Vaccine mandates are constitutional

In light of a split among the federal circuit courts of appeals, the U.S. Supreme Court likely will soon need to rule on the constitutionality of vaccine mandates. It should emphatically and unequivocally hold that the government may require vaccinations and that it need not provide a religious or conscience exemption for those who object. It should affirm the power of the federal government to require that employees be vaccinated.

Recent litigation

There have been a number of rulings by federal appellate courts on vaccine issues in recent weeks. On October 16, the 1st U.S. Circuit Court of Appeals in Does 1-6 v. Mills upheld the constitutionality of Maine requiring all workers in licensed health care facilities to be vaccinated. The Maine requirement has no exception for those who object to being vaccinated based on their religious beliefs.

The 1st Circuit invoked the Supreme Court's 1990 decision in Employment Division v. Smith, which held that the free exercise clause of the First Amendment cannot be used to challenge a neutral law of general applicability. If a law is not motivated by a desire to infringe religion and does not discriminate against religion, it does not violate free exercise clause. The Court of Appeals said that Maine's requirement was based on a desire to protect public health and did not discriminate against religion. But the court went even further and said, "Strict scrutiny does not apply here. But even if it did, the plaintiffs still have no likelihood of success." Stopping the spread of COVID-19 is a compelling government interest and there is no better way to do so than vaccinations.

The plaintiffs then sought a preliminary injunction from the Supreme Court. On October 29, the high court denied this relief, but Justice Neil Gorsuch wrote a dissent, joined by Justices Clarence Thomas and Samuel Alito. These justices made clear that they believe that a religious exemption from vaccinations is constitutionally required.

On November 4, the 2nd U.S. Circuit Court of Appeals in We the Patriots USA, Inc. v. Hochul came to the same conclusion as the 1st Circuit. This case, too, involved a request for a preliminary injunction that would restrain the state from enforcing its emergency rule requiring health care facilities to ensure that certain employees are vaccinated against COVID-19. The 2nd Circuit also said that the requirement for vaccinations was a neutral law of general applicability and therefore did not infringe free exercise of religion.

On the other hand, on October 6, the 6th U.S. Circuit Court of Appeals in Dahl v. Board of Trustees of Western Michigan University upheld a preliminary injunction in favor of college athletes challenging a vaccine mandate. The 6th Circuit said: "Although it is a close call, because the free exercise challenge will likely succeed on appeal, the factors considered in granting a stay favor the student-athletes." The court said that under the Supreme Court's recent decision in Fulton v. City of Philadelphia, the university's vaccination requirement was not a law of general applicability because it allowed exemptions. The court concluded that strict scrutiny was the test and that it was not likely to be met.

Meanwhile, last week, November 12, the 5th U.S. Circuit Court of Appeals in BST Holdings, LLC v. Occupational Safety and Health Administration again stayed implementation of a Biden administration mandate, through the Occupational Safety and Health Administration, that employees with over 100 employees require that workers be vaccinated or tested. The Biden administration promulgated this as an Emergency Temporary Standard. The 5th Circuit said that for an emergency regulation to be upheld, OSHA must show that it is necessary to protect employees from "grave danger" due to exposure to "substances or agents determined to be toxic or physically harmful."

The court found that this standard was not met. It stated that COVID-19 does not pose a grave danger because the virus -- which is "non-life threatening to a vast majority of employees" -- does not arise to such a toxic or physically harmful "substance" or "agent" contemplated by the OSH Act. Also, the court said that the regulation likely exceeded Congress' power under the commerce clause because it regulates those who are not engaged in economic activity, those who are not being vaccinated. The court also indicated that the statutory delegation of power to OSHA likely is unconstitutionally broad.

There are petitions for review of the OSHA regulation pending in almost every circuit and as a result all of petitions for review will be consolidated before one of the federal circuit courts of appeals via a lottery system. The circuit court chosen will ultimately determine whether to continue, alter, or lift the 5th Circuit's order of preliminary stay.

What should the Supreme Court do?

Analysis must start with the reality: COVID-19 is a deadly disease that has killed more than 750,000 people in the United States and over 5 million in the world. It is stunning that there is a partisan divide in concern over COVID. A Pew Research Institute study found that 77% of Democrats -- compared with 45% of Republicans -- said they were very or somewhat concerned that they might unknowingly spread COVID-19 to others. And nearly two-thirds of Democrats (64%) were very or somewhat concerned that they would personally get COVID-19 and require hospitalization, while just 35% of Republicans expressed the same concern.

If federal judges and Supreme Court justices reflect this same partisan divide, then vaccination mandates could be in great danger. But under well-established law, they should be upheld.

First, people do not have a right to refuse vaccinations. In Jacobson v. Massachusetts, in 1905, the Supreme Court upheld the constitutionality of a vaccinate mandate. The court was explicit that the government can require vaccination to stop the spread of a communicable disease. Since then, lower courts almost without exception have upheld requirements that students and employees be vaccinated against a myriad of communicable diseases.

Second, laws requiring vaccinations are the epitome of neutral laws of general applicability and therefore no religious exemption is required. Indeed, religious exemptions raise many practical and constitutional issues. How is "religion" to be defined and how is it to be ascertained if there is a "sincerely held" religious belief? If there is an exemption for religious beliefs, but not for conscience objections, does that impermissible favor religion in violation of the establishment clause of the First Amendment? Moreover, the 1st Circuit was right: even if there is a burdening of religion, strict scrutiny is met because there is a compelling interest in stopping the spread of a deadly communicable disease and there is no less restrictive alternative.

Third, OSHA has the authority to issue an Emergency Temporary Standard requiring vaccinations or testing in workplaces over 100 employees. Workers are in "grave danger" from an "agent" that is physically harmful": the COVID-19 virus. There is no doubt that sick workers, taken cumulatively, have a very substantial effect on interstate commerce.

Conclusion

It is sad and frightening that perceptions of the pandemic and about vaccinations have become politicized. A Gallup survey released on September 29 confirmed the KFF findings. As of mid-September, 75% of adult Americans have been vaccinated, including 73% of non-Hispanic white adults and 78% of non-whites. Along party lines, however, the breakdown was 92% of Democrats, 68% of Independents, and 56% of Republicans.

Perhaps it is naïve and impossible to ask our judges to transcend the views of their political parties. But the law is clear and the public health situation demands we expect this. Courts should uphold vaccine mandates. 