Vaccine mandates at higher education officially have landed at the U.S. Supreme Court.
The eight college students who lost their fight to try to get Indiana University’s COVID-19 vaccine mandate reversed in lower courts, have filed an emergency appeal to the highest court in the land hoping for a different outcome.
The students, represented by attorney James Bopp, claim the requirement that Indiana instituted on May 21 violates their 14th Amendment rights and that none of the vaccines has received a benchmark of full approval from the U.S. Food and Drug Administration.
“All students are adults, are entitled to make their own medical treatment decisions, and have a constitutional right to bodily integrity, autonomy, and of medical treatment choice in the context of a vaccination mandate,” the legal team on behalf of students wrote in a filing to the court. “IU, however, is treating its students as children who cannot be trusted to make mature decisions.”
The filing claims Indiana’s mandate is contrary to:
- FDA Emergency Use Authorization
- Modern Medical Ethics
- CDC recommendations (no requirement for vaccines)
- Indiana State requirements (no mask, vaccine or testing requirement)
- Other Indiana public universities that don’t have a vaccine mandate
In a previous ruling from the U.S. Court of Appeals for the 7th Circuit upheld on July 19, judge Damon Leichty denied the students’ claim in a 100-page opinion. He wrote that the university could implement a mandatory vaccine program in the interest of the safety and health of its community and that it didn’t infringe on students’ rights. He cited a case involving smallpox that the Supreme Court weighed in on in 1905 in which states could require vaccines of citizens. He also took it a step further.
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“The university isn’t forcing the students to undergo injections,” Leichty wrote. “The students aren’t being forced to take the vaccination against their will; they can go to college elsewhere or forego college altogether. If this case were merely that, merely the right to attend university, this state action wouldn’t trample on their rights. There is no fundamental or constitutional right to a college education, much less one at a particular institution.”
In its mandate, Indiana University also has offered that students who have medical, religious or ethical concerns can apply for an exemption and not be subject to the vaccine requirement.
However, the Bopp Law firm sent a 31-page emergency application for writ of injunction to Associate Justice Amy Coney Barrett on Friday, saying that the lower courts “errorenously failed to prove” that IU’s mandate was justified. It said IU’s mandate was unconstitutional and that it infringed on individual rights. It claimed Indiana’s “interest in public health and safety is not enough” to meet that justification, saying that college-age students are at “very low risk of adverse effects of a COVID infection.” The application also said students have suffered irreparable harm during the process.
“Students have shown that the balance of harm tips in their favor, where their constitutional rights are being violated,” the application states. “In contrast, IU cannot show that it will be harmed, as the risk of COVID has significantly declined and a significant portion of IU’s population is already vaccinated. Moreover, anyone that wants to be vaccinated can do so, free of charge, so Students decision to not vaccinate does not harm others.”
Since Leichty’s ruling, Indiana’s 7-day average of positive COVID-19 cases have nearly tripled to more than 1,400, the most since mid-February. Spurred by the more contagious Delta variant, the vast majority of Indiana’s counties are considered by the Centers for Disease Control and Prevention to be in the high risk category. The CDC said last week that the largest increase in hospitalizations is occurring among those ages 18-49.
Those data have prompted higher ed leaders from across the country to either impose vaccine mandates, press for students to get vaccinated or to impose mask mandates, even in parts of the country such as the Deep South that previously have been resistant to requirements. More than 650 colleges and universities have vaccine mandates, but more than 3,000 don’t, many simply encouraging populations to get them, even as numbers of cases rise within their communities.
