and many other university cases is that these mandates are coming about either through private actors, like private employers or private universities, or state actors, like state governments or public universities. And it's not clear that the federal law is even meant to reach these non federal actors in terms of what they may mandate."
He said that IU’s ethical, medical, and other exemptions give it a stronger legal argument than the students who claimed infringement of their bodily autonomy and medical privacy.
