IU students ask 7th Circuit to enjoin vaccine mandate pending appeal

A group of Indiana University students challenging the school’s COVID-19 vaccine mandate is asking the 7th Circuit Court of Appeals to stay enforcement of the mandate after failing in their bid for relief from a lower court.

The IU students on Friday filed an emergency motion for an injunction pending their appeal of a lower court’s order upholding the school’s vaccine mandate. Earlier this month, the Indiana Northern District Court declined to issue an injunction against the mandate, then declined to stay its judgment.

The eight plaintiffs are now seeking relief at the 7th Circuit, arguing the Bloomington-based university system is infringing on their constitutional rights to bodily integrity and autonomy.

“Our Constitution has made it clear that IU, as a government institution, cannot limit an individual’s freedoms without sufficient justification,” plaintiffs’ attorney James Bopp Jr., of The Bopp Law Firm in Terre Haute, said in a news release. “Unfortunately, IU has chosen to ignore these constitutional principles and impose a Mandate that violates students’ rights without sufficient justification. In order to protect students, we have asked the Court of Appeals to prevent IU from enforcing its Mandate.”

The mandate requires students, faculty and staff to be vaccinated before coming onto IU campuses in the fall. Exceptions are in place for religious and medical reasons, or for students who are fully online. If an exception is granted, students must wear a mask, practice social distancing and participate in twice-weekly COVID testing.

Of the eight plaintiffs, six have received a religious exemption, one is eligible for a religious exemption but has not asked for it, and one is not eligible for an exemption.

The crux of the plaintiffs’ argument is that Indiana Northern District Judge Damon Leichty erred when he reviewed the school’s COVID vaccine mandate under rational basis scrutiny rather than strict scrutiny. They say IU should have to prove its vaccine and exemption requirements pass constitutional muster.

“All students are adults, are entitled to make their own medical treatment decisions, and have a constitutional right to bodily integrity and autonomy in the context of a vaccination mandate,” the motion for an injunction says. “IU, however, is treating its students as children who cannot be trusted to make mature choices 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.”

Leichty was not persuaded by a similar argument raised in the plaintiffs’ request for a stay pending appeal. In an order denying that request, he said staying his original ruling would “introduce() greater confusion, not less, as to a student’s obligation mere weeks before the fall semester begins in August 2021 … .”

“Only one student has an unexemptible choice; and given the low likelihood of success, she hasn’t shown her interest to outweigh the safety of some 90,000 students, 40,000 faculty and staff, or multiple campus communities. For these reasons, and those given by the court before, the interests align firmly against a stay of this policy pending appeal. The circumstances since Sunday haven’t turned materially to the better,” Leichty wrote in his July 21 order, referencing his July 18 ruling denying the injunction.

But the plaintiffs pointed to several cases they say support their position that the right to bodily integrity and autonomy must be reviewed under heightened scrutiny. Among the cases cited was the landmark abortion decision, Roe v. Wade.

Leichty, they argue, improperly relied on Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), to support his use of rational basis review.

But under strict scrutiny, the students continued, their arguments would prevail. They claim the COVID pandemic is in the final stage of “recovery,” lessening the government’s interest in mandating the vaccine.

“Mandating the vaccine for the younger, student age population, rather than those much older, is not narrowly tailored to protect public health and safety,” the motion says. “… Existing measures (including voluntary vaccination, masking, social distancing, sanitizing, and testing) have already gotten IU and Indiana to the CDC’s preparation phase, so continuing such measures, rather than a mandate, would be the least restrictive means of accomplishing IU’s goal.”

In Indiana, state health officials said Monday that hospitalizations had reached their highest level in roughly two months, according to the Indianapolis Business Journal. Also, 1,085 new COVID cases were reported in the state on Tuesday.

The plaintiffs seemingly acknowledged this uptick, writing in a footnote that “while day to day rises and falls will occur, and variants will emerge (which (the Centers for Disease Control and Prevention) model acknowledges), the overall trend line and current average rates relative to that overall trend line is what is relevant. Temporary spikes do not show a trend and are not relevant to determining whether the pandemic is declining as a whole.”

The 7th Circuit set a deadline of 5 p.m. Tuesday for the university to respond to the injunction motion. The plaintiffs can then file a reply by noon Friday. The students requested that relief be granted by Saturday.

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

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