Can we all agree that as between vaccines and [checks notes] “snort[ing] cocaine off of toilet seats”, it is the vaccines that should make us “not scared of a germ”?

Ok, maybe the [checks notes] Secretary of Health and Human Services wouldn’t agree, but c’mon—the evidence that vaccines save lives is overwhelming. 

As Perry v. Marteney, __ F.4th __, 2026 U.S. App. LEXIS 10101, 2026 WL 946152 (4th Cir. Apr. 8, 2026) recounts:

• Smallpox went from killing 10% of London’s population in the 17th century and 500 million people globally between 1880 and 1980 to completely eradicated by 1980 after a global vaccination campaign.

• Deaths caused by [other diseases] have also been significantly reduced since vaccines were first developed: diphtheria (100%); polio (100%); measles (100%); mumps (100%); rubella (100%); whooping cough (99.3%); tetanus (99.2%); chickenpox (81.9%); and hepatitis B (80.2%).

In fact, one of the amazing things about vaccines is that not only do they provide disease protection for the person vaccinated, they also can provide protection for the people around them, including the medically fragile whose conditions won’t allow them to get vaccines themselves. 

Or at least they can provide “herd immunity” if a large enough percentage of the herd is vaccinated.  Vaccine mandates work well to accomplish that goal, but they get a lot of push-back, including by those with religious objections.

Perry addressed the collision between compulsory vaccination laws and asserted religious rights.  In a divided opinion, the Fourth Circuit reversed a preliminary injunction that had allowed an unvaccinated child to remain enrolled in an online West Virginia public school based on her parents’ religious objections to vaccination.  The majority opinion reaffirms the continuing force of Jacobson v. Massachusetts, 197 U.S. 11 (1905), and falls in line with other opinions we have written about as of late. 

Like Jacobson, the Perry majority acknowledges the breadth of state police power when public health is at issue, and the limited role the First Amendment’s Free Exercise Clause plays where a neutral, generally applicable vaccination mandate is involved.  The dissent, by contrast, reads recent Supreme Court decisions as significantly expanding strict scrutiny protection for parental religious objections in the public-school setting and would have upheld the injunction.

The West Virginia law in question requires children attending “public, private or parochial” schools to be immunized against a list of serious infectious diseases, including chickenpox, hepatitis B, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus, and whooping cough.  W. Va. Code § 16‑3‑4(c).  

All 50 states have some form of compulsory vaccination requirement, but West Virginia is one of the few that provides no religious exemption.  West Virginia’s law only allows for medical exemptions, when “immunization is contraindicated or there exists a specific precaution to a particular vaccine,” as certified by a licensed physician.  W. Va. Code § 16‑3‑4(h)(1).  Even then, West Virginia doesn’t just take the doctor’s note at face value—a state Immunization Officer decides whether there is “sufficient medical evidence” to justify the medical exemption, and that decision is then subject to appeal to the State Health Officer, and judicial review under the state Administrative Procedures Act.

At the same time, West Virginia requires all children to attend school, save for those taught through approved home instruction, “learning pods” or “microschools”.  These children are not subject to the vaccination requirement because they do not attend “schools” within the meaning of the vaccination mandate.

Perry involved a child who was dis-enrolled from a state-run public virtual academy (where the online content delivered by state-certified teachers) because she was not fully vaccinated as the statute required.  After her parents failed to obtain a religious exemption from the vaccine requirement, they sued and won a preliminary injunction against enforcement of the mandate.

The Fourth Circuit then reversed.  It began by situating West Virginia’s law within a long line of cases recognizing broad state authority to enact health measures, including vaccination, starting with Jacobson which had upheld a smallpox vaccine mandate while warning against trying to uphold public health if “each [man] is a law unto himself.”

The long-standing legal test is that a neutral and generally applicable law that incidentally burdens religious practice is subject only to rational-basis review, whereas governmental burdens on religious practice that are not neutral and generally applicable are subject to strict scrutiny.  Notably, Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), used compulsory vaccination as a paradigmatic example of a neutral and generally applicable, legally-required “civic obligation” that could not be made contingent on constitutionally required religious exemption without effectively turning every believer into “a law unto himself.”

Neither side really argued that West Virginia’s vaccination statute was not neutral, as the law neither targets nor disfavors religion on its face or in its operation. 

But as to general applicability, the question was whether the allowance for medical exemptions and the statutory classifications (that it applied to school students but not adult school workers; and it applied to virtual school students but not homeschoolers) made the vaccine mandate not generally applicable. 

The court found it notable that West Virginia officials have no authority to grant ad hoc exceptions for religious or other reasons.  The only exemptions allowed are medical, and those require “sufficient medical evidence” that the immunization is contraindicated or subject to a specific precaution for a particular child.  Moreover, that limited statutory exemption was constrained by appellate review options.  The majority thus fell in line with every other circuit (the First, Second, Third, and Ninth Circuits) to have addressed vaccine mandate medical exemptions, agreeing that they do not undermine the general applicability of a vaccine law

As to the distinctions drawn between populations subject to the mandate, the Fourth Circuit concluded they also did not deprive the mandate of its general applicability.  Differential treatment between secular categories (like between virtual school students and homeschoolers) does not raise the suspicion of religious animus that distinctions between religious and secular conduct would.

With the finding that the law was neutral and generally applicable, the rational basis standard was readily met:  The state’s interest in preventing the spread and severity of serious infectious diseases among schoolchildren was legitimate if not compelling, and compulsory vaccination is crafted to address that concern.  Moreover, the criticisms hurled at the law did not make it irrational.  For example, while both virtual students and homeschoolers may pose less risk of spreading disease, virtual students can and do participate in in-person school activities and thus had a different risk profile than those homeschooled. 

In fact, the Perry majority concluded that the state’s interest was so strong, and its policy so on point, that the law would pass strict scrutiny if that were the test to be applied, as the dissent argued.   

The dissent not only wanted strict scrutiny, it argued that the case should be evaluated not through the Jacobson framework, but rather under the framework from Wisconsin v. Yoder, 406 U.S. 205 (1972) and Mahmoud v. Taylor, 606 U.S. 522 (2025).  Under Mahmoud in particular, a law that “substantially interferes with the religious development” of a child and the “critical right of parents to guide the religious development of their children” is subject to strict scrutiny “regardless of whether the law is neutral or generally applicable.”

But unlike Yoder and Mahmoud which would have required children to sit through lessons (formal or otherwise) that were in conflict with their parents’ religious beliefs, West Virginia’s vaccination law is a public health measure, not an form of ideological or value-based instruction or messaging.  The majority also found it notable that nothing in Yoder or Mahmoud purported to overrule, or even undermine, Jacobson, and the lower courts are obligated to follow those precedents unless and until the Supreme Court says otherwise.  Here’s to hoping that day never comes. 

But at least for now, in the Fourth Circuit, state vaccination mandates that (1) are facially neutral, (2) provide only medically grounded exemptions with constrained professional judgment and a review procedure, and (3) apply across the public school system will be evaluated under rational-basis review and are likely to be upheld, notwithstanding parental religious objections.