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.