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Is the Supreme Court shifting its stance on a COVID vaccine mandate?

Pfizer Vaccine
Posted at 5:52 PM, Jan 28, 2021
and last updated 2021-01-28 21:34:51-05

SAN DIEGO (KGTV) -- Around the world, governments are wrestling with the question of whether to make the COVID-19 vaccines mandatory.

With more than 220,000 deaths from the virus in Brazil, the state of São Paulo announced last month it will require vaccination against SARS-CoV-2. The Brazilian supreme court ruled such a mandate is legal and individuals who refuse immunization can be penalized.

Legal scholars say state governments in the U.S. have the authority to enact similar vaccine mandates, but there are new questions emerging about how sweeping those requirements could be after a recent ruling by the Supreme Court.

RELATED: States have authority to fine or jail people who refuse coronavirus vaccine, attorney says

In particular, states may have to tread lightly around the issue of religious exemptions to a mandated vaccine, according to Wendy E. Parmet, director of Northeastern University’s Center for Health Policy and Law.

“We don't know where the Court will finally settle on this, but it's worth noting that once-settled issues are now potentially uncertain,” she said.

The Supreme Court appears to have undergone a “dramatic shift” in its stance on religious liberty during the pandemic, Parmet said, a shift that took place after the addition of Justice Amy Coney Barrett.

In an article published in the New England Journal of Medicine, Parmet charted out how the Court twice sided with the authority of state governments to impose COVID restrictions over the objections of religious institutions in rulings in May and July.

Those decisions were issued while Justice Ruth Bader Ginsburg was still on the bench.

But after Ginsburg’s death and the appointment of Coney Barrett, the Supreme Court issued a November decision in Roman Catholic Diocese of Brooklyn v. Cuomo that took a more expansive view of religious liberty and religious discrimination, Parmet said. The court applied a high legal standard to the state’s pandemic restrictions called “strict scrutiny.”

One concurring opinion in that case by Justice Neil Gorsuch took aim at a 1905 decision called Jacobson v. Massachusetts that has been the bedrock of vaccine mandates for over a century. Gorsuch characterized the often-cited Jacobson case as a “modest” decision.

“We don't know where this is going,” Parmet said. “But we see that Jacobson, which is the foundational case that courts have relied upon for upholding vaccine mandates, its breath, its importance, its precedential value is now in question.”

Legal experts say states seeking to implement a vaccine mandate would need to offer individuals an exemption for legitimate medical risks, like pregnancy. But states that offer medical exemptions without religious exemptions might expose themselves to a discrimination lawsuit after the Roman Catholic Diocese case and other decisions, Parmet said.

Religious exemptions led to such a decline in school vaccination rates in California that state lawmakers banned all non-medical exemptions in 2016.