The last time we wrote about vaccines, we received a lot of emails.  Vaccines are a hot-button issue for some, although we firmly believe they should not be.  Vaccines have prevented disease in millions and millions of people and are among the most important public health developments of all time.

When we wrote that post in 2019, we had no idea that vaccines would come to dominate global headlines, prompted by the COVID-19 pandemic.  Let’s be clear:  We think everyone who is able should be vaccinated.  If you have genuine questions, talk to a medical professional, not a TV personality or politician (from any party).  And by all means, do not at this point say you have a Constitutional right to refuse vaccination.  Because you don’t.  And that has been established for more than 100 years.

That is what a group of students at Indiana University learned when they recently moved for a preliminary injunction against a state university’s mandatory vaccine policy, and lost.  The case is Klaassen v. Trustee of Indiana University, No. 1:21-cv-238, 2021 U.S. Dist. LEXIS 133300 (N.D. Ind. July 18, 2021), and the 42-page order is among the most thorough and thoughtful orders on which we have written.

The University’s policy was not an impulsive decision.  The University convened a committee spearheaded in part by the Dean of the Medical School and populated by experts in medicine, public health, risk mitigation, law, and ethics.  Id. at *13-*14.  That process resulted in a policy requiring all students, faculty, and staff to be vaccinated before returning to campus.  Id. at *15.  The consequences are real—those who do not comply are essentially banned from campus.  But there are also multiple exemptions granted on a no-questions-asked basis, including religious exemptions, medical exemptions, medical deferrals, and exemptions for online enrollees.  Id. at *16.  The committee was also not writing on a clean slate.  Indiana has required that all public university students be vaccinated for multiple diseases since 1993.  Id. at *10.

What could be wrong with this?  Well, the students argued that the mandatory policy violated their right to substantive due process under the Fourteenth Amendment, which says that no state can “deprive any person of life, liberty, and property, without due process of law.”  Id. at *39.  “Substantive due process” means that the Fourteenth Amendment furnishes “an additional guaranty against any encroachment by the States upon the fundamental rights [that] belong to every citizen.”  Id. (quoting United States v. Cruikshank, 92 U.S. 542, 554 (1875)).  In other words, substantive due process is a “substantive limitation on the power of government to legislate.”  Id. at *40.

The standard of review is critical in substantive due process cases, and this case was no exception.  The students argued that they had a “fundamental right” to refuse vaccination, which triggered strict scrutiny.  Strict scrutiny is the highest level of constitutional scrutiny, under which the government’s infringement must be “narrowly tailored to serve a compelling state interest.  Id. at *41-*42.  In practice, a governmental body almost always loses under a “strict scrutiny” test.

The University, however, argued that neither the right to refuse vaccinations nor the right to a college education were fundamental.  As a result, any infringement on those rights should be judged under rational basis review, under which legislation is “presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.”  Id. at *42.  In practice, a governmental body almost always wins under when “rational basis” is the test.

The district court applied rational basis review, relying on the Supreme Court’s opinion upholding a smallpox vaccine mandate more than 100 years ago in Jacobson v. Massachusetts, 197 U.S. 11 (1905).  Although Jacobson, did not use the words “rational basis review,” the district court found that the Supreme Court applied rational basis review in all but name:

Though Jacobson was decided before tiers of scrutiny, it effectively endorsed . . . rational basis review of a government’s mandate during a health crisis.  . . . [¶]  This view remains consistent with the right at stake in Jacobsonthough a true “liberty” proved at stake—the right to refuse a vaccine during a smallpox epidemic—this interest in bodily autonomy, though protected by the Constitution, wasn’t fundamental under the Constitution to require greater scrutiny than rational basis review.

Id. at *54-*55 (emphasis added).  The district court also harmonized this holding with the Supreme Court’s more recent holding in Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63 (2020), where the Supreme Court applied strict scrutiny to enjoin New York from imposing COVID-19 restrictions on religious services.  Id. at *51-*55.  In Cuomo, the right at stake—the right to religious worship—was a fundamental right.  Different ballgame.

Applying rational basis review, the district court upheld the University’s mandatory vaccine policy.  It came down to a balance of the students’ liberty against the relevant state interests, i.e., protecting public health:

“Stemming the spread of COVID-19 is unquestionably a compelling interest.”  Cuomo, 141 S. Ct. at 67 (majority opinion).  . . .  Recognizing today’s status of this pandemic, neither health professionals, government representatives, nor this court may say public health vis-à-vis COVID-19 has waned from being a legitimate state interest.  Improved it undoubtedly has—today seems a world altogether different from last year—but public health remains a legitimate interest of the state to pursue.

Id. at *68.  The students argued that their liberty interest weighed favorably against this government interest because “the pandemic is basically over.”  Id.  But the court quickly rejected that argument:  “Vastly improved, yes; out of the woods we aren’t, not on this record.”  Id. at 69.  The court was right, and how, as recent developments have only underscored.

The court also reminded the parties why the COVID-19 situation has improved—because of vaccines!  And it emphasized that the situation remains fluid, with virus variants being moving targets.  Id. at *70-*72.  The balance satisfied rationale basis review—the University has a rational basis to conclude that the COVID-19 vaccines are safe and efficacious, and its policy reasonably relies on the vaccine to prevent disease and “return to normal school functioning.”  Id. at *100.  As the court observed,

[W]hen reasonable minds can differ as to the best course of action—for instance, addressing symptomatic versus asymptomatic virus spread or any number of issues here—the court doesn’t interfere so long as the university’s process is rational in trying to achieve public health. . . . There is a rational basis for making distinctions here.

Id. at *103-*104.  Finally, the students who received vaccine exemptions—six of the eight plaintiffs—challenged the accompanying requirements that they wear masks and submit test result.  The court found no Constitutional deprivation there, either.  Neither implicates a fundamental right, and the requirements are rationally related to promoting health and safety.  Id. at *107-111.  Both vaccinated and unvaccinated people can still get the virus, and students have lived with mask mandates for more than a year.  There was nothing unreasonable about it.  Id. at *111-*113.

In the end, the unvaccinated students thought it was all about them, but they could not be more wrong.  “[T]he evidence reasonably shows that [unvaccinated people] aren’t the only ones harmed by refusing to get vaccinated: refusing while also not complying with heightened safety precautions could ‘sicken and even kill many others who did not consent to that tradeoff.’”  Id. at *116-*117 (emphasis added).

And that really is the point.  The recalcitrance of the few unavoidably impacts the many, if not through infection and death, then at least through the imposition of social distancing, masking (mandatory or otherwise), and other common-sense measures that the many would rather not endure.  These students correctly lost, although we suspect others will try.  Unfortunately.