Aug 08, 2021 11:00 AM

KU Prof: Precedent in play in COVID challenge more than a century old

Posted Aug 08, 2021 11:00 AM

By NICK GOSNELL

Hutch Post

HUTCHINSON, Kan. — A long-time legal precedent regarding vaccinations could be challenged at the U.S. Supreme Court. A KU professor notes that Jacobson v. Massachusetts has been around for more than 100 years.

"The state of Massachusetts required that every adult be vaccinated against smallpox, on the pain of criminal sanction, you would go to jail," said KU Law professor Lumen "Lou" Mulligan. "The state of Massachusetts made no exception for a religious exemption or underlying medical condition. They just said, everybody has to be vaccinated, full stop. Mr. Jacobson protested. He claimed he had the Constitutional right to be free from a forced vaccination and the U.S. Supreme Court really had no problem saying, no, you don't."

Jacobson established a floor of constitutional protection that consists of 4 overlapping standards: necessity, reasonable means, proportionality, and harm avoidance. There are also First Amendment challenges on religious grounds that likely would have merit if a state decided to be overly draconian with the issue.

"There's no state or municipal government today, that I know of, that is pushing any kind of vaccine mandate that does not have some sort of religious exemption," Mulligan said. "For sincere religious beliefs, I don't take any vaccines at all, usually gets you an exemption, often coupled with things like the University of Indiana did, okay, you can do that, you have to be masked, you have to test, that sort of thing."

The states are given the police power and courts have traditionally given a lot of latitude to legislative bodies to make policy in this area, so it is important to remain engaged with all levels of elected officials as the COVID-19 situation continues to unfold.