Our recent post, The Biggest Religious Exemption Case You Probably Don’t Know About (But Definitely Should) garnered a lot of attention. In it we explained why our petition to restore religious exemptions to vaccinations for schoolchildren in Connecticut, currently pending before the U.S. Supreme Court, may be the most significant medical and religious freedom case of our lifetimes. While the responses were overwhelmingly enthusiastic and supportive, we did receive one question that inevitably surfaces any time we discuss our religious exemption litigation: Why not challenge the vaccine mandate itself? Aren’t mandates an unconstitutional overreach of government power?
Not according to the U.S. Supreme Court. As we explained in that religious exemption post, since 1905 the Supreme Court has consistently ruled that the state can lawfully mandate vaccinations through the exercise of its police power. See Jacobson v. Massachusetts, 197 U.S. 11 (1905). Although that ruling has been challenged numerous times in the decades following its publication, the Court has never wavered from this position - even going so far as to say (horrifically) that the police power described in Jacobson also allows the state to forcibly sterilize a “feeble-minded” woman in Buck v. Bell, 274 U.S. 200 (1927). In that nearly unanimous (8-1) majority opinion, Justice Oliver Wendell Holmes, Jr. infamously wrote: “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11. Three generations of imbeciles are enough.”
But surely we live in a more enlightened age. Surely Buck v. Bell has long since been overruled. Nope. And the Court has reaffirmed the police power doctrine of Jacobson again and again in the nearly 120 years that have elapsed since it was first established, most famously perhaps in Zucht v. King 260 U.S. 174 (1922) and Prince v. Massachusetts, 321 U.S. 158 (1944). Zucht was just the sort of case that some have urged us to bring now, as it involved a student who challenged a school vaccination mandate itself as unconstitutional. But the Court relied on Jacobson to uphold the mandate as a Constitutional exercise of the state’s police power, ruling that a school vaccination mandate does not constitute a deprivation of liberty without due process of law in violation of the Fourteenth Amendment, even when there is no public health emergency. Prince didn’t involve a vaccine mandate, but the Court cited Jacobson in ruling that the state’s police power authorized it to place restrictions on the activities of children (in that case, through child labor laws), dealing a substantial blow to parental rights. Given this sterling precedent, lower federal courts have also continued to deny direct challenges to vaccine mandates. See, e.g., Phillips v. City of New York, 775 F.3d 538 (2nd Cir. 2015), cert. denied, 136 S. Ct. 104 (2015) (upholding New York’s school vaccination mandate as a Constitutional exercise of police power).
What about the Biden Administration’s OSHA mandate requiring workers at companies with more than 100 employees to receive the covid shot? Didn’t the Court strike that down as unconstitutional in January 2022? Yes, and no. The Court didn’t say that the government could not mandate vaccinations in National Federation of Independent Business, et al. v. Department of Labor, Occupational Safety and Health Administration, et al., 595 U. S. ____ (2022). Instead, the Court ruled that the Occupational Safety and Health Administration (OSHA) exceeded the authority granted to it by Congress to regulate workplace health and safety. In other words, as an administrative agency, OSHA can only make rules and regulations regarding things that are restricted to the workplace, not issue broad public health edicts. So this was a case about administrative authority, not the state’s police power. The Court never even mentioned Jacobson, because it was irrelevant. This wasn’t a challenge to the government’s power to compel vaccination; it was a challenge to the specific authority of one government agency. The Court didn’t say the government couldn’t mandate vaccinations; it only said that OSHA couldn’t do it. To underscore this point, on the very same day the Court struck down the OSHA mandate, it upheld Biden’s Centers for Medicare and Medicaid Services (CMS) mandate requiring healthcare workers at federally-funded facilities to receive the covid shot.
And let’s not forget the landmark 2022 decision of Dobbs v. Jackson Women’s Health Organization, which finally established that the U.S. Constitution contains no “privacy” right over one’s body. If there is no right to bodily autonomy in the Constitution, how could any lawyer worth his or her salt reasonably file a lawsuit asserting that the state violates the Constitution when it disrespects or disregards our bodily autonomy? Where in the Constitution does it state that the government cannot mandate medical treatments, procedures, or devices? Don’t misunderstand us here - we wish that such a provision existed. The government should have no right to compel anyone to put something in your body. But, absent a Constitutional amendment, we just don’t see a path to victory forged by that argument in Constitutional law as it stands in 2024.
So, in the face of this seemingly overwhelming precedent, where does that leave us? Well, we can continue to protest vaccination mandates, of course, and we encourage everyone to peacefully exercise their First Amendment rights of free speech and assembly. But as we’ve seen in states like California, New York, Maine, and Connecticut (where roughly 7,000 people gathered to protest the repeal of the religious exemption in April 2021), this does little to thwart the machinations of legislators that are hell-bent on removing any exceptions to medical mandates. And when these laws are inevitably passed, we are left to return to the judicial system for redress. Many who oppose vaccinations have a sincere religious basis for doing so, such as the use of aborted fetal cells in the testing and/or production of the vaccines, or the inclusion of certain animal cells as ingredients in the vaccines. Religious freedom is firmly enshrined in the First Amendment to the U.S. Constitution (as well as other federal and state laws), and the jurisprudence upholding that sacred right stretches back to the earliest days of our nation’s history. Very recently, the U.S. Supreme Court has issued landmark decisions siding with religious freedom, such as 303 Creative LLC et al. v. Elenis et al. in 2023 (ruling that the State of Colorado cannot force a web designer to create wedding websites containing designs and messages with which the designer disagrees, such as gay weddings), Kennedy v. Bremerton School District in 2022 (ruling in favor of a high school football coach who was fired for praying on the field after games), and Carson v. Makin in 2022 (ruling that Maine’s tuition assistance program that excluded religious schools was unconstitutional religious discrimination).
Against this backdrop, we feel it would be tremendously foolish to opt for a direct challenge to the state’s police power to mandate vaccinations instead of a challenge to the state’s removal of the religious exemption to vaccinations. Not only would such a challenge be destined to fail, it would not adequately represent the interests of the three parents who bravely stepped forward to be named plaintiffs in our lawsuit challenging Connecticut’s repeal of the religious exemption, currently pending review by the U.S. Supreme Court on a petition for certiorari. Each of our plaintiffs are strong people of faith - albeit three distinct faiths - who firmly believe that vaccinating their children would constitute a betrayal of God, and a denial of their faiths.
Asserting a religious exemption isn’t, as some have suggested to us, a “cop out” or an acquiescence to government mandates. It’s called living in reality. Of course any parent enrolling a child at a school in California, New York, Maine, or Connecticut today can refuse to provide evidence of state-mandated vaccinations on the ground that he or she objects to government mandates. And when the school refuses to enroll the student, the parent can file a lawsuit, alleging that mandates are unconstitutional. And when the lawsuit is forthwith dismissed by the court under Jacobson and its progeny, and all appeals are denied on the same basis, the parent will be left to either leave the state, or homeschool.
So why not challenge vaccine mandates themselves? The answer could have been summed up with one sentence, really: Because we don’t like to lose. We’re in it to win it. We would have likely gained a lot more supporters (and donors) if we’d promised to have all medical mandates stricken down by the courts. But we don’t make promises we can’t keep, and that is a victory we knew we couldn’t deliver. What we can promise is that we will continue to fight for your Constitutional rights and individual liberties every day, using sound and calculated legal strategies argued by the best and brightest lawyers in the country. If you’d like to be a part of that effort, please consider supporting us by making a gift to We The Patriots USA today.
J vs. Mass mandated to the small pox vaccine or pay a fine. He paid $5 I believe. And I thought there was a statement in their about deadly. Most of the “vaccine preventable diseases” are not deadly.