Since the onset of the Covid-19 pandemic, presidential administrations, governors, and state health departments have relied heavily upon a century-old doctrine as a justification to exert police powers over U.S. citizens in an effort to stem the spread of the disease. First discovered in Wuhan, China in December 2019, the underlying coronavirus, which develops into Covid-19 in patients, quickly began to spread across the globe. The first-known death attributed to Covid-19 in the United States, and the first declared site-specific outbreak in the country, occurred in February 2020 at a Washington state long-term care facility not long after the virus had been identified in China. More than a year later, doctors and researchers determined Covid-19 was circulating in the United States prior to the outbreak in Washington.
As the country watched Covid-19 unfold in Southeast Asia, Europe (particularly Italy), South America (notably Brazil), Australia and the South Pacific, and at home, governors and state public health authorities in the United States began scrambling to put together a cogent plan for how to address the novel coronavirus. As soon as February 29, 2020, states began enacting states of emergency to trigger the consolidation of emergency powers to governors and public health agencies. By April 2020, over 310 million Americans were being governed under executive orders ranging from shelter-in-place directives to complete lockdowns of non-essential services, including most non-emergent medical care. Additionally, governors had begun to issue directives to mandate indoor and outdoor mask-wearing, shutter in-person learning for public schools, and in most states, close all in-person dining at bars and restaurants.
As states sought to develop localized plans to stop the coronavirus spread, President Trump’s administration, flanked by health experts like Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, declared that shutdowns and stay home orders would require Americans to avoid social gatherings and work from home if possible in an effort to “flatten the curve” of the uptick in coronavirus transmissions. The politics of Covid-19 and differing strategies, particularly between Democratic governors and a Republican president, quickly became apparent, with “blue” states adopting more stringent stay-home policies than “red” states. Meanwhile, there was some debate about the lack of strict measures adopted by the president, whose main concern during an election year was to keep the economy open.
When two weeks to “flatten the curve” had come and gone, and as the country was now months into the pandemic, most governors continued to exercise control over the public health crisis by extending emergency orders, both in duration and in the covered subject matter. Frustrated shoppers,restaurant owners, and parents of school children began pushing back against Covid-19 mandates by filing lawsuits in state and federal court under a variety of legal theories. Many of the lawsuits against Covid-19 mandates specifically sought to enjoin state governors and public health authorities from continuing to exert governance through executive orders. However, courts around the nation found that most governors enjoyed broad executive authority to work through executive orders. These specific emergency powers, depending on the state, were either enacted via statute or granted in state constitutions. Courts in many jurisdictions, both state and federal, have upheld most mandates as a legal exercise of state police powers, except in very few instances where plaintiffs could demonstrate issues of local control (school districts suing to block mask bans issued by a governor’s executive order), or mandates which directly infringed on First Amendment religious liberties (overturning masking and social distancing requirement directives against faith-based individuals and organizations).
Just as the breadth and depth of executive order mandates have run the gambit to cover mask-wearing (for and against); business closures; school shutdowns; redistribution of personal protective equipment (without compensation) from private health practices to public entities; and rent/mortgage moratoriums; so too has the number of plaintiffs who have come forward to push back on these mandates through the judicial system. Moreover, lawyers have run all manner of legal theories up judicial hills in an attempt to challenge governor executive authority. Cases involving the Takings Clause, Equal Protection Clause, Due Process Clause, Citizenship Clauses of the Fifth and Fourteenth Amendments, the non-delegation doctrine, and a bevy of state statutory arguments have been made, but most failed in preliminary challenges under the premise that the cases should be scrutinized using rational basis review. Judges who weighed in favor of state actions made determinations that states’ interests in managing the spread of Covid-19 outweighed the rights of individuals during a public health crisis. Further, any liberty interests being implicated by such restrictions were considered acceptable given the states’ rights to exercise police powers over their citizens. Only the cases where the state executive orders egregiously implicated religious freedoms was the application of strict scrutiny used by the courts.
As the pandemic progressed, pharmaceutical companies were quick to work on vaccines to try to stop the spread of Covid-19. Under Emergency Use Authorization, the federal Food and Drug Administration (FDA) allowed the rollout of three brands of Covid-19 vaccines to be distributed for use across the country. Initially, states, under the advice from the Centers for Disease Control and Prevention (CDC) worked to implement a tiered system of vaccine distribution, prioritizing healthcare workers, nursing care facilities, and other essential workers to receive the vaccines first. By May 2021, anyone who wanted a vaccine was eligible to receive one. However, once the first waves of people who were motivated to accept a vaccine subsided, it was evident that vaccine hesitation would preclude the country from reaching any level of vaccination close to the 75 percent rate the CDC and Dr. Fauci believed necessary to shut down the pandemic. Creative governors first looked to incentives to induce people to become vaccinated. Chances to be entered into cash lotteries, offers of college scholarship money, gift card giveaways, and more were used to entice people to be vaccinated. As those efforts fell flat and vaccination rates stagnated nationally, governors and mayors, beginning with the state of California and eventually including the Biden administration, turned to the stick approach of exercising police powers to place unvaccinated Americans into the tenuous position of accepting a vaccine or losing access to employment, education, and public accommodations.
Lawsuits against new mandates ensued, but requests for injunctive relief against the vaccine mandates were denied all over the country. The doctrine guiding judicial review was that police powers had been well established in 1905 when Henning Jacobson sued the Commonwealth of Massachusetts over a vaccine requirement and lost.
Historical Rational for State Police Powers During a Public Health Crisis
The United States Supreme Court’s rationale in 1905 for allowing a state to exercise broad police powers as outlined in Jacobson v. Massachusetts has been cited in nearly every vaccine mandate holding during the Covid-19 pandemic. Though these recent holdings have not resulted directly in physically forcing a vaccination upon one’s person, they have resulted in situations where plaintiffs have had to consider whether to give up their rights to bodily autonomy in lieu of keeping some other benefit (such as a job, school, and/or access to public and private facilities). This recent twist in the application of Jacobson goes beyond the outcome in Jacobson, where the plaintiff’s only obligation in meeting the requirements of the vaccination policy was the loss of five dollars (or $157.15 in today’s dollars). The cost of this choice is much higher when contemplating the loss of a high-paying government job (like teacher vaccine mandates) or the potential loss of a college scholarship.
In Jacobson, the court evaluated whether a local board of health of a city or town had the authority to require that all citizens over the age of 21, who were not under guardianship, undergo vaccination for smallpox (which it would make available to citizens for free), or be required to pay a five-dollar sanction for failing to undergo vaccination. An exception was made for children if a physician could attest that the child was unfit to accept the vaccine.
Jacobson’s question to the court was whether his Fourteenth Amendment liberty interest in refusing to accept the smallpox vaccine was infringed upon by the state’s law allowing local health boards to impose vaccinations on its citizens. The court applied rational basis review to the case, which is the normal standard of review courts apply when considering constitutional questions to see if a law is rationally related to a legitimate government interest. Heightened scrutiny is applied where a fundamental right is implicated. The court examined the issue of smallpox as a contagious disease in the community, and how the prescribed use of the vaccine as a matter of public policy would work towards eradicating the disease. The court determined based on prior case history that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Judge Harlan, in his opinion, also referenced that courts in numerous states had already addressed vaccine requirements as a valid condition of enrollment in public schools. Offers of what Jacobson considered to be proof of why he believed a vaccine could cause him health problems (based on his past medical history of a negative vaccine reaction), and his anecdotal experience of vaccines causing injury that could result in sickness or death, were rejected by the court on the basis that Jacobson’s fear of vaccine injury did not outweigh the wisdom of medical professionals who found the vaccine to be safe. The court noted that if the legislature had come to the conclusion that vaccination was “at least an effective, if not best-known way in which to meet and suppress the evils of a smallpox epidemic that imperiled an entire population” then the court would only review the legislature’s choice of policy if it had “no real or substantial relation” to the public safety policy objective, or if “beyond all question, a plain, palpable invasion of rights secured by a fundamental law.”
Although the Supreme Court ultimately upheld the lower court and required Jacobson to pay the fine, it did make three interesting observations which have yet to be revisited in any of the current vaccine mandate cases, and which also open the door to the possibility that vaccine mandates should be reevaluated in light of present-day levels of strict scrutiny in bodily autonomy and fundamental rights of privacy:
- Judge Harlan noted that although the court supported the Massachusetts statute allowing compulsory vaccination, the court would “not be inclined to hold that the statute establishes the absolute right 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 for vaccination” which the court also interpreted to mean could impair one’s health or bring about death.
- The court made clear that the decision only covered the immediate case. It left open that cases with different factual circumstances or future court rulings could allow the police powers in a public health crisis to be revisited using new analyses.
- A footnote in Jacobson, which the court relied upon in its historical analysis about the efficacy of vaccines, included data separating out those who had naturally been exposed to smallpox as its own category of the population. As the United States nears 80 million positive Covid-19 cases, the allowance for natural immunity should be part of the debate about the bodily autonomy and medical privacy decisions of those who have recovered from the disease as to whether they should be subject to mandatory vaccination. The court in Jacobson relied upon data which contemplated this group separately of the vaccinated and unvaccinated populations.
These three untested point are a potential springboard for individuals in today’s current pandemic crisis to seek a different decision from the holding in Jacobson, one based not on the oft-cited police powers holding in the original case and a rational basis review, but a decision that factors in heightened levels of scrutiny and modern notions of the penumbra of fundamental rights which include an individual right to privacy and bodily autonomy in personal decisions of health and family choices.
Jacobson Applied as Precedent to Uphold Covid Vaccine Mandates
More than a quarter of the cases that cite Jacobson v. Massachusetts as precedent for state police powers (294 Covid-19-related cases so far) have been decided in the time since the pandemic began. As states have eased back from masking and limited gathering requirements, the more recent battleground over executive orders has been with regard to vaccine mandates. States have enacted them for public employees, local school districts have enacted or are considering enacting them for students, and local city and county jurisdictions individually have used executive and municipal ordinances to ban unvaccinated people from places of public accommodation that had been open to them prior to the pandemic.
One recent example of a vaccine mandate case which was dismissed by the Ninth Circuit Court is Williams v. Brown. An examination of the holding demonstrates that courts are relying heavily on the decision in Jacobson to arrive at the conclusion that vaccine mandates are an appropriate exercise of a state’s police power during a public health crisis.
In Williams, a case from Oregon arising under a state executive order requiring people working in public employment settings to be vaccinated, the plaintiffs represented unvaccinated public employees who worked in the fields of corrections, public education, state justice department employment, and as emergency medical services technicians. Through a combination of executive orders and temporary Oregon Administrative Rules promulgated by the Oregon Health Authority, Oregon enacted a sweeping vaccine mandate that included all executive branch employees, all public education workers, and all healthcare personnel, whether they worked for public or private entities. The orders and rules overrode a state statute that allowed healthcare workers in Oregon to be exempt from a vaccine requirement as a condition of work. The measures did allow for exemptions for medical or religious reasons when an employee provides documentation. All plaintiffs in the case had recovered from Covid-19; natural immunity was not given an exemption directly or under the medical exemptions.
Plaintiffs brought their claim seeking an injunction against the mandate under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. For the due process claim, the court conducted a two-part analysis using its own Ninth Circuit holding that “[t]o state a prima facie substantive or procedural due process claim, one must, as a threshold matter, identify a liberty or property interest protected by the Constitution.” On the procedural claim that Oregon’s mandates were not “legislative acts,” the court determined that it mattered little the difference between a legislative act and an agency rule, rather, “the character of the action, rather than the label, determines whether those affected by it are entitled to constitutional due process.” On the substantive claim, the court’s framework required that to use a strict scrutiny lens for vaccine mandates, the policy must “shock the conscience and offend the community’s sense of fair play” and that plaintiffs needed to make an argument which “depends on the existence of a fundamental right ingrained in the American legal tradition.” Without considering more recent cases related to bodily autonomy and privacy, the court’s analysis went straight to Jacobson as a rationale to dismiss any possibility that a fundamental right existed for the plaintiffs. This same lens was applied to the plaintiffs’ equal protection claim, finding that their status as recovered Covid-19 patients did not rise to the level of elevating their request for heightened scrutiny. Rather, like many of the other Covid-19 mandate cases, the court’s decision-making rationale stressed the need to adhere to precedent for a rational basis review: that “[g]overnmental action is rationally related to a legitimate goal unless the action is clearly arbitrary and unreasonable, having no substantial relation to public health, safety, morals, or general welfare.”
In its decision to grant summary judgment for the state, the court was more persuaded by the preamble of Governor Kate Brown’s executive order than in exploring more deeply the need to reevaluate the mandate through the lens of bodily autonomy and privacy precedents, stating “[w]hatever hardships Plaintiffs face in choosing between accepting vaccination or leaving their employment are substantially outweighed by the interests and needs of the State of Oregon and her people.”
Strict Scrutiny and Liberty Analyses from Seminal Bodily Autonomy Cases Lay a Foundation for Jacobson to be Overturned
While there is no doubt that Covid-19, which has sickened nearly 80 million Americans and has tragically taken nearly 925,000 lives, is a public health crisis, the government’s solution to mandate vaccines under a threat more severe than the fine levied in Jacobson does not warrant the adherence to stare decisis for use of a rational basis analysis given more recent, seminal cases that have broadly adopted bodily autonomy and privacy as fundamental liberty interests guaranteed to Americans under the Ninth and Fourteenth Amendments. Different from the facts in Jacobson, where the court’s expectation then was that the smallpox vaccine would entirely eradicate the disease, the waning protection of the Covid-19 vaccine in providing immunity and transmission of the disease by fully-vaccinated individuals; the increase of evidence-based scientific data which shows natural immunity is durable; and the emergence of efficacious treatments like monoclonal antibodies and drug therapies have undercut the government’s (state or federal) argument for mandatory vaccinations. Those same developments of advancements in our understanding of Covid-19, coupled with key Supreme Court decisions about bodily autonomy and privacy, give rise to the need for a strict scrutiny approach to vaccine mandates that are infringing not only on people’s individual liberty right, but on their relationships with their children.
The holdings from three seminal bodily autonomy and privacy rights cases, when evaluated in the aggregate, create a foundation upon which an argument to extend strict scrutiny and the fundamental right to make decisions for one’s person in absence of government control can be applied to Covid-19 vaccine mandates. Beginning with Griswold v. Connecticut, and extending in progression to Roe v. Wade and Lawrence v. Texas, the court has taken the country away from a time when government could exert more control over private matters and personal decisions, to a place where the words in the Fourteenth Amendment which provide a guarantee people will not be deprived of “life, liberty, and property” without due process or equal protection of the law, have taken on significant meaning and provided government parameters with which not to infringe upon the rights of its citizens.
Griswold v. Connecticut
The path to privacy and bodily autonomy got its early bricks laid in cases that protected parents’ rights to educate their children in a manner they saw fit, associational privacy rights against government intrusion, and the rights of unmarried interracial couples to cohabitate. However, Griswold v. Connecticut was instrumental for its approach in how the majority opinion wove together a narrative that the First Amendment created a penumbra in which privacy rights existed, free from intrusion of the government, and that the combination of several constitutional guarantees including the First, Third, Fourth, Firth, and Ninth Amendments create “zones of privacy.” It was in those zones of privacy that the court developed a basis for its decision that Connecticut’s law effectively banning the use of contraceptives by married couples was unconstitutional.
Under the Due Process Clause, “liberties that are ‘so rooted in the traditions of our people as to be ranked as fundamental’” are protected. The court described the traditional family to be “a relation as old and as fundamental as our entire civilization” and that though nothing expressly in the Constitution spoke to protecting the liberty interest of families to make their own decisions, the Ninth Amendment was designed to cover such “fundamental personal rights” from government intrusion. Because the court considered marital rights of privacy to be fundamental, the Connecticut statute was viewed through a strict-scrutiny lens. Connecticut’s birth control law needed to be shown as “necessary, and not merely rationally related to, the accomplishment of a permissible state policy.” It was not. Justice White, in his concurrence, stated that the law “deprives [married couples] of liberty without due process of the law” and that “liberty [is] entitled to protection” and “among the basic civil rights of man.”
With the marital freedom and privacy bricks laid in the path, the court moved from Griswold to tackling a woman’s fundamental right over her body during pregnancy.
Roe v. Wade
If you are one of the 110 million Americans born after 1970, the year “Jane Roe” took on the state of Texas to secure her rights to terminate her pregnancy, you will have never been cognizant of a time when a woman did not generally have the right to an abortion in this country. Building on Griswold’s theme that individual privacy rights are secured by the Due Process Clause of the Fourteenth Amendment and further protected as a “right reserved to the people by the Ninth Amendment,” the court in Roe v. Wade held that the Texas statute that criminalized abortion and provided only one exception (to save the life of the mother) violated Roe’s due process rights under the Fourteenth Amendment. The court also determined that the right to an abortion was not an unfettered right up until the last moment of a pregnancy, leaving open the opportunity for the state to place restrictions on abortion after a time the fetus would be viable outside the womb, “so long as those restrictions are tailored to recognized state interests.”
As it did in Griswold, the court applied a strict-scrutiny lens, but in Roe, the court was more explicit about how privacy covered medical decisions. That court made clear that whether in the Fourteenth Amendment’s personal liberty guarantee or in the Ninth Amendment’s guarantee of rights that are reserved to the people, either “is broad enough to encompass a woman’s decision” and that a state imposition could create a detriment to the woman by “denying this choice” that may “force upon the woman a distressful life and future.” As the court contemplated the litany of scenarios which could create a “distressful life and future” for a pregnant woman forced to carry a child to term, it was a decision for the woman and her doctor to consider, not the woman and her government.
Although a future court in Planned Parenthood of Southeastern Pennsylvania v. Casey put sideboards on Roe v. Wade in the form of procedural and administrative processes a state can require in order to obtain an abortion, the court has not (yet) rolled back the foundational holding in Roe that a woman can be self-determined in making her own medical decisions until such a time that the state can show a compelling interest to limit that right, but only after the time in the pregnancy where the fetus is viable. Arguably, the decision remains politically controversial. Doctrines of individual privacy and medical freedom determined in Roe laid more bricks in the path, establishing for the country that bodily autonomy is a fundamental, protected right, touching upon nearly 4,200 documented cases since 1975 including those cases which have expanded privacy protection to what was once considered criminal activity for what is now nearly six percent of the U.S. population
Lawrence v. Texas
In Lawrence v. Texas, not only did the court use privacy rights cases like Griswold, Roe, and Casey to cement a fundamental privacy right for people of the same genders in their sexual relationships, importantly, in doing so, the court (1) broke with stare decisis to overturn a case with similar facts (Bowers v. Hardwick) and (2) determined in doing so that “[t]here has been no showing in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.” The court found that Texas’ law that imposed criminal punishment on those who commit sodomy was an unconstitutional violation of the Due Process Clause. The Lawrence court’s reading of Roe as a basis for overturning the Texas sodomy statute was that Roe “confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.”
When the majority in Lawrence determined that Bowers should be overturned, it did so by recognizing that “laws and tradition afford constitutional protection to personal decisions” and that “the Constitution demands respect for autonomy.” With the Lawrence decision, zones of privacy were now greatly expanded with increased protections for a wider swath of people.
Application to Covid-19 Vaccine Mandates
The judicial framework of privacy, bodily autonomy, and medical freedom has become a more developed theme in American law since Griswold was decided. That framework has also set an expectation that a strict-scrutiny lens should be applied to vaccine mandate cases during the Covid-19 pandemic. Fundamental privacy rights should be given a more heightened level of scrutiny when those rights are threatened. The court should be more willing to overturn outdated precedent when it no longer serves a judicial purpose in modern times. However, courts do not seem ready to pitch Jacobson out with Sunday night’s trash.
Recently, the Fifth Circuit issued one of the first-in-the-nation stays to a vaccine mandate policy, but the decision to stay that mandate did not stem from a furtherance of any judicial ideals about bodily autonomy and privacy rights. Rather, it came instead as a challenge to the Biden administration’s Emergency Temporary Standard (ETS) rulemaking facilitated through the Occupational Safety and Health Administration (OSHA) which requires private companies with 100 or more employees, and federal contractors, to be vaccinated or face a loss of employment or government contracts. The Fifth Circuit determined that OSHA did not have the authority to issue the rule under the ETS because the governing code provisions which Congress created for allowing such rule promulgation were too narrow to allow the vaccine mandate to stand, stating that “OSHA runs afoul of the statute from which it draws power and, likely, violates the constitutional structure that safeguards our collective liberty.” While the Fifth Circuit’s limited attention to liberty is laudable, the court sidestepped any discussion about vaccines being an invasion of personal rights (although it did question out loud that orders should consider natural immunity). The court pointed to Jacobson in its admonishment that OSHA had overstepped the police power of states conferred by Jacobson when it issued its mandate under the ETS. In doing so, the Fifth Circuit effectively validated the 1905 Jacobson holding. Privacy advocates are still waiting for a case vehicle and the ear of a willing judiciary who will consider setting Jacobson aside in favor of protecting the individual’s right to privacy and bodily autonomy.
It should be noted, because of the Fifth Circuit’s approach to staying the Covid-19 vaccine mandates, its decision has no applicability to state-issued mandates. In fact, it could strengthen the authority for state vaccine mandates because the decision reaffirmed Jacobson’s recognition that the power to compel a vaccination is a power that rests within a right reserved to states.
Today’s Covid-19 pandemic and vaccine mandates bear little resemblance to the smallpox pandemic underlying the decision in Jacobson. Smallpox killed 30 percent of those infected with the disease within two weeks of onset; in contrast, Covid-19 has taken the lives of 1.2 percent of those who have been documented with a positive test. Further, the smallpox vaccine effectively eradicated the disease. While Covid-19 vaccines have been effective in reducing hospitalizations and death, they have not wholly prevented community spread or individual infection.
The Supreme Court should allow a case to be decided which would give those opposed to vaccine mandates on the grounds of personal liberty infringement the opportunity to secure robust rights of privacy and autonomy. The issue may deserve a more robust debate than provided under rational basis review. Using a level of strict scrutiny and building on the foundational framework of bodily autonomy cases from the past 55 years, it may be time for the courts to declare Covid-19 vaccine mandates a due process violation, a violation of fundamental privacy rights, and a violation of the medical freedom to self-direct the course of one’s personal healthcare choices.