Richard H. Hughes, IV, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, authored an article in HealthAffairs, titled “The Supreme Court and the Future of State Vaccine Requirements.”

Following is an excerpt:

After a 99-year hiatus, a global pandemic brought state vaccine mandates before the Supreme Court of the United States in its just-ended term. The case, Does v. Mills, came to the Court as an emergency request for an injunction through the Court’s “shadow docket,” and the Court considered the case only to the extent of denying the injunction request—the case was not fully briefed or argued before the Court as it would have been had the Court decided to review the case by granting certiorari. Nevertheless, the case offered some important insights into the thinking of Justice Neil Gorsuch on the balance between public health and religious liberty through an opinion Gorsuch wrote—on behalf of himself and Justices Clarence Thomas and Samuel Alito—dissenting from the Court’s refusal to grant the emergency injunction.

For more than 100 years, Jacobson v. Massachusetts (S. Ct. 1904) has stood for the proposition that state exercise of police powers to compel vaccination is not only lawful but may override liberty interests. In recent dissenting opinions in major COVID-19 vaccine cases before the Court, Justice Gorsuch has begun to suggest a stricter analysis, rooted in religious liberty arguments. His rationale would undermine the ability of states to enact broad public health policies, including vaccination, in both an emergency context and in more traditional efforts to prevent the spread of disease.

Challenges to vaccine mandates have been routinely waved off by courts. A simple citation to Jacobson, a showing of a legitimate state interest (preventing disease spread) and an affirmation that requiring vaccination is rationally related to accomplishing that interest, was all a state court needed to dispose of such cases. No case came close to reaching the Supreme Court until the pandemic put vaccines at the very center of public attention.

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