IU students again challenging vaccine mandate at 7th Circuit

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A group of Indiana University students challenging the school’s COVID-19 vaccine mandate are seeking relief from the 7th Circuit Court of Appeals, arguing IU should have the burden to prove that the mandate is constitutional.

Led by Terre Haute lawyer James Bopp Jr., the group of eight students are arguing that the mandate violates their rights to bodily autonomy and integrity and to medical choice — fundamental rights they say can only be infringed if a heightened standard of scrunity is met. But the U.S. District Court for the Northern District of Indiana upheld the mandate under rational review, a ruling the IU students are now trying to overturn.

“All students are adults, are entitled to make their own medical treatment decisions, and have a constitutional right to bodily integrity and autonomy, and of medical treatment choice,” the students’ opening brief, filed Sept. 27, says. “IU, however, is treating its students as children who cannot be trusted to make mature decisions and has substituted itself for both the student and her attending physician, mandating a choice which is the student’s to make, based on her physician’s advice.”

IU implemented the vaccine mandate in May, allowing exceptions for religious or medical reasons. The school has since added an “ethical” exemption. Those who are granted an exemption must submit to regular testing. All students, faculty and staff, regardless of vaccination status, must wear a mask.

Of the eight students challenging the mandate, seven have received a religious exemption, while one does not qualify for an exemption. Three of the students also have medical reasons not to take the vaccine but would not qualify for the medical exemption, according to the brief. Two of the students deferred their enrollment until 2022, assuming the mandate is lifted.

The students moved for a preliminary injunction, which the Indiana Northern District Court denied in an exhaustive 101-page decision handed down in July. They also lost their initial appeal to the 7th Circuit,  as well as their motion for a stay of the mandate pending appeal.

The plaintiffs then asked U.S. Supreme Court Justice Amy Coney Barrett — circuit justice for the 7th Circuit — for a writ of injunction, which she denied. 

IU then filed a motion to dismiss the appeal, which the 7th Circuit denied.

In their opening brief, the students reiterated much the arguments they made in their initial filings.

Specifically, they argue the district court erred in applying Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), to consider the mandate under rational basis review. Instead, the students say the court should have applied heightened scrutiny — either intermediate or strict — under Sell v. United States, 539 U.S. 166 (2003).

Under heightened scrutiny, IU would have the burden of establishing that the mandate is constitutional — a burden the school could not meet, according to the plaintiffs.

“Under the proper standard of review, IU cannot prove that it has a compelling interest at this stage in the pandemic for this age group,” Bopp, of The Bopp Law Firm, wrote on behalf of the students. “Given the lack of serious danger COVID poses to college-age students, the relatively low hospitalization and death rates, even with the Delta variant, the IU Mandate is not justified as applied to this age group.

“Additionally, IU cannot prove that the IU Mandate would stop the spread of COVID and, in the alternative, lessening the risk of hospitalization and death from COVID for this age group is not a compelling interest, when severity of the infection for this age group is already minimal and deaths almost nonexistent.”

Data provided by the Indiana State Department of Health show that 3.8% of the state’s COVID cases are among those ages 18-19, while 17.9% are among those 20-29 — the largest portion of positive cases. Deaths among ages 0-29, however, are only 0.3% of the state’s total.

“… (T)his Court should find that heightened scrutiny applies to the IU Mandate since it violates Students’ constitutional rights to bodily integrity and autonomy and medical treatment choice, so that IU must prove that its Mandate is justified,” the students concluded. “Likewise, this Court should find that IU failed to prove that the IU Mandate is justified under heightened scrutiny. Finally, this Court should find that the IU Mandate is unconstitutional.”

The case is Klaassen, et al. v. The Trustees of Indiana University, 21-2326.

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