The 7th Circuit Court of Appeals could soon decide whether to enjoin Indiana University’s COVID-19 vaccine mandate as the students challenging the mandate continue to argue it’s unconstitutional.
The group of eight IU students has asked the Chicago-based 7th Circuit to rule on a motion for an injunction against the vaccine mandate by Saturday. They argue the mandate infringes on their rights under the 14th Amendment to bodily integrity and autonomy and to medical treatment choice.
The plaintiffs unsuccessfully sought an injunction from the Indiana Northern District Court, then unsuccessfully requested a stay of the Northern District Court’s order pending appeal. That’s when they asked the 7th Circuit for an injunction, which the Bloomington-based university system is opposing.
The students filed a reply in support of their injunction motion Friday.
“IU audaciously relies on an extreme reading of Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), to claim plenary power over IU students, to protect the public against disease, by having nearly carte blanche to impose whatever is ‘currently the most effective way’ to prevent a disease,” the students, represented by The Bopp Law Firm in Terre Haute, wrote Friday. “This plenary power never ends, as IU contends both that ‘its application does not depend on the existence of a pandemic’ and, in any event, ‘[s]temming the tide of COVID-19 ‘is unquestionably a compelling governmental interest,’ ’ regardless of ‘the current circumstances of the COVID pandemic.”
The university is offering exemptions from the mandate for medical, religious and ethical reasons. Of the eight plaintiffs, six have received an exemption, one is eligible but has not asked and one is not eligible.
Students, faculty and staff granted an exemption must wear a mask, practice social distancing and participate in regular COVID testing.
The plaintiffs are faulting the district court for reviewing the vaccine mandate under a rational basis review rather than heightened intermediate or strict scrutiny. They say the court and IU are misapplying Jacobson and that the university should have to prove the mandate is constitutional.
“While unremarkably holding that ‘it is within the state’s police power to establish regulations implementing mandatory vaccine laws and vest local officials with enforcement authority[,]’ Jacobson recognized that such police powers could be exercised to violate the federal constitutional or statutory law, ‘in … an arbitrary, unreasonable manner,’ or in a way to go ‘beyond what [i]s reasonably required for the safety of the public.’ This left judicial review of the exercise of those police powers to subsequent courts,” the students wrote.
“If violations of constitutional rights occur in exercise of those powers, as here, then under Jacobson, the government needs to show the exercise passes constitutional muster,” they continued. “IU cannot do so here when the proper heightened constitutional scrutiny is applied.”
Strict scrutiny is the appropriate review of the mandate based on Sell v. United States, 539 U.S. 166 (2003), the plaintiffs claim, adding that the district court erred by not applying that case.
IU argued in its response in opposition to the injunction request that its mandate could pass even strict scrutiny, but the students disagreed. They cited data from Johns Hopkins University and the Centers for Disease Control and Prevention showing COVID mortality rates of less than 2% and argued that, even with the delta variant of the virus, “IU’s Mandate is not justified at this stage as applied to this age group.”
As of Friday afternoon, the Indiana Department of Health reported that 18.5% of statewide positive COVID cases were among those ages 20-29, the largest percentage of any age category. Hoosiers ages 18-19 made up 4% of positive cases, and those 30-39 made up 15.6%.
Indiana COVID deaths, however, continue to occur most often among those 80 and older. That age group comprised 50.5% of all COVID deaths in the state as of Friday, while those in the 0-19, 20-29 and 30-39 age groups each made up less than 1% of deaths.
The students also challenged IU’s vaccine exemptions, particularly the ethical exemption that was added after they filed their lawsuit. That exemption makes the mandate “woefully underinclusive and belies (IU’s) claimed interest in the Mandate,” they wrote.
“Accordingly, IU no longer has a compelling interest sufficient to justify its Mandate … ,” the plaintiffs said. “IU’s Mandate, therefore, fails strict scrutiny.”
The case is Klaasseen, et al. v. The Trustees of Indiana University, 21-2326.