Alexis Keenan· August 9, 2021
Major employers and universities across the U.S. have comfortably relied on legal precedent that supports mandating a COVID-19 vaccine for workers and students. However, when New York City becomes the first government in the country to ban unvaccinated people from indoor restaurants, gyms, and entertainment venues, it opens up a new legal debate.
On Tuesday, New York City Mayor Bill de Blasio announced the plan, which will go into effect on Aug. 16. Legal experts told Yahoo Finance that the rule will test the authority of a 1905 Supreme Court case that gave states a broad yet still limited right to uphold compulsory vaccination laws.
“We should all keep in mind that the court’s jurisprudence is still unsettled,” Jim Oleske, professor at Lewis & Clark Law School, told Yahoo Finance. “I think that no matter what [New York City’s] final rule looks like…it’s going to get challenged.”
Vaccine mandates still unsettled law
While the New York City rule is scheduled to go into effect on Aug. 16, enforcement will begin Sept. 13 and will be up to the city’s health department rather than the city’s police force.
When announcing the rule, de Blasio said, “This is going to be a requirement. The only way to patronize these establishments indoors, will be, if you’re vaccinated — at least one dose. The same for folks in terms of work — they’ll need at least one dose.”
Legal scholars and practitioners say that while there’s a strong foundation for states and local governments to adopt and enforce their own vaccination policies, the foundation isn’t unshakable.
The coming challenges are expected to raise some of the arguments already brought against COVID-19 mandates in lawsuits across the country, and ultimately force courts to grapple with the 1905 Supreme Court decision, Jacobson v. Massachusetts. In Jacobson, the court said that states, under their police power, could require the smallpox vaccine.
“Jacobson is an old case, and how much force it will have, I think it depends,” Oleske said.
Most ripe for debate, Oleske said, is whether state and local governments need to provide exceptions to mandatory vaccination policies — either to protect the constitutional right to the free exercise of religion, or to protect the constitutional right under the Due Process clause to remain free from bodily interference.
University of California Hastings College of Law professor Dorit Rubinstein Reiss said another unsettled question is whether such government mandates are legal while inoculations remain under Emergency Use Authorization. Dr. Anthony Fauci told USA Today’s editorial board on Friday that there will be a “flood” of vaccine mandates at schools and businesses after the vaccines receive full FDA approval.
She also expects debate over the Americans with Disabilities Act (ADA) and whether it overrides a vaccine policy like New York City’s, given that for places open to the public, like restaurants, fitness venues and entertainment spaces, it generally requires accommodations for people with disabilities.
“Those who cannot be vaccinated should not be punished for it,” Reiss said. “I would be surprised if [New York City’s] law did not include an exception.”
While the CDC does not cite specific disabilities known to preclude people from getting a vaccine, the agency notes that some people may be allergic to ingredients in the COVID-19 vaccines. The agency also acknowledges it has limited or no vaccine safety data on individuals with certain underlying medical conditions, citing people with weakened immune systems, and more specifically, autoimmune conditions. Ultimately, the CDC says it recommends COVID-19 vaccination for “most people” with underlying medical conditions, especially those whose condition puts them at higher risk of severe infection.
Although the ADA does not name all impairments that qualify as disabilities, it does recognize HIV, specifically. The agency defines a person with a disability as “a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.”
Prior decisions will shape vaccine law
Several COVID-19 era cases have begun to establish rules amid the pandemic’s uncharted legal waters.
In April, the Supreme Court rejected California’s restriction on private gatherings because it didn’t exempt religious gatherings. The case exemplifies how much deference the court has been willing to give to those who challenge the validity of a state law aimed at protecting public health, based on religious grounds. In its decision, the court pointed out that the case marked the fifth time it had rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise.
A federal district court decision in Texas that dealt with a private employer mandate, rather than one issued by the government, could also have bearing on how courts handle complaints that vaccines have yet to receive full FDA approval. The Texas court dismissed claims of hospital employees who argued that because of the attenuated approval of vaccines, their employers’ mandate forced them to either lose their jobs or unwillingly participate in a medical experiment. The case is unique in that it upheld an employer’s rule despite no accommodation for workers who raised objections based on disability.
In another decision, handed down in August, the U.S. Court of Appeals for the Seventh Circuit upheld Indiana University’s right to require student vaccinations for those on campus, reasoning that students could choose to remain unvaccinated and not attend, or another school.
Not necessary to go to a restaurant
Bill Gordon, a lawyer for King & Spalding who advises companies and individuals on state and local government rules, speculates that New York City may not be legally required to offer exceptions, specifically if its vaccination mandate is limited to restaurants, gyms, and entertainment venues.
“Like the Indiana case (which said students could choose not to attend the University), the argument will be that it’s not necessary to go to a restaurant, and it’s not necessary to go to a movie theater,” he explained. “That being said, it’s possible that they will have had some limited exceptions.”
Gordon added that if the legality of New York City’s mandate were to be challenged in federal court, the analysis would probably look slightly different than the one in Jacobson.
“Courts would likely use the rational basis test,” Gordon said, referring to a minimum standard that requires governments to show that a law or ordinance is “rationally related” to a legitimate government interest. In 1905, the court required the ordinance to be “reasonable.”
Rubinstein Reiss said at a minimum, under either standard, when a government seeks to make vaccination mandatory, she expects a medical exception to be a legal must.
“In terms of medical exemptions, Jacobson implied or strongly suggested that you may be required to give a medical exemption,” Reiss said, emphasizing that the case left the door open for debate because it didn’t deal directly with the question.
Religious exemptions are key
Beyond that, Oleske and Reiss say state and local vaccine mandates are likely going to need to include exceptions for those who decline vaccination on religious grounds.
“If it does not include religious exemptions, there will almost certainly be constitutional claims brought under the Free Exercise Clause,” Oleske said.
On more shaky ground, he said, will be any challenges claiming a general right to bodily integrity under the constitution’s Due Process clause, which has been invoked in abortion and right to die cases.
“On that front, it’s going to be very hard because the precedent from the Supreme Court has decided that issue, albeit in 1905,” Oleske said.
Another issue that could open the door to legal challenges is how New York City goes about enforcing and penalizing its ban. City officials have yet to explain how they intend to enforce the rule or punish those who violate it. However, already settled in Jacobson was the state’s right to impose a fine. The plaintiff who declined vaccination was fined $5, today’s equivalent of approximately $150.