Students challenging IU vaccine mandate file for U.S. Supreme Court review

Students walk past the newly-completed Metz Bicentennial Grand Carillon in the Cox Arboretum during the first day of spring semester classes at Indiana University Bloomington on Monday, Jan. 13, 2020. (Image courtesy of Indiana University)

The legal battle over whether Indiana University’s COVID-19 vaccine mandate is constitutional is now at the U.S. Supreme Court.

The students challenging IU’s vaccine requirement on Friday filed an emergency application for writ of injunction with Justice Amy Coney Barrett, circuit justice for the 7th Circuit. The students are seeking a writ of injunction against the mandate by Aug. 13.

In May, the Bloomington-based university system announced it would require all students, faculty and staff to get vaccinated against COVID-19 before returning to campus this month.

Exemptions are in place for medical, religious and “ethical” reasons, but those granted exemptions must wear a mask, practice social distancing and participate in regular COVID testing. Of the eight student-plaintiffs, six have received an exemption while a seventh is eligible but has not requested an exemption.

The students-plaintiffs have challenged the mandate in the U.S. District Court for the Northern District of Indiana and at the 7th Circuit Court of Appeals, but so far their efforts have been unsuccessful.

“This case presents this Court with the opportunity to address important constitutional issues and to provide needed guidance to lower courts regarding the flood of COVID vaccine mandate-related cases already pending and expected, regarding the historically unique, but now ubiquitous, situation where state officials, as here, claim the authority to compel vaccination based upon precedent that is over a century old, despite this Court’s developed jurisprudence regarding substantive due process rights since 1905,” the students’ emergency application states.

“This Court has developed doctrines to protect the infringement of fundamental rights of bodily integrity, autonomy, and medical choice, and the scrutiny level that should be applied to these constitutional questions, depending on the context involved. Now this Court has the opportunity to decide in this case whether Students are protected by these doctrines. … This Court can provide this needed guidance by granting this motion and by ultimately granting certiorari—it is likely that this Court will do so and reverse the lower courts herein,” the students wrote.

Echoing earlier arguments made in the district court and the 7th Circuit, the students—represented by The Bopp Law Firm in Terre Haute—say IU’s vaccine mandate should be subject to heightened scrutiny that requires the school to prove the mandate is constitutional under the 14th Amendment. But the lower courts applied rational basis review, relying on Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).

But in the 100-plus years since Jacobson was decided, the court’s substantive due process jurisprudence has evolved, the students argue. They point to cases such as Sell v. United States, 539 U.S. 166 (2003), which used strict scrutiny to strike down the involuntary administration of drugs to a mentally ill defendant facing criminal charges.

“Surely a medical treatment choice by law-abiding adults, like Students, is entitled to at least the same respect as a medical treatment decision by a person with a severe mental illness awaiting trial,” the emergency application, signed by conservative lawyer James Bopp Jr., says.

Under either intermediate or strict scrutiny, IU could not prove the vaccine mandate is constitutional, the students’ filing continues. They say COVID cases and deaths have fallen significantly since March 2020, and the risk of hospitalization and death among college-aged students is low, even with new strains of the virus including the delta variant.

Data from the Indiana Department of Health as of Friday show that the highest portion of Indiana COVID cases, 18.5%, were among Hoosiers ages 20-29. Those ages 18-19 comprised 4% of cases, while those ages 30-39 comprised 15.6%.

But deaths among those same age groups were considerably lower. Only 0.2% of deaths in Indiana have occurred among those ages 20-29, while 0.6% of deaths have occurred among those ages 30-39.  The highest percentage of deaths, 50.5%, has been among those 80 and older.

“Under the proper standard of review, IU cannot prove that it has a compelling interest at this stage in the pandemic or for this age group,” the students wrote Friday. “Given the lack of serious danger COVID poses to college-age students, the relatively low hospitalization and death rates, even with the Delta variant, IU’s Mandate is not justified at this stage as applied to this age group. Additionally, IU cannot prove that IU’s Mandate would prohibit the spread of COVID, and lessening the risks of COVID for this age group is not a compelling interest when severity was already minimal and deaths almost nonexistent.”

Further, the mandate is not narrowly tailored, the plaintiffs continue, arguing that measures such as voluntary vaccination, masking, social distancing, sanitizing and testing are the least restrictive means of accomplishing IU’s goal. They also argue the “ethical exemption” to the mandate, which has not been specifically defined, makes the mandate underinclusive.

An IU spokesman declined to comment on Friday morning.

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21 thoughts on “Students challenging IU vaccine mandate file for U.S. Supreme Court review

  1. These are some of the lamest, whineyest, laziest complaints. Their lawyers must be thrilled to have such awful clients as the guy with a religious problem with masks who wears his mask at religious meetings, and the woman who thinks nose swabs cause cancer.

    1. Ah, but the religious exemption would still have to wear a mask per this snippet from the article:
      .
      Exemptions are in place for medical, religious and “ethical” reasons, but those granted exemptions must wear a mask, practice social distancing and participate in regular COVID testing.
      .
      Now, what a college/university should say is this:
      .
      …participate in regular COVID testing at the student’s expense.

  2. Or how about this: if the vaccine is effective, get one and don’t worry about anyone else. Once the vaccine is available, it is personal choice to decide if you want to take the risk of getting the virus.

    Or, how about this: there is no data that suggests someone with antibodies has any greater risk than someone with the vaccine. Millions of Americans.

    Until the CDC, Dr. Fearmonger, or JoeMentia can produce reliable data, the educated will stand by unvaccinated. The dog-and-pony “trust the science” is completely defeated by downright deceitful guidance by the CDC.

    1. Nobody is forcing these guys to get vaccinated. They are just making them choose between keeping others safe by wearing a mask and getting tested, or keeping others safe by getting vaccinated.

      FYI…. I will. have to say that under the previous administration guidance from the CDC might have been changed for political motivations, but it seems now that guidance from the CDC might be changing because of new information, ie the spread of the Delta variant among the unvaccinated and the possibility of break through infections from this new variant.

      I do believe there is strong data, mainly from other countries that were not lucky enough to get the vaccine as soon as the US did, that once infected with COVID 1.0, you are just as susceptible to COVID Delta.

      You may be standing on the side of the politically influenced and or uneducated on this one. Even the law says so.

  3. Those making a “personal choice” not to be vaccinated or not to mask up in appropriate settings are also making a choice to put others at risk. As a society, we all have a community responsibility and we can’t allow an individuals personal choice to put others at risk. Public health measures are not an attack on personal freedoms. Do your part…step up….get vaccinated.

  4. Very simple, if you don’t like the rules set by the university, GO SOMEWHERE ELSE! That is the great thing about living in the USA, we have choices! Don’t endanger someone else from your selfish acts! Just get the vaccine and let’s end this pandemic!

  5. its encouraging to see that we are not raising a complete generation of mind numbed liberals who can actually think for themselves and not have the nanny state do it all for them. Its quite apparent to me that the ‘Vaxxed community’ does not even believe the science otherwise why do you worry so about the unvaccinated. You’re perfectly safe right?

    1. No one has claimed anyone is “perfectly safe” from this virus.
      The vaccines are miracles but there are still failures particularly amongst those who are immune compromised. Likewise many of us have children who are not yet eligible for the vaccine but put at risk by selfish political stances.
      What immunity is acquired with the vaccines will clearly wane with time.
      The “Vaxxed” community will be stuck paying for much of the unnecessary healthcare of those unvaccinated – along with the other unnecessary economic and social consequences.
      Too many folks think they are more knowledgeable than healthcare experts. I can assure everyone this virus is smarter than everyone – without adequate vaccine numbers it ill likely evolve until we have no way to prevent many more millions of deaths.
      This virus should have been – could have been controlled in the US if it weren’t for the demagoguery of political leaders and their legion of poorly educated lemmings.

    2. As long as you and all anti vaxxers take full responsibility for any future shutdowns, economic slowdowns, covid mutations, and 99% of the deaths due to Covid. Also, dont bother asking for or saying you should have gotten the vaccine on your deathbed.

    3. Why worry about the unvaccinated if you’re vaccinated? What doesn’t kill you mutates and tries to kill you again, that’s why.

  6. Kelly and Patrick scare me the most; way more than the COVID 19 infection. Notions such as “community responsibility” and “do your part” and “go somewhere else” or “selfish acts” or best yet “Just get the vaccine and lets end this pandemic.” What country did they grow up in. Indeed it has been immigrants from places like the former Soviet Union and Cuba and Venezuela that have had to step up and remind us what comes with this sort of insane Gestapo type order.
    Have any of these people ever heard of the “Nuremburg Code?” It specifically prohibits the use of people for experimental medical treatment or medicines. It was arrived at as a result of the Nuremburg trials and the horrendous acts by the Nazis. All of the COVID “vaccines” are not approved and are as such EXPERIMENTAL.
    Also, to Patrick, IU is a state university, not a private institution. It is at least partially paid for by tax payer’s money.

    1. For an “experimental” drug, it has been proved remarkably safe and effective among the hundreds of millions of people who have taken it. So much so that the FDA is preparing to grant it full approval within weeks. What will your argument against it be then?

  7. Deaths in the U.S. from the common flu have been in the range of about 20,000 – 60,000 per year over the last decade (https://www.cdc.gov/flu/about/burden/index.html) and as a society we’ve more or less said “such is life” and gone about our normal business. If there were a disease like the bubonic plague that in the 1300s killed millions including around 30% of the population of Europe and in some concentrated areas like Florence, Italy, maybe as much as 70% (google it), then we’d all be screaming for quarantines and whatever extreme measures necessary to protect ourselves. The problem with COVID is that it is in a range of deadliness for which there is no consensus on what the trade-off should be between liberty and public health. I personally think the risk of doing serious damage to our economy is greater than the COVID risk . . . that the cure is worse than the disease. For those that think that “lives” should matter more than “the economy”, then my answer is that lives are definitely impacted by a poor economy, and it is usually the poorest and most vulnerable who suffer most during periods of nationwide economic hardship. We’ve chosen to fight wars to protect our liberty and long-term economy to ensure that our children would have liberty and prosperity, but those children now seem willing to throw much of that away due to this disease. I don’t think most have any conception of the potential long-term implications of our massive debt spending. Having said all that, I chose to get vaccinated even though I didn’t think it necessary since I got COVID in Nov. of 2020 with minimal symptoms but I also travel for business and didn’t want to be hassled about my vaccination status and I wasn’t seriously concerned about the vaccine hurting me either. Data suggests strongly that I was largely protected with antibodies going forward even without the vaccine. Data also suggests that getting at least the first of the two shot regimen serves as a helpful “booster” to the immune system for those previously infected. On the other hand, people like me who choose not to live in fear and mingle freely (though respectfully distance from anyone who may have concerns, and I mask-up in any institution that asks me to, and just avoid those that ask if I can) has almost certainly been re-exposed many times and thus I’m keeping my antibodies up. On the other, other hand, I’m more careful about my 87 year old mother because the data says she is more at risk (though in her case she has an amazing immune system that has resulted in her rarely being sick at all in her life, which I did NOT inherit). So, I don’t think anyone should be forced to get vaccinated because there are good reasons not to bother, but I also think there is enough evidence to suggest that the vaccines are unlikely to hurt you and may help you. But, pertinent to this article, there is evidence that for younger people in their 20s and younger the risk of the vaccine may be equal to or possibly greater than the disease itself. So, that’s the problem, we’d likely all agree more if the disease were either less deadly, or much more deadly, but since it is in between, we fight over it.

  8. Deaths in the U.S. from the common flu have been in the range of about 20,000 – 60,000 per year over the last decade (https://www.cdc.gov/flu/about/burden/index.html) and as a society we’ve more or less said “such is life” and gone about our normal business. If there were a disease like the bubonic plague that in the 1300s killed millions including around 30% of the population of Europe and in some concentrated areas like Florence, Italy, maybe as much as 70% (google it), then we’d all be screaming for quarantines and whatever extreme measures necessary to protect ourselves. The problem with COVID is that it is in a range of deadliness for which there is no consensus on what the trade-off should be between liberty and public health. I personally think the risk of doing serious damage to our economy is greater than the COVID risk . . . that the cure is worse than the disease. For those that think that “lives” should matter more than “the economy”, then my answer is that lives are definitely impacted by a poor economy, and it is usually the poorest and most vulnerable who suffer most during periods of nationwide economic hardship. We’ve chosen to fight wars to protect our liberty and long-term economy to ensure that our children would have liberty and prosperity, but those children now seem willing to throw much of that away due to this disease. I don’t think most have any conception of the potential long-term implications of our massive debt spending. Having said all that, I chose to get vaccinated even though I didn’t think it necessary since I got COVID in Nov. of 2020 with minimal symptoms but I also travel for business and didn’t want to be hassled about my vaccination status and I wasn’t seriously concerned about the vaccine hurting me either. Data suggests strongly that I was largely protected with antibodies going forward even without the vaccine. Data also suggests that getting at least the first of the two shot regimen serves as a helpful “booster” to the immune system for those previously infected. On the other hand, people like me who choose not to live in fear and mingle freely (though respectfully distance from anyone who may have concerns, and I mask-up in any institution that asks me to, and just avoid those that ask if I can) has almost certainly been re-exposed many times and thus I’m keeping my antibodies up. On the other, other hand, I’m more careful about my 87 year old mother because the data says she is more at risk (though in her case she has an amazing immune system that has resulted in her rarely being sick at all in her life, which I did NOT inherit). So, I don’t think anyone should be forced to get vaccinated because there are good reasons not to bother, but I also think there is enough evidence to suggest that the vaccines are unlikely to hurt you and may help you. But, pertinent to this article, there is evidence that for younger people in their 20s and younger the risk of the vaccine may be equal to or possibly greater than the disease itself. So, that’s the problem, we’d likely all agree more if the disease were either less deadly, or much more deadly, but since it is in between, we fight over it.

  9. These kids are hell bent on making those of us who did the right thing and got vaccinated have to endure another year of school with tons of restrictions. They already brought masks back because of these idiots – we don’t need more restrictions.

    And their arguments are weak. The vaccine rule was already nuked by our joke of a state legislature. The lawyer of these kids is just getting rich off this nonsense.

  10. Claiming religious exemption is a total joke – no major denomination has a ban on vaccines in their position. In fact, most churches describe vaccines “as a gift from God to be used with gratitude” and encourage vaccination for the greater good of their fellow man.

    1. Christian Scientists and some Amish prefer to leave their health in the hands of their god.

  11. I must say I am quite surprised by the vaccinated community. Either you have confidence the “vaccine” is all that it says it is and have no fear of the unvaccinated. Or you fear that the bill of goods you have been sold in not effective and you fear the
    unvaccinated will get the virus and transmit it to you.

    What is completely left out of the equation is; Why would you mess with perfectly health immune system, that has great T cell and wards of bacteria’, virus and disease of all types as designed.

    Taking an mRNA vaccine and altering perfectly health immune system may invite more long term issue than we are aware. There have been no 5 year-10 year studies performed to understand the long term effects.

    I must say I commend the youth of America to stand up for there principles and what they believe is right. US citizens have become to complacent and apathetic to stand up for what they believe and have a go along to get along attitude.

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