Anti-vaxxers and anti-mask people are loud and wrong all the time. It’s a devastating combination. They’ve got an entire white-wing media echo-sphere that amplifies their wrong ideas. They have social media algorithms that elevate their ignorance and misinformation, such that even calling them out boosts their uninformed or willfully false takes.
Moreover, the sheer breadth of things they are wrong about is dizzying. The vaccine has been blamed for everything from causing new Covid-19 variants (it doesn’t) to granting people the power to control metal, like Magneto (I wish). The lies mutate and evolve even faster than SARS-CoV-2, making it hard to keep up with whatever ignorance is being promoted—and functionally impossible to combat the misinformation in real time.
But there is one particularly bad take that gets repeated by everybody from Republican members of Congress to some guy from high school you haven’t yet blocked on Facebook: that it is unconstitutional for public or even private institutions and businesses to mandate that people get the vaccine or wear masks before entering establishments. To back these claims, the anti-vaccine brigade has cited everything from HIPAA (the medical privacy act) to “the Bill of Rights,” as if declaiming ignorance will give them street cred in the ICU.
People who think they can’t be required to get vaccinated before, say, going to school or flying on a plane are flatly wrong, but there is just enough nuance here to create a gray area that bad-faith actors exploit on social media.
Most people, at least the ones who aren’t watching Fox or Newsmax, can understand that private businesses can require vaccinations or mandate mask usage as they please. Private businesses are allowed to set health and safety regulations before allowing entry or delivery of services. Businesses should just update their signs to read: “No shirt, no shoes, no mask, no service” and be done with it.
The private sector has the authority, if not the will, to mandate vaccinations. Government institutions, like public schools or universities, are more limited in what they can require in the name of public health. But they’re not powerless. The government has more authority to require vaccinations than Twitter lawyers think.
It would be unconstitutional for the government to hold people down and force them to get the vaccine. That derives from the right to privacy (ironically, a right that most of the people screaming about their freedoms don’t extend to women who become pregnant). The government is not going to send out goon squads to inject things into people’s bodies.
It would also likely be unconstitutional for the government to require vaccinations before people could access some fundamental right. People couldn’t be required to show proof of vaccination before, say, voting in an election, or being allowed to speak to a lawyer after an arrest. The current conservative Supreme Court has also made it pretty clear that it doesn’t think people can be required to engage in minimal public safety measures to go to church.
But absent those very few fundamental rights, the government, public-private entities, and of course strictly private businesses are free to impose all sorts of socially beneficial restrictions—including basic public health and safety measures—before people access institutions or avail themselves of services. Airlines can deny passage to people who won’t show proper identification. Restaurants can deny business to those who refuse to wear a shirt or shoes or both. And public schools can send home students who become ill during the day. The power of these institutions to impose those restrictions is the same power they can use to impose vaccine or mask requirements.
Public schools are a particular inflection point for vaccine requirements, because we know that they have, historically, been a great way to pressure the general public to get vaccinated—against measles, mumps, tetanus, diphtheria. and all kinds of other nasty yet preventable illnesses. Yet there are parents who have a strong preference for subjecting their children to their political agenda and leaving them exposed to a virus. And so, we fight.
Still, rest assured, institutions of public education can demand that students are vaccinated against Covid-19. And they can demand that students who are unable to be vaccinated wear a mask. Don’t take my word for it, though. Listen to this three-judge panel of Republican-appointed judges (including two Trump judges) on the Court of Appeals for the Seventh Circuit that just unequivocally said the same thing.
The case is called Klassen v. Trustees of Indiana University, and it involves eight IU students who objected to the school’s vaccination mandate for this fall. IU says that students have to be vaccinated unless they have a medical or religious exemption. If they have an exemption, they have to wear a mask while on campus.
The students sued and were turned away by US District Court Judge Damon Leitchy (also a Trump appointee), in a 101-page opinion of pure legal smackdown. The students appealed to the Seventh Circuit, and there Frank Easterbrook (a Reagan appointee) wrote a unanimous opinion that is enjoyable for its legal clarity. He writes: “Vaccination is instead a condition of attending Indiana University. People who do not want to be vaccinated may go elsewhere.… Plaintiffs have ample educational opportunities.”
As a famous Hoosier once said: Boom goes the dynamite.
There is no question that IU has the right to mandate vaccinations, and I believe that this decision will be durable even though the students vow to take their case all the way to the Supreme Court. That’s because the IU mandate explicitly provides for religious exceptions. Indeed, six of the eight students suing IU are already eligible for religious exemptions from the vaccine; all they have to do is wear a mask.
The current Supreme Court might well turn out to be one of the most theocratic we’ve ever had in this country, and certainly its early Covid-19 opinions have so far given short shrift to legitimate secular concerns about health and safety in favor of people who argue that their God orders them to get other people sick. But I’m going to go out on a limb and predict that there are at least five justices on the Supreme Court who will accept the IU mandate as a reasonable accommodation for political agendas disguised as religious adherence, and allow common sense and public health to win the day.
Whether this decision can be easily applied to K-12 schools is a little more complicated. Public K-12 schools clearly have the authority to require vaccinations (once again, see measles, mumps, and rubella). They clearly have the right to exclude sick students (see chicken pox or mononucleosis). But because K-12 education is largely compulsory, the government must tread lightly.
Still, K-12 schools have been mandating vaccinations for a long time now, and I doubt that the Supreme Court will want to undo all of that and set the legal groundwork for the return of smallpox. I’ll expect a 7-2 decision, if the court agrees to hear such a case at all, with only Clarence Thomas and Samuel Alito sticking to a hard line of “the Founders thought public health could only be achieved through a combination of piety and leeches, and so must we treat our Constitution as a suicide pact.”
A Trump judge on the district court said that public universities can mandate vaccinations. Respected Reagan appointee Easterbrook and two other Trump judges said that schools can mandate vaccinations. The next time some MAGA uncle screams about “Mah liburtee!” just quote some actual conservatives at them and hit the mute button. The anti-vaxxers are wrong about the law, and always have been.