Vaccine Mandate Opposition Has Limited Courtroom Success; Supreme Court May Weigh In Soon

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As more and more employers are requiring workers to be vaccinated against COVID-19, dozens of legal challenges to these mandates have begun to crop up.

Workers and advocacy groups have filed at least 39 federal cases this year that contest vaccination requirements imposed by governments or private employers. Courts have denied requests for temporary orders against mandates in 12 of the suits, while seven have ended with dismissals.

Teachers, airline workers, and military personnel, to name a few, have faced termination for not complying with their company’s COVID-19 vaccine mandates, and have gone to court to fight the decisions.

A total of 23 federal employees, who are a mix of military personnel, defense contractors and civilian contractors and technicians, are challenging the federal COVID-19 vaccine mandate in a federal lawsuit filed in Florida. 

The Florida lawsuit names U.S. President Joe Biden, Secretary of Defense Lloyd Austin and Secretary of Homeland Security Alejandro Mayorkas as defendants in the case.

The plaintiffs, being represented by The Liberty Counsel, a​​re suing to block the federal vaccine mandates on behalf of “themselves and all others similarly situated,” according to court documents filed on Friday, Oct. 15. 

On Oct. 15 The Liberty Counsel claimed that there are currently no FDA-approved COVID-19 shots available anywhere in the U.S., according to the court documents, in which their emergency motion for an injunction pending appeal was denied. 

“Every COVID shot in America remains under authorization of emergency use, which means people have the ‘option to accept or refuse’ them,” The Liberty Counsel said in its Oct. 15 release. 

The Pfizer COVID-19 vaccine was actually fully approved for use by the Food and Drug Administration on Aug. 23.

The lawsuit also argues that those in military service should not have to choose between dishonorable discharge or “sinning against God” by “violating their sincere religious beliefs” through forced vaccination.

Besides the Florida case, other groups that are suing over vaccine mandates include New York City Department of Education employees, a handful of Los Angeles County public employees and United Airlines workers. All argue their respective employers’ vaccine mandates should be removed, and some, like in the Florida suit, contend their religious rights are being violated.

Jennifer Piatt, Research Scholar at the Center for Public Health Law and Policy at the Sandra Day O’Connor College of Law, told Top Class Actions that arguments against vaccination mandates are largely failing because they can be justified under judicial review. 

“The only area where arguments have seen some success so far is with respect to religious freedom…those kinds of arguments have not universally succeeded,” Piatt told Top Class Actions.

Vaccine mandates are not new

The 1905 Supreme Court Case Jacobson v. Massachusetts held that state legislatures are allowed to issue vaccine mandates. 

Current federal law already requires military members to be vaccinated. The Department of Defense administers 17 vaccines to service members and has since 1995. 

There are more than 100 years of historical federal and state court precedents that may complicate the arguments against vaccination requirements in federal court, as well as previous cases involving military vaccine requirements.

A July 2021 ruling by the Department of Justice’s Office of Legal Counsel also gave businesses the legal backing to invoke a COVID-19 vaccine mandate for their employees.

Besides vaccine mandates for the military and some workplaces, school vaccination mandates have been around since the 19th century, and they became the law in all 50 states in 1983. 

Los Angeles, Sacramento, San Diego and Oakland are the first large school districts in the nation to mandate COVID vaccines for older students. Already, plaintiffs in San Diego and Los Angeles have sued districts over their COVID vaccine mandates.

About a third of parents nationally say they will not get their children vaccinated, according to a Kaiser Family Foundation survey. 

What grounds do plaintiffs have to oppose vaccine mandates?

Religious beliefs: The reasonable accommodations provision of the Civil Rights Act of 1964 requires employers to make special accommodations to employees, such as those based on religious beliefs. 

The Supreme Court precedent gives employers the power to deny those religious exceptions if they could cause more than a minimal burden.

Constitutional claims: These claims brought against companies have failed because private employers aren’t state actors, and they’ve also failed against public employers due to the high court’s Jacobson ruling.

“The overwhelming majority of courts to consider vaccine mandates have found them constitutionally sound,” indicated the court documents in the case of Kimberly Harsman vs. Cincinnati Children’s Hospital Medical Center.

Health and disability exemptions: Medical conditions or disabilities that could exempt people from receiving a COVID-19 vaccination might include allergic reactions to vaccinations, pregnancy conditions, or certain chronic illnesses or other disabilities. 

Individuals who already have had COVID-19 and who have claimed natural immunity medical exemption are not winning their cases either.  At least two courts have rejected that argument, noting that policies that require workers to get vaccinated are valid despite competing evidence on natural immunity versus the protection from vaccination.

Richard Epstein, a legal scholar and director of the Classical Liberal Institute at New York University, believes that soon the tide will shift away from mandating vaccines, partially due to people having natural immunity to the COVID virus after catching it.

“The overwhelming evidence on natural immunity is that it’s more effective than immunities obtained by the vaccine,” Epstein told Top Class Actions. 

The Centers for Disease Control and Prevention recently released a brief which found that both infection-induced and vaccine-induced immunity are durable for at least six months, but the COVID-19 vaccines are more consistent in their protection and offer a huge boost in antibodies for people previously infected.

What chance do plaintiffs have in winning cases against vaccine mandates?

“The chances of such proceedings succeeding are none. Zero. Nothing. One may as well sue the Pope in the courts of Vatican City, such are the odds,” Amir Attaran, a professor in both the Faculty of Law and the School of Epidemiology, Public Health and Community Medicine at the University of Ottawa told Top Class Actions. 

So far, the ​​arguments taken to court have not swayed judges, who have almost all ruled in favor of the employer. 

“I have reviewed at this point over 60 different cases where complaints have been filed. And out of those cases, I’ve seen 35 actual decisions made by courts. And out of those 35, 31 come out on the side of mandates. Only four of those cases I’ve actually seen come out for blocking mandates, and again, those are all involving religious freedoms. So the likelihood of success of cases challenging vaccine mandates is low,” Piatt told Top Class Actions.

Some law experts have different takes on the vaccine mandates being contested in court. 

“We’ve never seen a mandate used for something which was just put into the market on Monday and mandated on Tuesday,” Epstein told Top Class Actions. “At this point, it’s probably more likely than not that the mandates will be upheld, but I think the odds are moving rapidly or at least discernibly in the opposite direction.”

Epstein believes that soon mandates will lose their legal grounds, and will not be held up anymore, although this is not a popularly held belief. 

Piatt says we could potentially see the Supreme Court enter into this space at some point in the future, but as of the end of last month, the Supreme Court has declined.

In the 1944 case Prince v. Commonwealth of Massachusetts, the Supreme Court ruled that “the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”

In August, the Supreme Court denied review of Indiana University’s COVID-19 vaccine mandate for employees and students. 

If the Court were to consider a ruling on COVID-19 vaccine mandates, it would likely rule as it has done similarly in the past.

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