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To what extent do individual rights limit government authority to mandate vaccination? Pre-pandemic precedents provide important—but incomplete—guidance to courts as they grapple with challenges to a rapidly rising wave of coronavirus vaccination mandates. The lower courts have consistently upheld vaccination mandates as a condition of school attendance and employment in certain sectors, but pre-coronavirus decisions relied heavily on Jacobson v. Massachusetts (1905) and Employment Division v. Smith (1990), precedents that the new Supreme Court majority evidently disfavors and may be primed to limit—or even overturn. Moreover, some coronavirus vaccination laws differ in significant ways from the typical vaccination requirements previously upheld by courts. As we explain below, carefully crafted coronavirus vaccination laws, with appropriate exemptions and penalties, are likely to survive constitutional challenges, but government lawyers and lower court judges would be wise to develop their reasoning in support of mandatory vaccination more fully, rather than relying on throwaway citations to Jacobson or Smith.
Vaccination Mandates Prior to the Pandemic
For decades before the coronavirus pandemic, vaccination requirements applied mostly to children, as a condition of school or day care attendance. School vaccination laws require vaccinations for measles and other illnesses to maintain community (or “herd”) immunity. Adult vaccination requirements, though often imposed in earlier historical periods, have been far less common since vaccination campaigns eradicated smallpox in the mid-20th century. Some states have mandated certain vaccinations (e.g., meningococcal and influenza) for university students and health care workers, though the provisions for health workers have typically made it quite easy for objectors to decline. In addition, federal law imposes vaccination requirements for immigrants and military service members. Some private employers in certain sectors (especially health and child care) and many colleges and universities have gone beyond what’s legally required to impose additional vaccination requirements for employees and students.
Opponents of mandatory vaccination have challenged pre-pandemic vaccination laws on constitutional and other grounds. State courts and lower federal courts have consistently sided with the government, typically by relying on Jacobson and (in cases where plaintiffs assert a constitutional right to religious exemptions) Smith. So far, the Supreme Court has declined to interfere with lower court rulings upholding vaccination mandates, leaving Jacobson—decided in 1905—as the most recent precedent upholding a vaccination requirement for all residents of a defined geographic area and the court’s brief opinion in Zucht v. King (1922) as the most recent precedent upholding school vaccination requirements.
Mandatory Vaccination and Substantive Due Process in Jacobson
When the Supreme Court decided Jacobson in 1905, many state and local governments mandated smallpox vaccination for all residents in areas affected by an outbreak, including revaccination of those who had previously been vaccinated, in case immunity had waned. Jacobson upheld a Massachusetts statute authorizing local health boards to make smallpox vaccination mandatory for all residents if, in the opinion of the medical experts on the board, it was necessary to protect the public’s health. The statute imposed a penalty of $5 for anyone over age 21 who failed to comply with a vaccination order, a fine that Justice Neil Gorsuch recently described as “about $140 today.” In 1902, amid a worsening outbreak, the city of Cambridge Board of Health ordered residents to be vaccinated. Henning Jacobson, the pastor of a local church, refused. In a criminal proceeding the city initiated to collect the fine, Jacobson claimed the statute violated the preamble of the Constitution and the Privileges and Immunities and Due Process Clauses of the Fourteenth Amendment. He argued that the vaccination law was “unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.”
For the purposes of its review, the court read a medical exception into the challenged statute: “Until otherwise informed by the highest court of Massachusetts, we are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination, or that vaccination, by reason of his then condition, would seriously impair his health, or probably cause his death.” The court determined that Jacobson’s “offers of proof” (excluded by the trial court as immaterial) did not amount to a claimed medical exemption but, rather, “set forth the theory of those who had no faith in vaccination as a means of preventing the spread of smallpox, or who thought that vaccination, without benefiting the public, put in peril the health of the person vaccinated.”
With that understanding, the court upheld Massachusetts’s compulsory vaccination law. In his opinion for the majority, Justice John Marshall Harlan recognized that the Fourteenth Amendment does impose some limits on the police power of the states, reasoning that the “power of a local community to protect itself against an epidemic ... might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.” But, Harlan concluded, judges should overturn an exercise of the state’s police power only in cases where “a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” (We’ve written at greater length about Jacobson and judicial review of coronavirus restrictions.)
Religious Exemptions and Smith
To date, the Supreme Court has never directly addressed whether a person has a constitutional right to refuse vaccination on religious grounds. Indeed, Smith wasn’t a case about vaccination at all but, rather, about whether a state could enforce its drug laws against individuals who consumed peyote as part of a religious ritual. But the case has played an important role in rebuffing religious liberty challenges to vaccination laws since 1990. The court’s holding that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice” means that vaccination mandates, at least for constitutional purposes, should be subject only to rational basis review—the lowest level of judicial scrutiny, which requires merely that the government show that there could have been a rational reason for its action. Although the the federal Religious Freedom Restoration Act of 1993 (RFRA) holds laws burdening religious exercise to a higher statutory standard, the Supreme Court held in 1997 that it cannot constitutionally be applied to state or local governments (some states have adopted their own versions of RFRA, but those could hardly create federal constitutional objections to vaccination mandates).
Drawing on dicta from the Smith decision, some courts have recognized a “hybrid rights” exception to Smith, whereby state laws challenged on the basis of religious freedom in combination with other rights, such as freedom of speech or the right to education, may be subject to heightened scrutiny. The religion/education hybrid rights theory has been heavily litigated with regard to homeschooling laws; it has also been raised by anti-vaccination advocates (unsuccessfully, so far). And although there has been significant clamor among conservatives to overrule Smith (including three justices expressly endorsing such a move in June’s decision in Fulton v. City of Philadelphia), it remains good law.
Recent Lower Court Precedents Upholding Pre-Pandemic Vaccination Requirements
Prior to the coronavirus pandemic, state supreme courts and lower federal courts repeatedly affirmed the constitutionality of mandatory vaccination. They rejected anti-vaccination advocates’ attempts to overturn Jacobson or limit its holdings to situations where an outbreak was active or to diseases that present a clear and present danger. Relying on Prince and Smith, the courts supported state authority to decide whether, and under what conditions, to offer religious exemptions.
Many pre-pandemic vaccination mandate cases involve school requirements. In 2015, for example, in Phillips v. City of New York, the U.S. Court of Appeals for the Second Circuit rejected substantive due process, free exercise, and equal protection challenges to New York’s school vaccination law. One plaintiff challenged the school district’s procedures for assessing whether sincere religious beliefs (rather than personal views about the health risks of vaccination) were the basis for her objection. Other plaintiffs challenged the exclusion of their children from school during a chickenpox outbreak because they had received religious exemptions. The Second Circuit affirmed the district court’s dismissal of all claims. And in an unpublished 2011 opinion, the U.S Court of Appeals for the Fourth Circuit upheld West Virginia’s school vaccination law—which has never allowed for nonmedical exemptions of any kind.
Courts have also upheld other types of pre-pandemic vaccination mandates. Most recently, in 2021, in M.A. v. Rockland County Department of Health, the U.S. District Court for the Southern District of New York upheld a local health officer’s March 2019 emergency declaration prohibiting parents and guardians from allowing minors between six months and 18 years old who had not been vaccinated for measles “to enter any place of public assembly in Rockland County.” The declaration defined “place of public assembly” to be “a place where more than 10 persons are intended to congregate for purposes such as civic, governmental, social, or religious functions, or for recreation or shopping, or for food or drink consumption, or awaiting transportation, or for daycare or educational purposes, or for medical treatment.” The only exceptions were for those who were unvaccinated due to serological immunity or a medical exemption. The court rejected arguments under the Fourteenth and First Amendments. Because M.A. directly distinguished the coronavirus mitigation orders the Supreme Court enjoined in 2020, we’ll address its reasoning in detail below.
Coronavirus Vaccination Mandates
Public officials concerned about low vaccination rates for the coronavirus are adopting a wide range of measures, including outreach, incentives, and mandates. Institutions and businesses have also voluntarily adopted mandates. Because constitutional constraints limit only state action, we’ll focus on public university and government employee mandates and on laws obligating private organizations to require vaccination.
Universities and colleges—including some public institutions—were among the first to announce vaccination requirements. Most of them already required other vaccinations for entering students. In many states, vaccines against meningitis (and sometimes other diseases) are required by law for college and university students, given the increased risk of transmission on college campuses.
Coronavirus vaccination mandates for public employees and private employees in certain sectors are rapidly gaining political support. Some jurisdictions have imposed requirements on health care workers—including workers in public and private institutions—building on pre-pandemic requirements for other illnesses. Some have expanded their mandates to include additional workers who interact with vulnerable populations (e.g., first responders) and those who work in other kinds of large congregate settings (e.g., educational institutions, shelters, prisons, jails and detention centers). A growing list of jurisdictions—including the federal government—have announced that all public employees, even those who do not work in congregate settings, must be vaccinated.
A few jurisdictions have indicated they may require private organizations to require proof of vaccination as a condition of entering certain premises or obtaining certain services. New York City mayor Bill de Blasio has announced that indoor gathering places (e.g., bars, indoor dining, gyms and theaters) will be required to deny entry to patrons unless they prove they’ve received at least one dose of vaccine.
As of yet, no U.S. jurisdiction has announced a universal vaccination mandate that applies to all residents who are eligible for coronavirus vaccination. Such a mandate could amount to a requirement to show proof of vaccination, obtain an exemption, or pay a penalty (which could be a criminal fine, as in Jacobson, or a civil fine or tax penalty like the one initially imposed on individuals who failed to obtain minimum essential health coverage under the Affordable Care Act).
Vaccination mandates vary considerably on multiple axes. In addition to targeting different populations, they differ in terms of the degree of verification required (e.g., click a box, sign an attestation, show a record or cross-reference records with health department databases). Mandates also vary in terms of the exemptions offered, the process for seeking an exemption, the consequences for failing to provide proof of vaccination or obtain an exemption, and the alternative public health measures (e.g., masks or frequent testing) imposed on those who remain unvaccinated. Employer and university mandates appear to uniformly offer both medical and religious exemptions. Some also offer more general “conscience” or “ethical” exemptions. Some are far softer and really amount to a choice to show proof of vaccination or be required to mask and provide proof of negative test results on a frequent basis, without any need to obtain a formal exemption.
Even as a growing number of jurisdictions mandate vaccination under certain conditions, others have taken the opposite approach. Several (such as Texas) have prevented local authorities—and public schools and other institutions receiving state funds—from requiring vaccination. Some, such as Florida, have gone so far as to prohibit private entities from requiring proof of vaccination.
Coronavirus Vaccination Mandates Are Likely to Survive Constitutional Challenges
As more jurisdictions impose vaccination mandates in various forms (and as other jurisdictions prohibit private organizations from doing so), more individuals, businesses, private schools, and religious organizations are likely to join the ranks of plaintiffs challenging coronavirus vaccination laws. No doubt, these plaintiffs will rely heavily on a series of “shadow docket” orders from the court’s most recent term in which the justices used applications for emergency relief pending appeal to block coronavirus-related limits on houses of worship and religious gatherings and appeared to signal a broader retreat from both Jacobson and Smith. But, in our view, under a fair reading these orders do not actually imperil properly calibrated vaccination mandates.
Recent Supreme Court Rulings and the Future of Jacobson and Smith
For instance, in Roman Catholic Diocese of Brooklyn v. Cuomo, a 5-4 majority of the Supreme Court blocked New York’s evolving restrictions on religious gatherings on the ground that the restrictions violated the Free Exercise Clause of the First Amendment. The unsigned majority opinion was sharply critical of an earlier concurrence by Chief Justice John Roberts that had read Jacobson broadly to support deference to public health measures, but Justice Gorsuch’s concurrence went out of its way to reaffirm Jacobson as applied to vaccine mandates: “In Jacobson, individuals could accept the vaccine, pay the fine, or identify a basis for exemption. The imposition on Mr. Jacobson’s claimed right to bodily integrity, thus, was avoidable and relatively modest. It easily survived rational basis review, and might even have survived strict scrutiny, given the opt-outs available to certain objectors.” In other words, to whatever extent states had gone too far in their restrictions on religious gatherings (and lower courts had gone too far in upholding those restrictions under Jacobson), Jacobson’s specific approval of compulsory vaccination laws remained beyond dispute.
Similarly, consider the court’s April 2021 shadow docket ruling in Tandon v. Newsom, blocking on religious liberty grounds California’s restrictions on in-home gatherings. In Tandon, the Court, with the same 5-4 majority as in Roman Catholic Diocese, adopted for the first time what some have dubbed the “most-favored nation” theory of the Free Exercise Clause—under which a law of general applicability is nevertheless constitutionally suspect if it makes an exception for some secular activities, but not for comparable religious activities.
Tandon unquestionably takes a healthy bite out of Smith (perhaps a bigger bite than Fulton, whose petitioners had specifically sought Smith’s overruling). But as applied to vaccination mandates, that bite would, at most, imperil mandates that lack religious exemptions. So long as a jurisdiction exempts from a coronavirus vaccination requirement those whose sincere religious beliefs are incompatible with vaccination, or so long as it exempts no one, it should pass muster under Tandon. Excluding the possibility of a medical exemption would probably violate Jacobson, however, so when the two cases are considered in combination, religious exemptions may well be constitutionally required under a future Supreme Court ruling.
The Indiana University Test Case
The first major court decision on a public entity’s coronavirus vaccination requirement—and, so, the first to raise constitutional federal constitutional as opposed to statutory objections—is Klaassen v. Trustees of Indiana University, in which eight students challenged Indiana University’s coronavirus vaccination requirement for all students who are not exempt for religious and medical reasons. After the district court refused to issue a preliminary injunction, the plaintiffs sought an injunction pending appeal from the U.S. Court of Appeals for the Seventh Circuit. Writing for a unanimous panel, Judge Frank Easterbrook rejected the application, explaining that the university’s vaccination requirement presented an “easier” case than Jacobson because the university, unlike Massachusetts, did offer religious and medical exceptions (exemptions for which seven of the eight plaintiffs were eligible) and the state does not require all adults to receive a vaccination. It just conditions attendance by nonexempt students at a public university on their receipt of a vaccination. On Aug. 6 the students filed an emergency application for an injunction pending appeal with the Supreme Court, but Justice Amy Coney Barrett (the circuit justice for the Seventh Circuit) has yet to take any action on it. But if the Supreme Court refuses to grant the application, that would leave intact Easterbrook’s reasoning—and the Seventh Circuit’s conclusions that a vaccination mandate with appropriate medical and religious exemptions runs afoul of neither Jacobson nor Smith.
Novel Questions Raised by Some Types of Coronavirus Vaccination Mandates
Although school vaccination laws appear quite safe and a universal requirement for all eligible residents to be vaccinated, show proof of exemption, or pay a fine (subject to medical and religious exemptions) appears to have even Justice Gorsuch’s support, some of the mandates recently adopted to promote coronavirus vaccination could raise novel questions.
Mandates that condition participation in specific types of events on vaccination status (as opposed to imposing a monetary penalty) could trigger concerns under the unconstitutional conditions doctrine. Conditioning attendance at religious services or political events (protected by the First Amendment) would probably trigger strict scrutiny. But there is no fundamental right to attend a concert, dine at an indoor table in a restaurant, or patronize a bar, theater, or gym. For instance, in Henry v. DeSantis, a U.S. District Court for the Southern District of Florida case declining to enjoin the state’s stay-at-home order and gathering limits, the court held that “[t]he Supreme Court has not found a ‘generalized right of social association’ under the First Amendment’s freedom of association.” Ditto the recent district court decision in M.A. (which concerned measles vaccination). Recall from above that the plaintiffs challenged an order that excluded their unvaccinated children not only from school but also from other places of public assembly, including religious gatherings of 10 or more people. The court dismissed that suit in an opinion that addressed the Supreme Court’s recent ruling in Roman Catholic Diocese at length. The court distinguished Roman Catholic Diocese and found the restrictions were neutral because they applied equally to secular and religious gatherings; thus, the emergency directive was subject only to rational basis review.
In addition, because some vaccination requirements for employees apply to workers covered by existing employment contracts and collective bargaining agreements, employees are raising procedural due process claims asserting a property interest in their employment. Similar claims brought by parents challenging school vaccination mandates have been rejected (as in M.A.), but there’s at least a novel set of issues in cases in which employment conditions implicate due process.
Finally, vaccination mandates that impose obligations on businesses—rather than on individuals directly—could raise novel questions about economic liberty. Fourteenth Amendment economic due process claims have been widely disfavored by courts since the Lochner era ended, but a district court judge recently endorsed this type of claim in an outlier decision (since stayed by the Third Circuit pending appeal) finding Pennsylvania’s stay-at-home order and prohibition on nonessential on-site business operations unconstitutional. To similar effect, Norwegian Cruise Lines has asserted economic liberty and interference with contract claims in its complaint challenging Florida’s new statute prohibiting private businesses from requiring proof of coronavirus vaccination as a condition of service. Similar arguments could be raised by restaurants, bars, gyms, and private schools if they are ordered to refuse service to unvaccinated patrons.
Private schools have long been required to verify vaccination status, but we are not aware of any suits asserting economic liberty to admit unvaccinated students. At least one private school has announced that it would not renew contracts for teachers who do receive coronavirus vaccinations, citing commonly circulated misinformation about risks to people who spend time in proximity to vaccinated individuals. Many businesses and private schools vocally opposed orders to close and limit their capacity. It would be unsurprising for some of them to challenge vaccination requirements that limit their operations—but, again, we think those would face an uphill battle in court if the mandates were drawn with sufficient care.
How Government Defendants and Lower Courts Can Put Vaccination Mandates on Firmer Footing
The wave of litigation related to coronavirus vaccination mandates is only just beginning. In light of recent signals from the Supreme Court, government defendants and lower court judges would be wise to more fully develop their reasoning in support of mandatory vaccination without breezily relying on Jacobson or Smith to side-step deeper analysis, including the proper standard of judicial review, of the fundamental rights allegedly infringed by compulsory vaccination. It may no longer be sufficient for a court to simply state that substantive due process challenges to mandatory vaccination are “foreclosed” by Jacobson (as the Second Circuit did in Phillips in 2015) or that, under Jacobson, “there can’t be a constitutional problem” (as Judge Easterbook suggested in Klaassen; emphasis added).
Here’s what we know at this point: Assuming Jacobson establishes a floor of constitutional protection, vaccination mandates must at a minimum not be arbitrary or discriminatory. At least some medical exemptions are probably constitutionally required—as supported by dicta in Jacobson, which lower court cases and Gorsuch’s concurrence in Roman Catholic Diocese have treated as functionally binding. It is possible that the Supreme Court may soon rule that at least some religious exemptions are also constitutionally required—which would be a departure from pre-pandemic state and lower federal court decisions upholding school vaccination laws that lack religious exemptions. At the very least, Tandon seems to imply that religious exemptions are required if there are also any secular exemptions.
In addition, the Supreme Court could determine that the minimal standard of review applied in Jacobson should be replaced by something more modern, particularly if lower courts continue to rely on the “plain, palpable violation” language in Jacobson to justify a form of review demanding even less than mere rationality. The modern standard of rational basis review is the most likely candidate, given that the court has not signaled strong support for substantive due process rights generally or for rights to bodily integrity or decisional privacy in particular. Heightened standards of review are possible, but unlikely so long as religious exemptions are generously granted. Again, this is where care in drafting matters: Most coronavirus vaccination requirements will easily meet rational basis review, and those with appropriate exemptions may also satisfy heightened scrutiny in the unlikely event that the court requires it.
Nor do post-Jacobson precedents on bodily integrity and decisional privacy call this analysis into question. Plaintiffs challenging coronavirus vaccination requirements have argued that they violate purported rights to privacy, to bodily integrity, to “freedom from unwanted touching,” and to refuse unwanted medical care and have argued that, as such, courts should subject them to strict scrutiny.
Whatever one thinks of Roe v. Wade and its progeny, it isn’t difficult to distinguish between a pregnant woman’s right to pursue an abortion and an individual’s right to refuse vaccination. Jacobson itself provides a strong rationale for doing so by emphasizing that an individual’s rights are counterbalanced by public health necessities. Alternatively, judges who strongly support a right to bodily integrity may want to hear arguments that vaccination mandates would survive heightened scrutiny under many circumstances—including in nonemergency conditions when the lack of a mandate could put herd immunity for infectious diseases like measles at risk. Once again, tailoring is the key.
Religious exemptions are an even trickier needle for government defendants and lower courts to thread. Pushing the envelope by excluding religious exemptions from coronavirus vaccination mandates could run headlong into Tandon. It could also put some states’ pre-pandemic school vaccination requirements at risk. Some observers may assume those laws’ days are numbered anyway; it’s virtually inevitable after Tandon that the court will narrow what counts as a neutral law of general applicability. But there may still be at least one path forward for governments to protect vaccination mandates that only offer medical exemptions.
In M.A. v. Rockland County Department of Health (the 2021 Southern District of New York measles case), for instance, the court struck a new path for upholding a vaccination mandate that provides a medical, but not a religious, exemption in a post-Tandon world. The court held that the measles vaccination mandate was “generally applicable because its single exception for medical exemptions served Defendants’ interest in quelling the measles outbreak just as much as the rest of its provisions.” Indeed, children with medical exemptions “were the ones Defendants were trying to protect by having everyone else immunized.” The Supreme Court has not yet offered much in the way of a principle for determining which (if any) secular exemptions might be permitted without rendering a law not generally applicable. The court’s reasoning in the measles case might solve the line-drawing problem in a way that protects laws strong enough to secure the high levels of vaccination required to sustain community immunity for measles (and perhaps also the coronavirus). At the very least, it’s an interesting thought experiment to apply a similar “exceptions that serve the purpose of the rule” test to the limits on capacity and gatherings the court blocked in Roman Catholic Diocese and Tandon. For example, allowing hospitals at least—and probably other facilities and services that can be defended as truly life-sustaining—to remain open without capacity limits might not render restrictions on houses of worship unconstitutional (assuming that hospitals are comparable to religious institutions in the first place).
Returning to coronavirus vaccination requirements, offering some form of exemption to the relatively small number of people who have a sincere religious objection to vaccination may nevertheless be a wise policy choice, even if some opponents of the new Supreme Court majority might deride it as a needlessly craven response to the signals the court is sending. Herd immunity can accommodate some amount of vaccine refusal (how much depends on the nature of the pathogen and how it is spreading—for example, measles requires a 95 percent vaccination rate because of how easily it is transmitted). And overreaching by refusing to recognize any religious objections whatsoever could backfire, making people who are vaccine-hesitant more recalcitrant.
And if the problem is that too many people are asserting fraudulent claims, the best path forward may be to offer religious exemptions but adopt procedural mechanisms to ensure applicants’ sincerity (as Dorit Reiss suggested recently). This approach might not trigger conservative judges’ wrath, or at least not nearly to the same degree as a bold move to eliminate nonmedical exemptions altogether. Indeed, in Roman Catholic Diocese, Justice Gorsuch specifically criticized the Jacobson plaintiff’s argument that the Fourteenth Amendment “allowed him to avoid not only the vaccine but also the $5 fine (about $140 today) and the need to show he qualified for an exemption.” Perhaps he would feel differently about what the First Amendment requires for religious exemptions than what the Jacobson court found the Fourteenth Amendment requires for medical exemptions. But perhaps not. Government defendants may find that they have little to lose at this point in the battle—and they may be surprised at how much more sympathetic courts that have been hostile to gathering bans and capacity limits are to vaccination mandates.
Editor’s Note: This article has been updated to delete a parenthetical with the authors' characterization of sincere religious objection to vaccines as an objection to all vaccination.