RYAN KLAASSEN et al., Plaintiffs, v. THE TRUSTEES OF INDIANA UNIVERSITY, Defendant.
CAUSE NO. 1:21-CV-238 DRL
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION
July 18, 2021
Under guiding principles of federalism, our Constitution preserves the power of the States, within constitutional limits, to adopt laws to provide for public health and safety. Twice the United States Supreme Court has upheld state authority to compel reasonable vaccinations. The States don‘t have arbitrary power, but they have discretion to act reasonably in protecting the public‘s health.
Students at Indiana University have a significant liberty protected by the Constitution—refusing unwanted medical treatment based on bodily autonomy. The Fourteenth Amendment says no state may “deprive any person of life, liberty, or property, without due process of law.”
Indiana University‘s policy has real implications. Students may be deprived of attending the university without being vaccinated or qualifying for an exemption. Still they have real options—taking the vaccine, applying for a religious exemption, applying for a medical exemption, applying for a medical deferral, taking a semester off, or attending another university or online. The policy applies for the fall 2021 semester only.
Eight students sued Indiana University because of its vaccination mandate and because of the extra requirements of masking, testing, and social distancing that apply to those who receive an exemption. They ask the court to enter a preliminary injunction—an extraordinary remedy that requires a strong showing that they will likely succeed on the merits of their claims, that they will sustain irreparable harm, and that the balance of harms and the public interest favor such a remedy.
The court now denies their motion. The Constitution and longstanding precedent should endure. Recognizing the students’ significant liberty to refuse unwanted medical treatment, the Fourteenth Amendment permits Indiana University to pursue a reasonable and due process of vaccination in the legitimate interest of public health for its students, faculty, and staff. Today, on this preliminary record, the university has done so for its campus communities. The students haven‘t established a likelihood of success on the merits of their Fourteenth Amendment claim or the many requirements that must precede the extraordinary remedy of a preliminary injunction.
FACTS
A. Parties.
Indiana University is a world-renowned public research university, with seven campuses, two regional centers, and three medical centers across the State of Indiana, providing education to over 90,000 undergraduate and graduate students and employment for over 40,000 employees [Ex. 116 ¶ 4]. The university, with its flagship campus in Bloomington, Indiana home to over 40,000 students, continually ranks as one of the top 100 universities in the country, and one of the top 150 universities in the world.
The eight students here have varied backgrounds. Jaime Carini (age 39) is a graduate student pursuing two doctorates in music, with but her examinations and dissertation to complete [Ex. 121 at 10, 19-20, 23]. She has received an exemption from the university‘s vaccination requirement already [id. 57-58].
Ashlee Morris (age 26) is an incoming first year law student at the McKinney School of Law who has worked hard for six years to get there to pursue her J.D. [Ex. 123 at 10, 66-67]. She too has received a religious exemption from the university‘s vaccination requirement [id. 44]. She testifies that she will not attend the law school if she must wear a mask or undergo surveillance testing [id. 66-67].
Seth Crowder (age unknown) is pursuing his MBA at the Kelley School of Business [Ex. 124 at 13]. He too has received a religious exemption from the university‘s vaccination requirement already [id. 9, 20-21]. He has not decided if he will return to school if he must wear a mask or undergo surveillance testing this fall semester [id. 42].
Ryan Klaassen (age 19) is an incoming sophomore at Indiana University studying biochemistry [Ex. 120 at 5, 15-17]. He has received a religious exemption to the university‘s vaccination requirement [id. 33]. He says he hasn‘t decided if he will return to Indiana University if the injunction is not granted. [id. 41-43].
Daniel Baumgartner (age 18) is an incoming freshman at Indiana University who plans to study business [Ex. 122 at 8, 12-13]. He has received a religious exemption to the university‘s vaccination requirement [id. 8]. He has not decided if he will go to Indiana University this fall if he must wear a mask or undergo surveillance testing [id. 41].
Margaret Roth (age unknown) is an incoming freshman at Indiana University and has already registered for classes [Ex. 126 at 9, 20]. She has a religious objection to the vaccine but has not requested an exemption, though she would qualify, because she prefers not to wear a mask or undergo testing [id. 45-47]. She says she will most likely not attend Indiana University if the injunction isn‘t granted [id. 9].
Natalie Sperazza (age unknown) is an incoming sophomore who will be taking five classes this fall [Ex. 127 at 11]. She has not applied for an exemption and believes she wouldn‘t qualify [id. 15-16]. She says she will not attend Indiana University this fall if the policy remains in place [id. 42]. She appears to be the only student without an exemption or basis for an exemption.
B. COVID-19.
COVID-19 is an infectious disease caused by the novel coronavirus. It primarily spreads through respiratory droplets, viral particles suspended in the air, and touching mucosal membranes with contaminated hands [Ex. 115 ¶ 6].1 The initial presentation of an infection ranges from no symptoms at all (asymptomatic) to severe illness and death; and even after recovery, various long-term health problems may linger [id. ¶ 8].2
Individuals with longstanding systemic health inequities or preexisting or immunocompromising conditions, and elderly individuals prove at greater risk of severe illness or hospitalization following an infection [id. ¶ 9].3 Children and young adults are less likely to experience serious illness or death from infection [Ex. 115 ¶ 10; Ex. 117 ¶ 21]. Though data from the Centers for Disease Control and Prevention (CDC) suggest that more young adults are becoming infected with the virus than other
Worldwide COVID-19 has infected almost 189 million people and caused 4 million deaths, with these numbers still changing daily.6 In the United States, the novel coronavirus has infected over 33.5 million citizens, losing to death over 600,000 [Ex. 115 ¶ 15]. Since March 6, 2020, Indiana has had over 750,000 confirmed COVID-19 cases and over 13,000 deaths [id. ¶ 14]. The COVID winter of 2020-2021 was particularly rough, until vaccines became options first in December 2020 and then in the early months of 2021.
As vaccination now increases, data gathered by the CDC point toward the waning of new COVID infections across the country—down from a peak of 312,325 new cases reported on January 8, 2021, with a seven-day average positive test rate of 13.85 percent, to 39,719 new cases reported on July 16, 2021, with a seven-day average positive test rate of 5.01 percent.7 The rate of new cases today is akin, if not greater, to the rate of new cases reported during the peak of the pandemic‘s first wave in the spring 2020, through the relative rate of positive tests thankfully remains much lower.8
Our nation has come a long way since the darker days of 2020 that tested many people, though some uncertainty persists even now in this 2021 summer. The current seven-day moving averages of new COVID-19 cases has increased by 69.3 percent in the past week alone; the positive test rate has increased by 40.7 percent; and new hospital admissions have increased by 35.8 percent.9 Recalling the bell curves we all have become accustomed to seeing, the trend still proves sharply down from the worse days of COVID-19, but virulent and highly transmissible variants of this coronavirus present new challenges [Ex. 115 ¶ 36]. As of July 3, 2021, the CDC
In Indiana, 561 new cases were reported on July 15, 2021; and the most recent data suggest a seven-day average positive test rate of 4.3 percent for unique individuals from July 3, 2021 to July 9, 2021, lower than the national average.11 Of all positive cases, 18.4 percent, the highest proportion of all age populations, comes from young adults aged 20-29.11 In Indiana, approximately 67.3 percent of all cases came from the Delta variant.12
Our country and our state have vastly improved, but challenges remain.
C. Indiana University Board of Trustees.
The Indiana General Assembly endows the Indiana University Board of Trustees with the responsibility to fulfill its powers and duties under the law.
Among these powers, the Trustees may govern “the conduct of the state educational institution“s students, faculty, and employees, wherever the conduct might occur, to prevent unlawful or objectionable acts that . . . violate the reasonable rules and standards of the [university] designed to protect the academic community from . . . a serious threat to person or property of the academic community.”
D. State Law on Vaccines.
Indiana requires all public university students to be vaccinated for diphtheria, tetanus, measles, mumps, rubella, and meningococcal disease before attending school.
Since this pandemic‘s advent, many states have considered bills that would prohibit either vaccine “mandates” or vaccine “passports.” For instance, just last week the State of Ohio passed a law banning public vaccine mandates. See 2021 Bill Text OH H.B. 244, Sec. 3792.04(B)(1) (signed July 14, 2021). Other states have more reservedly passed laws that would prohibit just having to show proof of COVID-19
E. Vaccine Guidance for Institutions of Higher Education.
Governmental agencies and collegiate associations have with one chorus promoted vaccination to address the COVID-19 pandemic, though they typically have remained silent on whether universities should mandate a vaccine. Today more than 500 colleges and universities have mandated vaccination, though many are private institutions of higher learning, not public universities.14
The CDC recommends that institutions of higher learning (IHEs) “can return to full capacity in-person learning, without requiring or recommending masking or physical distancing” only when “all students, faculty, and staff are fully vaccinated prior to the start of the semester.”15 The Indiana State Department of Health aligns with the CDC.16
Likewise citing the CDC, the United States Department of Education has said “IHEs where everyone is fully vaccinated can return to full capacity in-person learning without requiring or recommending masking, physical distancing, or screening testing.”17 The American College Health Association has recommended that institutions require COVID-19 vaccinations for all on-campus students for the fall semester.18
F. Indiana University‘s Vaccine Mandate.
Acting under state authority, see
The restart committee met regularly to review the university‘s campus population and experiences from the 2020-2021 year, as well as “guidelines from the CDC, IU Health, the ISDH, the Indiana Governor‘s Office, and the Central Indiana Corporate Partnership, among others,” “scientific literature and data, including COVID-19 case and hospitalization rates for Indiana,” and “input from other Indiana and out-of-state IHEs” [Ex. 116 ¶¶ 24-26]. The data considered by the restart committee were vast [Exs. 302-317, PowerPoint presentations from December 8, 2020 to April 6, 2021); see also Ex. 301 ¶ 2].
Four MDs from this committee presented near-weekly from December 2020 to June 2021 to Indiana University‘s Executive Academic Leadership Council, including the President and Executive Vice Presidents as part of the medical response team‘s ongoing COVID-19 evaluation efforts [Ex. 301 ¶ 4]. The Board of Trustees adopted the restart committee‘s recommendations for the 2021 fall semester [Ex. 116 ¶ 29].
The aim was short and strategic—vaccinate everyone, subject to certain exemptions [id. ¶ 31; Exs. 101, 300]. Initially, the policy required all students, faculty, and staff to submit proof of vaccination before returning to campus, but the university revised this requirement after Indiana passed its anti-passport law [Ex. 101]. The policy today requires all students, faculty, and staff to be fully vaccinated, which the university defines as being two weeks post the second dose of the Pfizer and Moderna vaccines, or two weeks post the single dose of the Johnson & Johnson vaccine, before returning to campus between August 1 to August 15 for the fall 2021 semester [Ex. 118 at 3, 5; see also Exs. 102-104].
The choice of foregoing vaccination is not inconsequential. If not vaccinated, students are not permitted on campus, their emails and university accounts are suspended, and their access cards are deactivated [Ex. 118 at 7]. Although it seems from argument that the university will not create an informant culture, it reserves the right to pursue disciplinary action should a student deceive the process. Faculty and staff who refuse vaccination face termination. The faculty councils from Indiana University—Bloomington and Indiana University-Purdue University Indianapolis and the staff council from Indiana University—Bloomington, have endorsed the policy, as has the graduate and professional student government [Ex. 116 ¶ 45-60].
The university‘s COVID-19 vaccine policy has exemptions. A student may request an exemption for religious reasons; provide proof from a physician of an allergy to the vaccine or one of its component parts (a medical exemption); provide proof from a physician of active pregnancy or breastfeeding, receiving a hematopoietic or solid organ transplant, receiving treatment with Rituximab within the past 3-6 months, or COVID-specific monoclonal antibodies19 in
For those who receive exemption from vaccination, the policy imposes additional safety requirements. These requirements apply to six of the eight students here who have received exemptions and potentially a seventh who qualifies for an exemption. Such students must participate in more frequent mitigation testing, quarantine if exposed to someone who has tested positive for COVID-19, wear a mask in public spaces, and return to their permanent address or quarantine if there is a serious outbreak of COVID-19 [Ex. 118 at 6].
G. Experts.
The parties have tendered declarations, supplemental declarations, and testimony from several experts, leaving to the court the task of deciding what weight to give to their opinions. Among the more than 100 exhibits admitted for this preliminary injunction motion, the experts and other materials refer to numerous medical studies and industry guidance on the risks of COVID-19 and the risks of the vaccines—where the parties in part have drawn the battle lines. The court has endeavored to be studious in reviewing at times a daunting record on this emergent timetable.
The university offers Dr. Cole Beeler, MD,20 and Dr. Aaron Carroll, MD, MS,21 and the students tender Dr. Peter McCullough, MD, MPH.22 All have credentials and opinions that exceed restatement here. Much of that treatment occurs later in this opinion as the court makes additional findings of fact and discusses its legal analysis. Though points of agreement occur at times, these experts largely disagree about the urgency of vaccination, particularly for often younger university students, the effects from natural COVID-19 infection, and the risks of the three emergency use approved vaccinations.
For the students, Dr. McCullough says the risks of COVID-19 to college age students in 2021 proves significantly lower than in 2020 because of the rapidly declining infection rate, increasing likelihood of herd immunity in Indiana, low risk of serious complications or death from COVID-19 in college-aged students, low risk of asymptomatic spread, and other posited COVID-19 treatments [Ex. 117 ¶ 73; see
For the university, Dr. Beeler says the COVID-19 vaccine mandate facilitates a “safe and reliable way to assure lack of spread of COVID” within the university‘s campus communities and “prevents morbidity and mortality” [Ex. 115 ¶ 87; see also Ex. 319]. He appreciates that, though COVID-19 often will not pose “disproportionate bad outcomes” in the university‘s constituency, “any bad outcome from COVID is potentially avoidable with the vaccines where the benefit dwarfs the potential rare risks,” and risks that “may not be causally linked” [Ex. 115 ¶ 87]. He recalls that “the vaccines used for COVID are based on technology that has been developed over decades and have repeatedly been shown to be safe when given to millions of patients” [id.]. He calls the vaccines “known science” applied to a “novel pathogen” with often “uncertain and threatening immediate and long-term consequences to [the university‘s] students, faculty, staff, and communities at large” [id.]. He says the risk of asymptomatic hosts puts others at risk [id.]. In support, Dr. Carroll marshals relevant industry, governmental, and university guidance and the relevant scrutiny the restart committee gave to it [Exs. 116, 301]. Dr. Beeler states his opinions to a reasonable degree of medical or professional certainty [Ex. 115 at 25; Ex. 319 at 8].
H. Emergency Use Authorization of Vaccines.
COVID-19 caught the world unaware. Initially, there were no vaccines or treatments, and testing was expensive and difficult to secure. Four days after the United States Department of Health and Human Services (HHS) declared a public health emergency, it issued a second declaration allowing the United States Food and Drug Administration (FDA) to grant emergency use authorizations (EUAs) for medical devices and interventions to combat the pandemic. 85 Fed. Reg. 7316, 7316-7317; 85 Fed. Reg. 18250, 18250-18251.
Despite creating an expedited pathway to distribute new medical products during emergencies, products that receive EUA approval still must adhere to specified safety, efficacy, and manufacturing criteria, and HHS must ensure medical providers and individuals are informed of the product‘s EUA status, the “significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are unknown;” and for individuals, of the option to refuse and the consequences of such a decision.
Not all EUAs are created equally. Because of the widespread use of a COVID-19 vaccine, the FDA informed manufacturers that it expected the same level of endpoint efficacy data as required for full approval, enough safety data to justify by clear and compelling evidence the vaccine‘s safety, and confirmation of the technical procedures and verification steps necessary to support full approval.27 In short, and as described in more detail below in this opinion‘s analysis, the FDA promulgated guidance that
enhanced the basis on which any COVID-19 vaccine would meet EUA approval. In setting these more stringent standards, the FDA invited EUA applications only for vaccines positioned well to receive full approval.28
I. COVID-19 Vaccines.
In the United States, three vaccines rushed to the front: two using mRNA technology and one using a viral vector [Ex. 115 ¶ 23-26]. Johnson & Johnson‘s vaccine is a viral vector vaccine (implementing technology since the 1970s) that
Having quickly adapted the existing technology, Moderna started testing the vaccine in humans in March 2020.31 Pfizer began clinical trials in late April 2020.32
By the time Pfizer applied for an EUA on November 20, 2020, their application included safety, immunogenicity, and efficacy data from over 40,000 study participants in ongoing phase I, II, and III, randomized, placebo-controlled, observer-blind, clinical trials conducted in the U.S., Argentina, Brazil, Germany, South Africa, and Turkey.33 A team of representatives from across the FDA, including experts in clinical review, toxicology, biostatistics, products, production facilities, pharmacovigilance, data integrity, bioresearch monitoring, and labeling reviewed the data submitted by Pfizer, and independently assessed the risks and benefits of the vaccine.34 The agency granted the EUA on December 11, 2020, noting that Pfizer “met the FDA‘s expectations as conveyed in [the agency‘s] June and October guidance documents.”35
Moderna applied for an EUA on November 30, 2020.36 Their application included safety, immunogenicity, and efficacy data from over 30,000 study participants in ongoing phase I, II, and III, randomized, stratified, observer-blind, placebo-controlled clinical trials conducted at 99 locations in the United States.37 A team of representatives from across the FDA, including experts in clinical review, toxicology, biostatistics, products, production facilities, pharmacovigilance, data integrity, bioresearch monitoring, and labeling, reviewed the data submitted by Moderna, and independently assessed the risks and benefits of the vaccine.38 The agency
Janssen, a Johnson & Johnson company, applied for an EUA on February 4, 2021.40 Their application included safety, immunogenicity, and efficacy data from five studies, including two randomized, double-blind, placebo-controlled phase III trials, enrolling over 70,000 participants.41 A team of representatives from across the FDA, including experts in clinical review, toxicology, biostatistics, products, production facilities,
pharmacovigilance, data integrity, bioresearch monitoring, and labeling, reviewed the data submitted by Johnson & Johnson, and independently assessed the risks and benefits of the vaccine.42 The FDA granted the EUA on February 27, 2021, noting that “the vaccine meets the FDA‘s expectations for safety and effectiveness appropriate for authorization of a vaccine for emergency use.”43
With these vaccines, an emerging light appeared at the end of the tunnel. As of July 17, 2021, 337,239,448 doses of vaccine have been administered, and 161 million Americans, or 48.5 percent of the total population, is fully vaccinated.44 Of adults over the age of eighteen, 59.4 percent are fully vaccinated.44 In Indiana, 5,749,173 doses have been administered, and 2,888,239 Hoosiers, or 49.6 percent of those over the age of twelve, are fully vaccinated.45 Of ages 18-24, who account for 9.2 percent of the U.S. population, 11,720,847, or 42.2 percent, are fully vaccinated.46 In Indiana, 164,098 individuals aged 20-24, or 34.7 percent, are fully vaccinated.47
J. Risks of Vaccines.
Though the vaccines show remarkable effectiveness against infection and severe cases of COVID-19, and “have undergone and will continue to undergo the most intensive safety monitoring in U.S. history,” they are not without risks, heretofore rare for serious risks [Ex. 115 ¶ 33].48 Many recipients experience mild local and systemic reactions, including fever, headache,
The medical community closely tracks adverse events from the vaccine in a national database called VAERS, or the Vaccine Adverse Event Reporting System.51 This database is used to track adverse events temporally related to all vaccine administration, including for the COVID-19 vaccines, but it is not a definitive or final resource to conclusively prove contraindications.52 “While very important in monitoring vaccine safety, VAERS reports alone cannot be used to determine if a vaccine caused or contributed to an adverse event or illness.”53 Nevertheless, the FDA considers VAERS data when assessing whether to make changes to any approval or to apply any additional warnings to vaccines.54 Based on this surveillance, reports of anaphylaxis appears to be rare, blood clotting concerns are rare but higher in women under the age of 50, myocarditis is rare but more common in young people, and reports of death are rare.55
The FDA has issued revisions to the patient and provider fact sheets about the risk of myocarditis and pericarditis acknowledging data about this risk.56 Furthermore, the FDA and CDC recommended a pause on the use of Johnson & Johnson‘s vaccine in light of reports of clotting in young women (a pause subsequently lifted).57 Recent changes last week
K. Herd Immunity.
Much has been said of herd immunity at the national and state levels. The university too wants to achieve herd immunity. Herd immunity occurs when a virus cannot spread because so many of the individuals it encounters are protected against infection [Ex. 117 ¶ 14-17; Ex. 115 ¶ 43-44].59 The students say we are there [Ex. 117 ¶ 14-17]. The university disagrees [Ex. 116 ¶ 43]. As more infectious variants emerge, some suggest the percent immunized must also increase to reach herd immunity [Ex. 115 ¶ 19-22].60 Like many aspects of the pandemic, the point at which society is able to conclude enough people have protection from the virus is still undetermined.
The character of immunity is also uncertain. As COVID-19 is a new disease, and the vaccines are even newer, the long-term efficacy of immunity derived from vaccination and infection is not proven [Ex. 117 ¶ 68-72; Ex. 115 ¶ 70].61 Immune responses appear to exist for at least several months following a COVID-19 infection [Ex. 117 ¶ 68-72; Ex. 319 ¶ 1].61 Dr. Beeler explains a recent study that suggests that vaccination after COVID-19 exposure secures more protection than just antibodies from prior contraction of the virus—in terms of duration and strength against the prevailing variants [Ex. 128 at 82].62
The parties disagree over the relative risk of college students spreading the virus to the community, with the students contending the risk is very low [see Ex. 117 ¶ 29-31], and the university contending the risk is real [see Ex. 115 ¶ 51-52]. There is no consensus on this issue, and some research has not been peer-reviewed.63 Nevertheless,
L. The Student‘s Objections.
The eight plaintiffs in this case, all students of Indiana University, don‘t want the vaccine. Six of the eight have received exemptions already. One would qualify if she applied. The other appears not to qualify for an exemption.
Ryan Klaassen is concerned that the vaccine is too new to be safe [Ex. 120 at 18]. He objects to the masking and testing requirements because of their unreasonableness and the potential for discrimination [id. 36]. He complied with the university‘s mask policy during his freshman year, including wearing a mask in most places, and has undergone many COVID-19 tests [id. 27].
Jaime Carini has up to seven more years to finish her joint dissertation after she finishes her exams [Ex. 121 at 23]. Her physician provided a letter saying she should not take the vaccine, though the letter has not been presented to the university or to the court [Ex. 121 at 52-53]. She applied for a religious exemption and received one [id. 57]. She did not apply for a medical exemption [Ex. 100 ¶ 187 (never applied for one); Ex. 121 at 60]. Despite wearing a mask in public spaces when required and previously taking several COVID-19 tests, she objects to the mask policy because it makes it difficult for her to breathe, she gets bad acne from the mask, and she struggles deadlifting with a mask [Ex. 121 at 44, 47-51]. She also doesn‘t like surrendering her biological information for testing [id. 55]. In total, she views the university‘s policy as a cultural harm [id. 55-56].
Daniel Baumgartner says he has a deeply held religious objection to wearing a mask and being tested. He wore a mask while attending religious services, in school, and at stores in the past [Ex. 122 at 8, 18-20]. He previously contracted COVID-19 and says he has “natural” COVID antibodies, though for how long he doesn‘t know [id. 21-22].
Ashlee Morris believes she previously contracted COVID-19 [Ex. 123 at 27-28]. She has been tested before and acknowledges that she did not suffer any lasting harm from the test [id. 35]. She wore a
Seth Crowder has a deeply held religious objection to wearing a mask and being tested [Ex. 124 at 29-30]. He has worn a mask once or twice a week since March 2020, including to stores and restaurants [id. 22].
Macey Policka objects generally to the extra requirements of masks and tests because of the minimal risk to those in her age group, also stating that vegans and pescatarians are less likely to experience serious illness [Ex. 125 at 28]. She lived on the Bloomington campus for the 2020 school year, complied with the university‘s masking policy, and underwent weekly mitigation testing from which she states she did not suffer any harm [id. 14-18]. She has never experienced judgment or alienation due to wearing a mask at the university but is concerned about having to wear a mask while pursuing her theatre degree [id. 25, 42].
Margaret Roth objects to the mask and testing requirements because she thinks masks are silly and she claims nasal swabs cause cancer [Ex. 126 at 12, 29, 35-36]. She has worn a mask while at school, shopping, and working [id. 31-33]. She has a religious objection to the vaccine but did not file for an exemption because she doesn‘t want to be subject to testing or wear a mask [id. 45-47].
Natalie Sperazza complied with the university testing and masking requirement during the 2020 school year [Ex. 127 at 30-32]. She has been tested for COVID-19 many times, including while working at Amazon, where she would occasionally go to get tested just to have a break [id. 25-26, 30].
M. Procedure.
The students filed a preliminary injunction motion. The court expedited briefing and discovery. The court held oral argument on July 13, 2021, after receiving the record the day before. The parties stipulated to the admissibility of all exhibits. The parties stipulated not to present additional testimony at the preliminary injunction hearing because it would duplicate what they had presented already.
Further evidentiary hearing is generally required for a preliminary injunction motion when there are “genuine issues of material fact” and either side “intends to introduce evidence [at the hearing] that if believed will so weaken [the other‘s] case as to affect the judge‘s decision on whether to issue the injunction.” Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1171 (7th Cir. 1997). That said, such a hearing isn‘t necessary when the evidence would essentially duplicate the declarations, depositions, and other documents the parties have already submitted. See Goodman v. Ill. Dep‘t of Fin. & Pro. Regul., 430 F.3d 432, 439 (7th Cir. 2005) (summarizing Ty, Inc., 132 F.3d at 1171); Ty, Inc., 132 F.3d at 1171. No additional hearing was necessary here. The court has considered over a hundred written exhibits, including sworn depositions and declarations, and heard three hours of argument. This motion is ripe for immediate ruling.
STANDING
Before considering the preliminary injunction motion, the court must ensure its jurisdiction. See Common Cause Ind. v. Lawson, 937 F.3d 944, 949 (7th Cir. 2019); Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017). The
Indiana University raises the issue of standing. Of the eight students here, six have received an exemption under the university‘s policy and one (Margaret Roth) qualifies so long as she pursues it. This leaves one student (Natalie Sperazza) who yet faces an unexemptible choice this semester: either she gets vaccinated or she cannot attend Indiana University this fall. She doesn‘t qualify for an exemption. At minimum, she has standing—an injury fairly traced to Indiana University‘s decision to mandate the vaccine and one the court can redress. See Uzuegbunam, 141 S. Ct. at 797; Taylor v. McCament, 875 F.3d 849, 853 (7th Cir. 2017).
The court has subject matter jurisdiction under Article III so long as one plaintiff has standing. See Horne v. Flores, 557 U.S. 433, 446 (2009); Massachusetts v. E.P.A., 549 U.S. 497, 518 (2007). Even when the standing of others may prove doubtful, see, e.g., Chi. Joe‘s Tea Room, LLC v. Vill. of Broadview, 894 F.3d 807, 813 (7th Cir. 2018), the court‘s jurisdiction remains intact so long as one plaintiff has demonstrated standing to assert her rights, Horne, 557 U.S. at 446. The court thus may proceed to this preliminary injunction motion without addressing the standing of the other students. See id.
That said, the court remains mindful (and the reader should too) that it cannot issue a mere advisory opinion. Article III‘s “case or controversy” requirement prohibits “advisory opinions that do not affect the rights of the parties before the court.” Matlin v. Spin Master Corp., 979 F.3d 1177, 1181 (7th Cir. 2020) (citation omitted). The court isn‘t a law office established for legal advice—the federal judiciary decides cases, not hypothetical outcomes. If the court‘s decision doesn‘t affect a litigant‘s rights, “the aggrieved party [is] unable to illustrate the redressability component of standing, rendering any judicial decision in the case an impermissible advisory opinion.” United States v. Brixen, 908 F.3d 276, 280 (7th Cir. 2018). In short, the court won‘t decide today issues that would not redress the injuries these particular students allege.
PRELIMINARY INJUNCTION STANDARD
A preliminary injunction is a “very far-reaching power, never to be indulged [] except in a case clearly demanding it.” Cassell v. Snyders, 990 F.3d 539, 544 (7th Cir. 2021) (quoting Orr v. Shicker, 953 F.3d 490, 501 (7th Cir. 2020)). To obtain an injunction, the students “must make a threshold showing that: (1) absent preliminary injunctive relief, [they] will suffer irreparable harm in the interim prior to a final resolution; (2) there is no adequate remedy at law; and (3) [they have] a reasonable likelihood of success on the merits.” Tully v. Okeson, 977 F.3d 608, 612-13 (7th Cir. 2020) (quoting Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir. 2015)); see also Winter v. Nat. Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). If they make these threshold showings, the court “consider[s] the balance of harms between the parties and the effect of granting or denying a preliminary injunction
ANALYSIS
A. These Students Aren‘t Likely to Succeed on the Merits.
No case to date has decided the constitutionality of whether a public university, such as Indiana University, may mandate that its students receive a COVID-19 vaccine.66 Given the unique constitutional nature of this case, the court assesses the students’ likelihood of success first, ever mindful that this determination proves preliminary only.
The students must show a likelihood of success on the merits. This is their burden. This showing must be “strong,” which “normally includes a demonstration of how the applicant proposes to prove the key elements of [the] case.” Tully, 977 F.3d at 613 (quoting Ill. Republican Party v. Pritzker, 973 F.3d 760, 762-63 (7th Cir. 2020)). Though an “applicant need not show that [she] definitely will win the case,” a “mere possibility of success is not enough.” Pritzker, 973 F.3d at 762-63.
1. The Fourteenth Amendment.
The students pursue a Fourteenth Amendment claim. The Bill of Rights—the first ten amendments to the United States Constitution—originally applied only to the federal government. See McDonald v. City of Chicago, 561 U.S. 742, 754 (2010). Individual states weren‘t obligated to respect its protections against citizens. See Livingston‘s Lessee v. Moore, 32 U.S. 469, 551-52 (1833); see also McDonald, 561 U.S. at 754 (citing Moore, 32 U.S. at 551-52). This changed with the
The
As interpreted, the
Bearing that in mind, the court initially approaches this case in a two-fold manner. First, the law requires a “careful description” of the asserted right or liberty. See id. at 721; see, e.g., Doe v. City of Lafayette, 377 F.3d 757, 768 (7th Cir. 2004). Second, the court must determine whether the so-defined right or liberty is fundamental under the Constitution. See Glucksberg, 521 U.S. at 721; Doe, 377 F.3d at 768. The
Many rights explicitly secured in the Bill of Rights are considered fundamental, having been gradually incorporated as substantive guarantees under the
Fundamental rights aren‘t limited to those specifically enumerated in the Bill of Rights. Beginning with Griswold v. Connecticut, 381 U.S. 479, 483 (1965), the Supreme Court recognized a right to privacy within the “penumbra” of other constitutional protections and called it fundamental. This right to privacy has included the right for both married and unmarried couples to purchase contraceptives, see Griswold, 381 U.S. at 484-86; Eisenstadt v. Baird, 405 U.S. 438, 454-55 (1972), to abortion, see Roe v. Wade, 410 U.S. 113, 153 (1973), to sexual privacy, Lawrence v. Texas, 539 U.S. 558, 578 (2003), and to marital privacy, Obergefell v. Hodges, 576 U.S. 644, 664-65 (2015). As these cases illustrate, privacy rights largely have been confined to “to sexual and reproductive rights, such as the right to use contraceptives or have an abortion or engage in homosexual acts.” Wolfe v. Schaefer, 619 F.3d 782, 784 (7th Cir. 2010).
The students and university disagree on the constitutional analysis. Declaring a right or liberty fundamental has important implications. Modern constitutional jurisprudence employs a different analysis when a person‘s fundamental right is at stake. If the government infringes on a fundamental right, the court often applies strict scrutiny. Glucksberg, 521 U.S. at 721. In such circumstances, the
Whereas infringements on other rights or liberties, though still constitutionally scrutinized, must meet what courts call rational basis review. Glucksberg, 521 U.S. at 722, Sweeney v. Pence, 767 F.3d 654, 668 (7th Cir. 2014). The law normally applies this standard to
2. The Constitution in a Public Health Crisis.
We live in the era of the COVID-19 virus—worldwide seeing to nearly 189 million cases and 4 million deaths, with these numbers changing daily. The United States hasn‘t been immune. Our citizens have recovered or struggled to recover from over 33 million cases of this novel coronavirus when over 606,000 tragically have passed.67 A public health crisis of this magnitude begs the question: how should the law respond to state action that infringes on the People‘s liberties during such times?
To be sure, the Constitution isn‘t put on the shelf. Indeed, in times of crisis, perhaps constitutional adherence proves the very anchor we all need against irrational and overweening government intrusion that would otherwise scuttle the ship. As the arbiters of the Constitution‘s checks and balances, see Marbury v. Madison, 5 U.S. 137, 176-78 (1803); accord Morrison, 529 U.S. at 616, the courts play an important role in ensuring that the government doesn‘t simply declare a never-ending public emergency and expand its powers ad libitum to the People‘s detriment.
Under our country‘s federalist system, state and federal governments share regulatory authority over public health matters. States traditionally exercise most authority under their inherent police power—and reasonably so when public health may flux and evolve by locale. States thus have the power, within constitutional limits, to pass laws that “provide for the public health, safety, and morals[.]” Barnes v. Glen Theatre, 501 U.S. 560, 569 (1991); accord Glucksberg, 521 U.S. at 729-31; Zucht v. King, 260 U.S. 174, 176-77 (1922), Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 24-25 (1905).
To answer the question today, the court travels back in time to 1905: a time before the modern tiers of constitutional analysis (strict scrutiny and rational basis) and one rampaged by the smallpox epidemic. In that year, the United States Supreme Court issued a leading decision in answer to this question.
The City of Cambridge, relying on this statute and acting through its board of health, ordered its citizens vaccinated for smallpox. Id. at 12-13. Smallpox was devastating, claiming almost 300 million lives in the 20th century before being eradicated.68 In the early 1900s, and closer to the time that Massachusetts wrestled with the disease, there were 1,596 cases of smallpox in Boston, with 270 deaths, in a city with a population close to 561,000.69 Massachusetts, particularly Boston, was an epicenter of one of two major smallpox outbreaks. Opponents of vaccination questioned its safety and efficacy; though generally safe, it could cause ulceration, lobar pneumonia, cellulitis, parotitis, sepsis, and tetanus, to name a few conditions.70 Side effects ostensibly posed a greater problem than mild smallpox.71 The smallpox vaccine wasn‘t risk-free in the early 1900s. That said, vaccinations had been used for some considerable time—begun by state-supported facilities in England in 1808 and mandated by many other countries throughout the 1800s before the Massachusetts mandate in 1902. Id. at 31, n.1. This all transpired before the FDA came into being.
Henning Jacobson refused the vaccine in Massachusetts. After a trial, a jury found him guilty of refusing the vaccine. The court sentenced him to jail until he paid the $5.00 criminal fine. On appeal, he argued that the Massachusetts law authorizing the vaccine mandate violated his Fourteenth Amendment rights. Id. at 13.
The United States Supreme Court rejected his challenge. A state‘s police power “must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Id. at 25. This power included the “authority of a state to enact quarantine laws and health laws of every description;” and such power extended to “all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states.” Id. The Constitution gave Massachusetts broad deference: a court should only intervene “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. at 31.
Of note, Jacobson upheld only the constitutionality of the state statute, id. at
The students want Jacobson confined to its time, whereas the university believes it applies with full force. In the years since, the high court has leaned on Jacobson to uphold government measures intended for the public welfare under effectively rational basis review, finding the measures reasonably advancing a legitimate state interest. For example, Zucht, 260 U.S. at 175-77, relied on Jacobson to uphold a city ordinance excluding from its public schools children not having a certificate of vaccination, holding that it was within the state‘s police powers reasonably to so act. According to Zucht, Jacobson settled the state‘s power “to provide for compulsory vaccination” and, “consistently with the federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative.” Id. at 176. This was not authorization of “arbitrary power,” but only that broad discretion required for the protection of the public health.” Id. at 177. In doing so, “state and federal legislatures [enjoy] wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Gonzales v. Carhart, 550 U.S. 124, 163 (2007) (citing Jacobson, 197 U.S. at 30-31).
Based on this power, states and their authorized arms have historically adopted vaccination mandates. For instance, all fifty states and the District of Columbia have laws requiring students to receive certain vaccines before they may attend school.72 Many align their vaccine requirements with CDC‘s immunization recommendations, and all laws provide exemptions for medical reasons and nearly all religious exemptions.72 Adult vaccination mandates often have been limited to the private employment sector,73 though not always. For instance, the State of Indiana requires all public university students to receive vaccinations for diphtheria, tetanus, measles, mumps, rubella, and meningococcal disease, save for religious and medical exemptions. See
Similarly, but outside the vaccination context, Hamilton v. Regents of the University of California, 293 U.S. 245, 264 (1934), relied on Jacobson to uphold a state university‘s decision to compel military training for its students (five years before World War II). Certain minors (not adults) were required
peace and order and every citizen’s “reciprocal duty, according to his capacity, to support and defend government against all enemies.” Id. at 262-63. Justice Cardozo eloquently concurred: “The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government. One who is a martyr to a principle—which may turn out in the end to be a delusion or an error—does not prove by his martyrdom that he has kept within the law.” Id. at 268.
Repose the thought whether we face just such a common enemy today in COVID-19. In this century, other than the Supreme Court’s reliance on Jacobson in 2007, see Gonzales, 550 U.S. at 163, courts have returned again to its guidance during the COVID-19 pandemic. Just last year, this circuit endorsed Jacobson. See Pritzker, 973 F.3d at 763 (“The district court appropriately looked to Jacobson for guidance, and so do we.”). The circuit held that “Jacobson t[ook] off the table any general challenge” to an executive order that subjected religious gatherings to recommended limits on gatherings, rather than mandatory ones. Id. at 763-64. The Illinois governor implemented “an order designed to address a serious public-health crisis,” and Jacobson afforded broad deference “[a]t least at this stage of the pandemic.” Id.
That decision was almost ten months ago—in terms of the law very recent, but in terms of this ever-evolving health crisis before the proverbial rinderpest. We are no longer at the same stage of the COVID-19 pandemic; indeed, some—like the students—argue that the pandemic is effectively over. And since this circuit’s Pritzker decision, more cases bearing on the subject of public health in the COVID-19 pandemic have arrived.
One such decision—and one heavily briefed by the parties—is Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020). In Cuomo, the State of New York adopted capacity restrictions on religious institutions that treated them less favorably than so-called “essential” businesses, id. at 66, including liquor and hardware stores, id. at 69 (Gorsuch, J., concurring). Cuomo applied strict scrutiny because the law targeted religious practice contrary to the
Cuomo enhanced the law’s focus under the
The students read Cuomo as implicitly overruling Jacobson, or at least as abrogating it. Though the Supreme Court may overrule a case without explicitly saying so, see Levine v. Heffernan, 864 F.2d 457, 461 (7th Cir. 1988), this is a tall task. Before a federal court concludes that the Supreme Court has implicitly overruled a prior decision, it must be “certain or almost certain that the decision or doctrine would be rejected by the higher court if a case presenting the issue came before it.” Olson v. Paine, Webber, Jackson & Curtis, Inc., 806 F.2d 731, 741 (7th Cir. 1986). This high bar is rarely met. Id. It isn’t met here. Cuomo and Jacobson involved entirely different modes of analysis, entirely different rights, and entirely different kinds of restriction. See Cuomo, 141 S. Ct. at 70 (Gorsuch, J., concurring) (saying the same). “Jacobson applied what would become the traditional legal test associated with the right at issue”—exactly what Cuomo did. Id. The cases walk hand-in-hand.
This history isn’t all rosy. Unsuccessful thus far, the students turn to Buck v. Bell, 274 U.S. 200 (1927). In a rather infamous case, an eight-member majority, save for one dissenting justice, upheld the involuntary sterilization of a woman based on a Virginia law that rested on faulty science and public support for “eugenics”—the repulsive notion that the human race could be improved by controlling reproduction from those with developmental challenges, mental illness, or criminal histories. Citing Jacobson for the principle that “compulsory vaccination is broad enough to cover cutting the Fallopian tubes,” and offering the chilling justification that “[t]hree generations of imbeciles are enough,” the majority upheld the law against a
Jacobson was written before the modern tiers of constitutional scrutiny, so a legitimate question is the extent to which Jacobson applies with full force today. This is a topic of some debate. See, e.g., id. at 70 (Gorsuch, J., concurring) (“Jacobson didn’t seek to depart from normal legal rules during a pandemic, and it supplies no precedent for doing so.”); Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2608 (2020) (Alito, J., dissenting) (“it is a mistake to take language in Jacobson as the last word on what the constitution allows public officials to do during the COVID-19 pandemic”); Big Tyme Inv., LLC v. Edwards, 985 F.3d 456, 470-71 and n.3 (5th Cir. 2021) (Willett, J., concurring) (“I am not the first to express doubts about Jacobson”); S. Bay United Pentecostal Church v. Newsom, 959 F.3d 938, 943 n.2 (9th Cir. 2020) (Collins, J., dissenting) (“I am unable to agree with the Fifth Circuit’s conclusion that Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.”) (quotations omitted), cert. denied, 140 S. Ct. 1613 (2020). No Supreme Court opinion has overruled or abrogated Jacobson.
Considering the modern tiers of constitutional scrutiny, the court reads Jacobson and Cuomo harmoniously, appreciating their respective spheres. Though Jacobson was decided before tiers of scrutiny, it effectively endorsed—as a considered precursor—rational basis review of a government’s mandate during a health crisis. See Jacobson, 197 U.S. at 31; see also Cuomo, 141 S. Ct. at 70 (Gorsuch, J., concurring). In its words, if a law purporting to be enacted to protect public health “has no real or substantial relation to [that legitimate aim]” or if the law proves “a plain, palpable invasion of rights secured by the fundamental law,” the court’s job is to give effect to the Constitution. Jacobson, 197 U.S. at 31. Should the court have this melding of history and modernity wrong in faithfully adhering to the
This view remains consistent with the right at stake in Jacobson: though a true “liberty” proved at stake—the right to refuse a vaccine during a smallpox epidemic—this interest in bodily autonomy, though protected by the Constitution, wasn’t fundamental under the Constitution to require greater scrutiny than rational basis review. See Sweeney, 767 F.3d at 668 (rational basis review for infringements on non-fundamental rights). At the same time, Jacobson didn’t hold that the government’s authority in a pandemic balloons for it do whatever it wants in the name of public safety.
Jacobson instead counseled that federal courts should require a rational relation to a legitimate interest in public health. See Jacobson, 197 U.S. at 31; Cuomo, 141 S. Ct. at 70 (Gorsuch, J., concurring). That Cuomo imposed heightened scrutiny of the government’s interference with the free exercise of religion—a fundamental right under the
The university seems to argue that Jacobson gave even more deference than rational basis review during a public health crisis, but not fairly so; and, even then, Jacobson cannot be taken once more too far. See, e.g., Big Tyme, 985 F.3d at 467; ARJN #3 v. Cooper, 517 F. Supp. 3d 732, 2021 U.S. Dist. LEXIS 22286, 19 (M.D. Tenn. Feb. 5, 2021); Let Them Play MN v. Walz, 517 F. Supp. 3d 870, 2021 U.S. Dist. LEXIS 23485, 15 (D. Minn. Feb. 8, 2021); Culinary Studios, Inc. v. Newsom, 517 F. Supp. 3d 1042, 2021 U.S. Dist. LEXIS 23775, 38-39 (E.D. Cal. Feb. 8, 2021); Oakes v. Collier Cnty., 515 F. Supp. 3d 1202, 2021 U.S. Dist. LEXIS 15174, 4 n.4 (M.D. Fla. Jan. 27, 2021); M. Rae, Inc. v. Wolf, 509 F. Supp. 3d 235, 2020 U.S Dist. LEXIS 241961, 16 n.25 (M.D. Pa. Dec. 23, 2020); Denver Bible Church v. Azar, 494 F. Supp. 3d 816, 829 (D. Colo. 2020); AJE Enterprise LLC v. Justice, 2020 U.S. Dist. LEXIS 222186, 12 (N.D. W. Va. Oct. 7, 2020).
Jacobson doesn’t justify blind deference to the government when it acts in the name of public health or in a pandemic. For instance, the decision left the door open for people with legitimate medical concerns to challenge the vaccine mandate. See Jacobson, 197 U.S. at 38-39. And the deference owed to the States
[A]t the outset of an emergency, it may be appropriate for courts to tolerate very blunt rules. . . . [B]ut a public health emergency does not give . . . public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.
Calvary Chapel, 140 S. Ct. at 2605 (Alito, J., dissenting); accord Cassell, 458 F. Supp. 3d at 993-94 (“courts must remain vigilant, mindful that government claims of emergency have served in the past as excuses to curtail constitutional freedoms.”).
In short, the Constitution doesn’t permit the government to declare a never-ending public emergency and expand its powers arbitrarily. See Belcher v. Norton, 497 F.3d 742, 753 (7th Cir. 2007) (“substantive due process . . . affords protection of the individual against arbitrary action of government”). Instead, as our country and communities progress through a pandemic, the government must continually update its practices in light of the most recent medical and scientific developments. And a law or policy should be written with a mindset that medicine and science, and the circumstances that they create, will evolve, and so must the law or policy evolve or be revisited in amendment.
In sum, the law today recognizes Jacobson as a precursor to rational basis review. This is consistent with statements of many justices who continue to acknowledge Jacobson as good law, albeit with constitutional restraint.74 Government action that infringes on the liberty interest here, as in Jacobson, is subject to rational basis review. See Sweeney, 767 F.3d at 668.
3. Defining the Right & Constitutional Analysis.
The students assert a right to refuse the vaccine, saying the mandate infringes on their bodily autonomy and medical privacy. Indiana University throws a challenge flag here. To it, these students are merely saying they have a right to refuse a vaccine so that they may attend college. The university says the right being infringed then isn’t the right to refuse a vaccine, but the right to attend college. Indeed, if they choose to forego college at Indiana University, there is no vaccine requirement.
But that’s not what this case concerns, and that’s not the liberty at stake. The “unconstitutional conditions doctrine” forbids the university from pulling the rug out from under the students in a roundabout way. Under this doctrine, argued by the students as “coercion,” “the government may not deny a benefit to a person because he exercises a constitutional right.” Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604 (2013) (citations omitted); Regan v. Taxation with Representation of Wash., 461 U.S. 540, 545 (1983). This doctrine protects constitutional rights “by preventing the government from coercing people into giving them up.” Koontz, 570 U.S. at 604. It “aims to prevent the government from achieving indirectly what the Constitution prevents it from achieving directly.” Planned Parenthood of Ind. v. Comm’r, 699 F.3d 962, 986 (7th Cir. 2012). The students say this state actor is denying a benefit—a public university education—because they are exercising a constitutional right to refuse a vaccine.
The first step in an unconstitutional condition claim “is to identify the nature and scope of the constitutional right arguably imperiled by the denial of a public benefit.” Id. Here, the
But in these, and in other cases, this liberty interest has remained confined either by duly enacted and constitutional state laws or the state’s legitimate interests that it had rationally pursued in regulation. See also Washington v. Harper, 494 U.S. 210, 221-22 (1990) (prisoner has a “significant liberty interest in avoiding the unwanted administration of antipsychotics drugs under the Due Process Clause . . . [but] no greater right than that recognized under state law”); Vitek v. Jones, 445 U.S. 480, 492 (1980) (“Compelled treatment in the form of mandatory behavior modification programs . . . was a proper factor to be weighed by the District Court. . . . Were an ordinary citizen to be subjected involuntarily to these consequences, it is undeniable that protected liberty interests would be unconstitutionally infringed absent compliance with the procedures required by the Due Process Clause.”); Ingraham v. Wright, 430 U.S. 651, 673, 683 (1977) (“Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security. . . . The Eighth Amendment’s prohibition against cruel and unusual punishment is inapplicable to school paddlings, and the Fourteenth Amendment’s requirement of procedural due process is satisfied by Florida’s preservation of common-law constraints and remedies.”)
The rights recognized (or assumed) in these cases weren’t “simply deduced from abstract concepts of personal autonomy.” Glucksberg, 521 U.S. at 725. They were rooted in longstanding common law rules or legal traditions consistent with this Nation’s history. See id. The students, quite skillfully represented in this emergency setting, offer no preliminary record of such historic rules, laws, or traditions that would facilitate the court’s announcement, now in mere days from receiving this case, that a right to refuse a vaccine is anything more than a significant liberty under the
The dearth of this record isn’t a passing point. Indeed, both Cruzan and Glucksberg were limited to an individual’s choice related to the refusal of lifesaving subsistence or medical treatment—with no ramifications to the physical health of others. Vaccines address a collective enemy, not just an individual one. Indeed, “the elimination of communicable diseases through vaccination [is] one of the greatest achievements of public health in the 20th century,” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 226 (2011) (Scalia, J.) (citation and quotations omitted), and it continues to be so now in this century. A vaccine is implemented as a matter of public health, and historically hasn’t been constitutionally deterred from state mandate. See, e.g., Zucht, 260 U.S. at 176-77; Jacobson, 197 U.S. at 30-31.
In the backdrop of the
Added comfort comes from the consistent use of rational basis review to assess mandatory vaccination measures. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds” and “[t]he 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”); Zucht, 260 U.S. at 176-77; Jacobson, 197 U.S. at 30-31; Phillips v. City of New York, 775 F.3d 538, 542-43 (2d Cir. 2015); Workman v. Mingo Cnty. Bd. of Educ., 419 F. Appx. 348, 355-56 (4th Cir. 2011); W.D. v. Rockland Cnty., 521 F. Supp. 3d 358, 2021 U.S. Dist. LEXIS 33515, 74 (S.D.N.Y. Feb. 22, 2021); Doe v. Zucker, 520 F. Supp. 3d 177, 2021 U.S. Dist. LEXIS 28937, 111 (N.D.N.Y. Feb. 17, 2021); Connecticut Citizens Defense League, Inc. v. Lamont, 465 F. Supp.3d 56, 72 (D. Conn. 2020); Middleton v. Pan, 2016 U.S. Dist. LEXIS 197627, 20 (C.D. Cal. Dec. 15, 2016); George v. Kankakee Cmty. Coll., 2014 U.S. Dist. LEXIS 161379, 8-9 (C.D. Ill. Oct. 27, 2014), recommendation adopted, 2014 U.S. Dist. LEXIS 160737, 1-2; Boone v. Boozman, 217 F. Supp. 2d 938, 954 (E.D. Ark. 2002).
Given over a century’s worth of rulings saying there is no greater right to refuse a vaccination than what the Constitution recognizes as a significant liberty, the court declines the students’ invitation to extend substantive due process to recognize more than what already and historically exists. See Glucksberg, 521 U.S. at 721; Harper, 494 U.S. at 221-22; Prince, 321 U.S. at 166-67; Zucht, 260 U.S. at 176-77; Jacobson, 197 U.S. at 30-31.
Quite separately from this, the Constitution never provides a fundamental right to a collegiate education. Nor does it secure as a fundamental liberty a student’s right to attend a public university no matter his or her vaccinated status. The court isn’t saying a student doesn’t have the right to choose. Of course every individual does—subject to the state’s reasonable measures designed to pursue legitimate ends of disease control or eradication.
The students argue that the university’s vaccine mandate doesn’t provide for informed consent. “The notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment.” Cruzan, 497 U.S. at 269. Informed consent “entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.” Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972). The students acknowledge that, for medical products under an EUA like the three COVID-19 vaccines, HHS must establish conditions to facilitate informed consent. See
The students admit that the informed consent requirement under the EUA statute only applies to medical providers. The university isn’t directly administering the vaccine to its students; instead, it is requiring students to obtain the vaccine from a medical provider and to attest that they have been vaccinated, save for certain exemptions. The students will be informed of the risks and benefits of the vaccine and of the option to accept or refuse the vaccine by their medical providers. See
The university is presenting the students with a difficult choice—get the vaccine or else apply for an exemption or
One last point before moving on. As a final push, the students argue that the vaccination requirement violates their free exercise of religion. The
The vaccine mandate is a neutral rule of general applicability. It applies to all students, whether religious or not. It doesn’t discriminate among religions. Indeed, the university has chosen to enable the practice of religion by providing a religious exemption to this vaccination requirement—one that the university, on this record, has freely granted to students if they request it, no questions asked. This is consistent with the Constitution. See Nikolao v. Lyon, 875 F.3d 310, 316 (6th Cir. 2017) (religious plaintiff had no constitutional right to an exemption from mandatory vaccination law for public school students, though state provided one); Phillips, 775 F.3d at 543 (state “could constitutionally require that all children be vaccinated in order to attend public school. . . . [but the State went] beyond what the Constitution requires by allowing an exemption for parents with genuine and sincere religious beliefs”); see also Workman, 419 F. Appx. at 356; Whitlow v. California, 203 F. Supp. 3d 1079, 1084 (S.D. Cal. 2016); Boone, 217 F. Supp. 2d at 954. Indiana University adopted a religious exemption, despite a religious-neutral vaccine mandate, which the law views as a matter of grace. Indeed, six of the eight students here applied for just such a religious exemption and obtained one.
In short, based on this analysis, all roads effectively lead to rational basis review: Jacobson as a precursor to or stand-alone iteration of it, the modern tiers of constitutional scrutiny, the unconstitutional conditions doctrine, and the
4. On This Preliminary Record, Non-Exempt Students Haven’t Shown a Likelihood of Success on their Claim that Indiana University Lacks a Rational Basis for Its Vaccine Mandate.
Determining that the students have a liberty interest under the
“Stemming the spread of COVID-19 is unquestionably a compelling interest.” Cuomo, 141 S. Ct. at 67 (majority opinion). According to the federal government and the State of Indiana, a state of emergency persists related to COVID-19, all the while restrictions are being scaled back gradually. Recognizing today’s status of this pandemic, neither health professionals, government representatives, nor this court may say public health vis-à-vis COVID-19 has waned from being a legitimate state interest. Improved it undoubtedly has—today seems a world altogether different from last year—but public health remains a legitimate interest of the state to pursue. Indiana University too has a legitimate interest in promoting the health of its campus communities—students, and not least the faculty and staff who come daily in contact with them.
The students argue that the pandemic is basically over, but this goes against current proclamations from the Secretary of Health and Human Services, the Indiana State Department of Health, Governor Eric Holcomb, and the CDC, all then supported for institutions of higher learning by the U.S. Department of Education and the American College Health Association.76 In Indiana (and nationally), the trend line remains sharply down (since winter) in terms of both new cases and deaths, though the recent snapshot of seven-day lookbacks proves nearly triple what it was just when this case commenced.
It isn’t unreasonable to believe that, absent concerted vaccination, the fall and winter months will prove more arduous than these summer months for the university [Ex. 129 at 32]. Vastly improved, yes; out of the woods we aren’t, not on this preliminary record.
The students argue that the bell curve that depicts ongoing cases and deaths from this pandemic’s outset mirrors the CDC’s continuum of pandemic phases that directs more conservative measures, not more draconian ones [see, e.g., Exs. 212, 222, 230-231]. The students call this pandemic in the “deceleration” or “preparation” intervals—terms of art that define its waning stages. Deceleration occurs when state or local health officials rescind community mitigation measures because no new cases are occurring or are occurring infrequently; and preparation occurs when the pandemic is declared ended because evidence indicates that the disease is transitioning to seasonal patterns of transmission [Ex. 231]. The overall trend line may well support a seeming deceleration [cf. Exs. 222, 319]; but Indiana University insisting on vaccinations for its campus communities is rationally related to ensuring the public health of students, faculty, and staff this
Let’s not forget why we are here at this more promising stage of the pandemic, July 18, 2021. Antibody resistance developed naturally from prior cases has been a contributor to be sure; but, materially, improvement has come because of vaccinations—nationally over 161 million complete (over 337 million doses) and statewide nearly 3 million complete (and over 5.7 million doses). The vaccination campaign has markedly curbed the pandemic. In fact, certain age-stratified, agent-based modeling of COVID-19 has concluded that another 279,000 deaths and nearly 1.25 million more hospitalizations would have occurred by the end of June 2021 but for the vaccines.77 Stemming illness, hospitalizations, or deaths at the university level hardly proves irrational.
It isn’t a foregone conclusion that this is overkill. This pandemic continues to evolve, and medicine and science with it. Science is a process in search of fact. One such moving target is the Delta variant (B.1.617.2). A mere four days ago Indiana reported 612 COVID cases—the highest count in more than six weeks (since May 27, 2021)—that health officials attributed largely to the Delta variant and the unvaccinated population. Though this daily case count is much lower than at the pandemic’s height, the CDC, Indiana’s State Department of Health, and epidemiologists have identified the Delta variant of particular lingering concern.78 The CDC labeled Delta a “variant of concern” in mid-June.79 Current science shows it more virulent and transmissible. A peer-reviewed study from scientists (issued July 8, 2021) found that the Delta variant has mutations that allow it to evade certain natural antibodies, with vaccination proving the best protection [Ex.
319].80 Reports of surges of Delta
Indiana University reasonably believes the vaccine promotes the safety of not only its students, but that of its entire community. This wasn’t (and still isn’t) a decision taken lightly. It wasn’t a decision reached overnight. It wasn’t a decision taken by some fly-by-night committee undetached from the current science, the current progress of the fight
against the pandemic, or experience and training in relevant fields of study. The restart committee was led by Indiana University’s Executive Vice President for University Clinical Affairs and the School of Medicine’s Dean. The committee consisted of seven MDs, some with additional degrees in public health or other PhDs, and others with graduate degrees in public health, risk mitigation, law, and ethics [Ex. 300 at 5]. Of its 15 members, two were deans of public health and others were experts in public health, epidemiology, virology, and other relevant areas of the health sciences, including health equity [Ex. 116 ¶ 23]. The committee met regularly and considered a wide variety of sources and information [id. ¶ 24].
A mere sampling of presentations from committee meetings from December 8, 2020 to April 6, 2021 [Exs. 302-317] shows the committee focused on COVID-19 evolution; EUA data; reactogenicity data; communications with the Indiana State Department of Health; CDC guidelines and updates; university-wide surveillance testing and data; data trends based on vaccinated and unvaccinated individuals; on-campus and off-campus transmission events; morbidity and mortality figures; efficacy of mitigation efforts on and off campus; international, national, state, county, and school vaccine uptake data; vaccine efficacy against variants; vaccine risk data; vaccine hesitancy surveys and campus opinion polling; and policies and requirements of other universities across the country [see also Ex. 301 ¶ 2]. In addition, four MDs from this committee presented near-weekly from December 2020 to June 2021 to Indiana University’s Executive Academic Leadership Council, including the President and Executive Vice Presidents as part of the medical response team’s ongoing COVID-19 evaluation efforts [Id. ¶ 5]. The process ultimately
filtered through the judgment of the Board of Trustees. This was a deliberative decision based on a wealth of scientific, medical, empirical, and industry-wide data.
For the impact of this vaccine mandate, the students focus only on the student
In addition, the student‘s position overlooks the larger Indiana University community. Dr. McCullough, in fairness, takes a wider snapshot yet, pointing to a longitudinal serosurvey (blood sampling) of community residents near Pennsylvania State University suggesting that students’ return in August 2020 had limited transmissible effect on the local community [Ex. 117 ¶ 29-30].82 But Indiana University‘s perspective was more intimate. The university analyzed the number of individuals within its campus population known to have increased risk factors for COVID-19 and determined that over 8,500 faculty and staff remained at increased risk of complications if they contracted the disease [Ex. 116 ¶ 26], with the ongoing risk of asymptomatic spread that vaccines help address [Ex. 129 at 53-54]. Faculty and staff at Indiana University who have daily contact with students represent an even broader demographic than just the student body, and this policy was intended to protect them too. The court credits Dr. Carroll and Dr. Beeler over Dr. McCullough on this point given their firsthand knowledge of Indiana University‘s specific circumstances.
The university‘s policy has broad support within its community. As of June 25, 2021, over 42,000 students had received the vaccine; and that number has no doubt grown [Ex. 116 ¶ 46]. Two university faculty councils—elected representative bodies interested in the quality of learning and student life—issued statements in support [id. ¶ 47]. The staff council at Indiana University‘s main campus in Bloomington likewise endorsed the policy [id. ¶ 49]. The graduate and professional student government also issued a resolution supporting the policy [id. ¶ 50]. Eight students have filed this lawsuit, and perhaps others await this ruling to decide. Under the circumstances, on this preliminary record, the law respects the right of this university community to self-govern reasonably.
To that point, no one has argued that Indiana University‘s policy is ultra vires. Indiana‘s General Assembly endowed the university‘s Board of Trustees to act in the “best interests of the state and the state educational institution,”
The Indiana General Assembly has prohibited a vaccine passport in this state, but not a vaccine requirement. See
Focusing on just mortality risk from COVID-19 leaves out much of the debate. Dr. McCullough and Dr. Beeler (with Dr. Carroll), for instance, offer competing views on the risks of the novel coronavirus and the risks of the vaccines [Exs. 115-117, 222, 319].83 This is precisely the debate of medical professionals that state policymakers, including authorized arms of the state, are best suited to resolve in setting policy for constituents, including here for the students at Indiana University.
Without vaccination, college-aged students remain at risk for serious long-term complication from COVID-19, including prolonged debilitating symptoms that interfere with normal life such as myocarditis, reduced aerobic capacity, and brain damage [Ex. 319 ¶ 5].84 Long COVID remains a studied phenomenon. With Indiana reporting that individuals aged 20-29 have had more positive cases than any other age demographic [Ex. 115 ¶ 14], and with more than 260,000 cases linked to American college and universities since January 1, 2021 [id. ¶ 17], this proves still a legitimate risk.85 Focusing only on mortality
The students say the risks of the vaccine, especially at this stage and to their age group, outweigh any benefits a vaccine might confer. These argued risks include myocarditis, clotting, death, and others [Ex. 117 ¶ 48-49]. Some of these concerns are easier to assuage based on current science than others—and the court isn‘t the final arbiter of an evolving science, only of the law. The court must base today‘s decision on the snapshot of this preliminary record alone. It answers the question only whether the students have made a strong showing that Indiana University failed to act reasonably in achieving campus health to warrant the extraordinary remedy of a preliminary injunction.
That said, Dr. Beeler concludes that with millions of people getting the vaccine, experts “have [a] much tighter lens than we normally would for any other vaccine in history to identify some of those extremely rare concerns” [Ex. 128 at 80], and that younger people have a “higher probability” of facing issues with COVID-19 infection than after vaccination [id. 78]. All vaccine manufacturers conducted Phase 3 trials for EUA that never revealed the risks the students have presented [id. 79].
Since then, reports have shown the risk of myocarditis (heart inflammation), while present and something worthy of continued investigation, to be seemingly rare—one study suggesting the risk is about eight in one million and the other study suggesting the risk is about twenty in one million.86 This issue has garnered increasing attention. The FDA reported CDC data (through May 31, 2021) of 475 cases of myocarditis (heart inflammation) and pericarditis (inflammation of membrane around heart) in vaccinated individuals age 30 and younger [Ex. 117 ¶ 49].87 This data came from the Vaccine Adverse Event Reporting System (VAERS)—anecdotal data that, while important to analyze, requires further investigation before drawing conclusions. See, e.g., Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1199 (11th Cir. 2002) (“case reports alone ordinarily cannot prove causation“); Glastetter v. Novartis Pharms. Corp., 252 F.3d 986, 989-90 (8th Cir. 2001) (“causal attribution based on case studies must be regarded with caution“).88 Still, on June 24, 2021, a CDC safety panel reported a “likely association” in young adults from mRNA COVID-19 vaccines and myocarditis and pericarditis, though it emphasized that it remained rare and typically mild, with the benefits of the vaccine still outweighing the risks [Ex. 117
The students argue the temporal association of these risks, but just because the rooster crows doesn‘t mean he caused the sun to rise. A close review of Dr. McCullough‘s testimony reveals a true failing. Even he, the students’ own tendered expert, a credentialed and board-certified physician in internal medicine and cardiovascular disease, stops short of declaring a causative link between any vaccine and myocarditis. He uses soft and inconsequential language, calling his suspicion “possible” and “unpredictable” [Ex. 117 ¶ 48, 73], not probable or causative to a reasonable degree of medical certainty. See Harris v. Owens-Corning Fiberglas Corp., 102 F.3d 1429, 1433 (7th Cir. 1996) (“mere possibility of . . . causation is not enough“). He says he has examined college-age patients with myocarditis after a vaccine injection [Ex. 117 ¶ 59], but once again never testifies that one was caused by the other. See Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904-05 (7th Cir. 2007) (“mere existence of a temporal relationship between taking a medication and the onset of symptoms does not show a sufficient causal relationship“).
With ever evolving COVID-19 science, more will be known tomorrow, next month, and next year; but a courtroom is no place for guesswork today, even if well-inspired. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993); Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996); Constructora Mi Casita v. NIBCO, Inc., 448 F. Supp.3d 965, 970-71 (N.D. Ind. 2020). Dr. Beeler testifies that “there is no proof of causation between the vaccination and myocarditis” [Ex. 115 ¶ 69]. The court gives Dr. McCullough‘s testimony little weight on this record.91 These statements are made with considered humility. The court isn‘t deciding causation today to be sure. At the same time, the students haven‘t marshaled strong evidence that would call into legitimate question the reasonableness of the university‘s actions, or to meet their burden of an extraordinary remedy of a preliminary injunction.
The students return to VAERS to discuss the risk of death from the vaccines. Dr. McCullough says VAERS reported 6,136 deaths after vaccines as of June 18, 2021 [Ex. 117 ¶ 45]. He says VAERS received more adult death reports from COVID-19 vaccines than all other vaccines combined [id.]. The students offer an interim abstract from clinically trained reviewers that considered the VAERS data as of April 2021, who grouped the reports as those where the vaccine was most likely not a factor, where it may have been, and where it was the most likely factor [Ex. 254].92 Of the 250 deaths reported at the time, the reviewers concluded that 13 deaths were most likely caused by vaccines, noting that these individuals had strong reactions soon after vaccination and died the same day or during the next couple days [id.], though again temporal anecdotes like these aren‘t as telling. See Ervin, 492 F.3d at 904-05. They warrant further investigation to be sure; but in close review this interim abstract offers no scientific or medical basis for drawing its conclusion. Indeed, when the court asked counsel at oral argument what the basis was for it, he too could offer no explanation [Tr. 34-37]. And more to the point, Dr. McCullough again stops short of testifying that any one reported death in VAERS was caused by a vaccine, despite this interim abstract [Ex. 117 at 21-26]. The students thus haven‘t presented evidence today demonstrating Indiana University‘s decision was irrational in pursuing its goal of campus health.
The experts disagree over the relative risk of asymptomatic transmission (and indeed over many scientific conclusions), with the students contending that transmission from asymptomatic infections is “trivial and inconsequential” [Ex. 117 ¶ 26-27],96 and the university pointing to its own experience and national trends indicating that asymptomatic transmission is “certainly still very possible” [Ex. 115 ¶ 52].97 As with any new pathogen, scientific understandings
Other risks exist or may become known. For instance, the FDA warns of the potential for blood clots, reported the most in females ages 18-49, but calls this risk “remote.” Just four days ago, the FDA added a warning to its fact sheet for the Janssen COVID-19 vaccine that Guillain-Barré syndrome (a neurological disorder in which the body‘s immune system damages nerve cells and causes muscle weakness and sometimes paralysis) has occurred in some people who have received the vaccine. The FDA calls this risk “very low.”98 In contrast, Dr. Beeler testifies that brain damage proves a risk from COVID-19 without a vaccine [Ex. 319 ¶ 5], as do several neurological diagnoses, particularly for those hospitalized by a COVID-19 infection.99 The risks aren‘t all one-sided, but the wealth of data and studies on which Indiana University has relied makes the likelihood that the students will prevail on their claim here quite low.
Don‘t forget that vaccines generally aren‘t without medical risks. In 1993, the Indiana General Assembly required that all public university students receive vaccinations for five conditions, see
To be sure, EUA of the COVID-19 vaccines occurred on a tighter timetable and has existed only since December 2020 and February 2021. The students thus voice concerns about the experimental nature of the vaccines, though their counsel assures that their suit will persist even if the FDA grants the vaccine manufacturers full approval. Not all EUAs are equal, and the one required for COVID-19 vaccines was more robust than usual.
In addition to these criteria, HHS must ensure medical providers are informed of the product‘s EUA status, the “significant known and potential benefits and risks of the . . . product, and of the extent to which such benefits and risks are unknown,” and the availability, risks, and benefits of alternative products.
The impetus behind issuing an EUA, as opposed to going through the process for full FDA approval, comes from the urgency required. The standard process for vaccine approval requires a manufacturer to demonstrate compliance with statutory, regulatory, and agency standards. See
In October 2020, the FDA released industry guidance detailing the benchmark criteria for a COVID-19 vaccine to receive an EUA.105 Though not legally binding,106 the industry guidance acknowledged that a COVID-19 vaccine was a “complex biological product[] . . . intended to be administered to millions of individuals, including healthy people, to prevent disease . . . [and has] the potential for broad use under an EUA.”107 Because the virus would only be overcome through the sweeping immunity of the American public, the FDA informed manufacturers that approval would be given to those EUA applications that went beyond the safety and efficacy requirements prescribed by statute, and also expected manufacturers to consult with the FDA on the various non-clinical components of vaccine development and distribution as the clinical trial progressed.108 The FDA wanted the same level of efficacy data as for full approval, enough safety data to justify providing the vaccine to healthy individuals, and confirmation of the technical procedures and verification steps necessary to support full approval.109
Thus, manufacturers were expected to submit “adequate manufacturing information
Although the FDA directs manufacturers to present evidence of efficacy that meet the standards necessary to receive full approval,43 a key distinction between EUA and full approval remains. To receive full approval for a COVID-19 vaccine, a manufacturer must monitor and submit evidence of “serious and other medically attended adverse events in all study participants for at least 6 months after completion of all study vaccinations.”110 However, for an EUA, the manufacturer may submit its safety data based on a median two-months follow-up for every individual who completed the vaccine regimen.111 The FDA concluded that a “2-month median follow-up (meaning that at least half of vaccine recipients in clinical trials have at least 2 months of follow-up) after completion of the full vaccination regimen will allow identification of potential adverse events that were not apparent in the immediate postvaccination period and will also provide greater confidence in their absence, if none are observed.”112 Based on its experience with vaccine studies and approvals, the FDA concluded that “adverse events considered plausibly linked to vaccination generally start within 6 weeks after vaccine receipt,” regardless of the type of vaccine received, and thus the median two-month follow-up was justified “by extensive historical experience with adverse events after vaccination, the need for a vaccine to address the current pandemic, and the magnitude of vaccine effectiveness that will be required to support a favorable benefit–risk profile for use of a Covid-19 vaccine under an EUA.”111 Thus, in setting these stringent expectations, the FDA invited EUA applications only for vaccines positioned well to receive full approval.113
Indiana University closely considered the FDA‘s EUA requirements when adopting its policy. The specialists on the university restart committee appreciated that all three COVID-19 vaccines had been “studied in robust multi-centered, international, randomized-controlled trials and proven both effective and safe in millions of people” [Ex. 115 ¶ 60; see also Ex. 115 ¶ 24, 61-69]. These specialists explained that the EUA vaccines had been based on technology that has been studied for decades [id. ¶ 87]. Though even “small differences in chemical structure can sometimes make very large differences in the type of toxic response that is produced,” McClain v. Metabolife Intern, Inc., 401 F.3d 1233, 1246 (11th Cir. 2005); accord Glastetter, 252 F.3d at 990, much like the FDA, the university concluded that campus safety reasonably outweighed any lingering risks with the vaccines. This wasn‘t just any ordinary EUA process, but EUA on proverbial steroids. The university reasonably concluded that the “benefit dwarfs the potential rare risks” [Ex. 115 ¶ 87].
Progress has been made because of the vaccine, not despite it. To the extent that lingering medical and scientific debate remain on this record, the court remains resolved that Indiana University has acted reasonably here in pursuing public health and safety for its campus communities [cf. Exs. 115, 116].115 See Gonzales, 550 U.S. at 163 (state legislatures have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty“); Zucht, 260 U.S. at 176 (“municipality may vest in its officials broad discretion in matters affecting the application and enforcement of a health law“).
Today, Indiana University has a rational basis to conclude that the COVID-19 vaccine is safe and efficacious for its students. The vaccine has been used on about 157 million Americans; and data now about eight months later, though it will grow more robust in years to come, is considerable and shows major side effects are rare. Much like over 500 universities and colleges in the United States that have done the same,116 Indiana
University reasonably relies on the vaccine as a measure to return to normal school functioning. The students say the mandate is unreasonable because no other Indiana government agency mandates the vaccine. But just because it has gone above what others have done doesn‘t make it unreasonable. Indeed,
Indiana University is following the recommendations of other well-established agencies, including the Centers for Disease Control, U.S. Department of Education, and the Indiana State Department of Health. These are reliable sources to assess the reasonableness of measures implemented, though the court must be cautious not to expand the guidance beyond what it says. See United States v. Newton, 996 F.3d 485, 489 (7th Cir. 2021); Mays v. Dart, 974 F.3d 810, 823 (7th Cir. 2020), cert. filed. To be sure, the CDC doesn‘t recommend that schools “mandate” the vaccine—a point the students make—but such a recommendation isn‘t consistent with the CDC‘s purview, which is to act as an informative agency. At the same time, the university‘s policy isn‘t inconsistent with the CDC‘s recommendations. The CDC says institutions of higher learning “can return to full capacity in-person learning, without requiring or recommending masking or physical distancing for people who are fully vaccinated” [Ex. 116 ¶ 12]. The CDC‘s COVID-19 vaccination documentation). The court will not overstep into the legislative sphere when the state‘s or state arm‘s conduct has complied with the Constitution.
guidance to universities is that “[v]accination is the leading prevention strategy to protect individual from COVID-19 disease and end the COVID-19 pandemic.”117 This will enhance the student body‘s opportunities, allowing them to have a more fulfilling college experience.
Vaccination helps the university get to herd immunity. As its expert, Dr. Beeler, has said, COVID-19 vaccination is an important tool to help stop the pandemic because widespread vaccination will help achieve “herd immunity,” which is when enough people in a community are sufficiently protected from COVID-19 to stem its spread [Ex. 115 ¶ 19-20].118 To be sure, experts debate whether herd immunity is achievable for COVID-19 [Ex. 115 ¶ 21], but Indiana University rationally believes vaccination is the leading prevention strategy to protect individuals from COVID-19 disease. According to Dr. Beeler, “Indiana has not reached herd immunity” [Ex. 115 ¶ 43; see also Exs. 128 at 60, 129 at 23]. As Dr. Beeler explains, “immunity is not static with this virus, and things do change specifically as it relates to variants of concern. . . . The longer that the coronavirus remains in the population, each vulnerable individual that gets infected is the opportunity for further mutations in the virus. And eventually, just by evolutionary theory, the virus will develop ways to bypass the current immune stress” [Ex. 128 at 61]. The mutability of COVID-19 remains higher than other conditions addressed by a single
vaccine, like measles, mumps, and rubella [id. at 151-52]. With the variants of concern affecting recent numbers, and based on Dr. Beeler‘s well-reasoned explanation, the court tends not to credit Dr. McCullough‘s viewpoint that herd immunity has already been achieved.
5. On This Preliminary Record, Exempt Students Haven‘t Shown a Likelihood of Success on their Claim that Indiana University Lacks a Rational Basis for Its Vaccine Policy, Including Additional Requirements.
Six students are exempt from the vaccination mandate but challenge the additional measures of mask wearing, testing, and social distancing: Ryan Klaassen (Ex. 100 ¶ 180-81), Jaime Carini (¶ 182-95), Macey Policka (¶ 207-08), Daniel Baumgartner (¶ 196-200), Ashlee Morris (¶ 201-04), and Seth Crowder (¶ 205-06). Collectively, they argue that these requirements, oft-used over the last year, infringe on their bodily autonomy, medical
privacy, religious beliefs, and essentially become a “scarlet letter” targeting them for bullying and scorn from their peers for their medical conditions or religious beliefs.119
Indiana University first challenges this argument on a procedural ground. It says these students failed to challenge its masking or testing policies in their complaint. They cite to the well-known legal principle that “a plaintiff is the master of her own complaint,” and that courts shouldn‘t read unalleged assertions into a complaint. Thornley v. Clearview AI, Inc., 984 F.3d 1241, 1246 (7th Cir. 2021); see also Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-99 (1987). The complaint isn‘t so narrowly pleaded. It gives fair notice that the students are challenging the vaccine mandate and the policy‘s additional requirements. See
Indiana University‘s vaccine mandate is multifaceted. It requires all students, faculty, and staff to receive a COVID-19 vaccine and report their vaccination status, or to obtain an exemption and comply with the additional requirements. The university lumps the various parts of this mandate under a general “COVID-19 vaccine requirement” umbrella. For instance, on Indiana University‘s “frequently asked questions” page about its COVID-19 vaccination requirement, the section provides that vaccinations are required, the deadlines for such vaccinations, the need for students to report vaccination status, the exempted categories, and the additional requirements imposed on exempted students, along with the consequences for failing to get a vaccine [Ex. 118 at 3-6].
Because the students challenge the additional requirements under substantive due process, the court again begins by first examining the specific right
95392, 13 (D. Neb. Mar. 2, 2021) (D. Neb. May 19, 2021) (prisoner had no fundamental right to refuse having his temperature taken); Wilcox v. Lancour, 2021 U.S. Dist. LEXIS 11968, 23-24 (W.D. Mich. Jan. 22, 2021) (prisoner had no fundamental right to refuse a nasal passage test for COVID-19); Little Rock Family Planning Servs. v. Rutledge, 458 F. Supp.3d 1065, 1074 (E.D. Ark. 2020) (applying Jacobson to uphold requirement that women obtain negative COVID-19 test before medical procedure).
The court declines the students’ invitation to expand substantive due process rights to include the rights not to wear a mask or to be tested for a virus. These aren‘t rights so “deeply rooted in this Nation‘s history and tradition” and so “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quotation omitted); Khan v. Bland, 630 F.3d 519, 535 (7th Cir. 2010). These aren‘t issues of fundamental constitution import, but often transient and trivial inconveniences.
But wait, certain students say: mask wearing and testing violates their religion. The First Amendment says “Congress shall make no law . . . prohibiting the free exercise” of religion.
religion prescribes (or proscribes).” Smith, 494 U.S. at 879 (quotation omitted); accord Ill. Bible Colleges Ass‘n v. Anderson, 870 F.3d 631, 639 (7th Cir. 2017).
Indiana University‘s extra requirements fit within the neutral and generally applicable laws protected by Smith. The vaccine mandate contains an early reference to religion by way of exemption; but this isn‘t used to burden religion, but instead gives those of religious conviction the benefit of freely practicing their religious conviction to refuse the vaccine. See Listecki v. Official Comm. of Unsecured Creditors, 780 F.3d 731, 744 (7th Cir. 2015) (“A benefit to religion does not disfavor religion in violation of the Free Exercise Clause.“); see also Smith, 494 U.S. at 888 (Scalia, J.) (no exemption required). The students who received the religious exemption are subject to the same extra requirements as those who receive the medical exemption.
One may well applaud the university for going beyond what the constitution requires: courts have consistently held that schools that provided a religious exemption from mandatory vaccination requirements did so above and beyond that mandated by the Constitution. See Nikolao, 875 F.3d at 316; Phillips, 775 F.3d at 543; Workman, 419 F. Appx. at 356; Whitlow, 203 F. Supp.3d at 1084; Boone, 217 F. Supp.2d at 954. What the students request now is a religious exemption from the religious exemption, but Indiana University has no obligation to provide this. See Smith, 494 U.S. at 879.
On this record, the court finds no merit in the students’ contention that wearing masks essentially labels them with a “scarlet letter” that targets them for religious bullying. Indiana University has both medical and religious exemptions, and the same requirements are imposed on both groups. There is no evidence that any exempted
person must reveal publicly which exemption they obtained. Wearing masks thus doesn‘t signify to others that the individual religiously objects to the vaccination; they could fall within either exempted category, or they could be a vaccinated individual who chooses to take the extra (and unrequired) precaution to wear a mask. A student wearing a mask may well just be precautious in light of COVID-19 variants or because of immunosuppressing conditions. This record is devoid of any evidence of bullying or discrimination.
To be sure, there are some unique circumstances when wearing a mask could negatively impact the student‘s educational experience. For example, Jaime Carini is pursuing doctorates in organ performance and literature and musicology and, to complete her graduate program, she must perform at organ recitals [Ex. 121 at 22, 27]. She believes performing these recitals while masked will have an impact on her performance as an organist, who use their whole bodies to perform [id. 90]. Similarly, Macey Policka is pursuing a degree in theater with an emphasis on acting, and she says the mask requirement is “devastating” to her education [Ex. 125 at 41]. She says wearing a mask has a huge impact on how she can interact with other actors and will put her at a distinct disadvantage to other student actors who don‘t
The students once more assert another alleged right—this time the right to the confidentiality of their medical information—to obtain strict scrutiny. But this circuit has never recognized one‘s constitutional right to privacy to medical information. Franklin v. McCaughtry
110 F. Appx. 715, 719 (7th Cir. 2004); Rowe v. Wexford of Ind., 2021 U.S. Dist. LEXIS 31766, 3-4 (N.D. Ind. Feb. 22, 2021). This right may exist by statute, but isn‘t found in the Constitution. And this circuit recognized that such a right, if any, is minimized when in the public context. See Franklin, 110 F. Appx. at 719 (describing hospital emergency rooms, doctor‘s offices, and school infirmaries). The court declines finding such a fundamental right in the context here.
That said, the court applies rational basis review for the extra requirements of masks and testing for the exempted students. Indiana University has a legitimate interest in promoting the health and safety of its students. And the masks and testing are rationally related to achieving those measures. This is true for several reasons.
First, both vaccinated and unvaccinated people can still get the virus. Though health experts differ on the efficacy of masks in preventing the spread of COVID-19, such a dispute is left to the resolution of the policymakers, particularly when studies have shown universal mask wearing resulted in decreases in COVID rates than populations that forewent masks [Ex. 128 at 108]. And social distancing continues to be recommended by the CDC and health experts as effective at eliminating the spread of the disease.121 The students offer no sound evidence that social distancing isn‘t effective.
Second, the CDC says schools should account for students, faculty, and staff who aren‘t vaccinated.122 And it has continued to recommend masks and social distancing for
these individuals.122 This is consistent with what Indiana University has already done for a semester as well.
Third, even students who feel fine and don‘t have a fever may still have the virus as an asymptomatic individual, so the heightened precautions as to them continue to be rational.123 Despite the low mortality rates, young adults can still transmit the virus to others [Ex. 115 ¶ 10-11]. For those with milder or even asymptomatic cases, as is more prevalent in this age group, the risk of inadvertent transmission grows [Ex. 115 ¶ 53-55].
Fourth, these measures are reasonable in scope. The testing methods are reasonable for the circumstances: they plan to use a rather non-intrusive saliva test. See Banks v. United States, 490 F.3d 1178, 1189 (10th Cir. 2007) (“saliva tests impose minimal intrusions“); Padgett v. Ferrero, 294 F. Supp.2d 1338, 1342 (N.D. Ga. 2003)
Fifth, students have lived with mask mandates for over a year now, so it is nothing that is unreasonable, at least not when the risk still exists. These students have worn
masks at school, stores, work, church, and even at a casino. In other contexts, the government has lawfully mandated wearing protective gear, like a mask, when it also provides benefits to the public—like mandated bicycle helmets, hair nets, ear plugs, and any number of personal protective equipment. See, e.g., Burr v. Atty. Gen. Delaware, 641 F. Appx. 194, 196 (3d Cir. 2016) (per curiam) (seatbelt mandate held constitutional); Picou v. Gillum, 874 F.2d 1519, 1519 (11th Cir. 1989) (Powell, J.) (state statute requiring motorcycle riders to wear protective headgear was constitutional). It is no less reasonable here.
B. Irreparable Harm & Adequate Remedy at Law.
Irreparable harm is “harm that cannot be repaired and for which money compensation is inadequate.” Orr, 953 F.3d at 502 (quoting Graham v. Med. Mut. of Ohio, 130 F.3d 293, 296 (7th Cir. 1997)) (quotations omitted). To the extent that the students establish a constitutional harm, the law presumes irreparable harm. See, e.g., Cuomo, 141 S. Ct. at 67-68 (First Amendment free exercise of religion); Elrod v. Burns, 427 U.S. 347, 373 (1976) (First Amendment political association); Christian Legal Society v. Walker, 453 F.3d 853, 859 (7th Cir. 2006) (“loss of First Amendment freedoms is presumed to constitute an irreparable injury“); Ezell v. City of Chicago, 651 F.3d 684, 699 (7th Cir. 2011) (Second Amendment); Preston v. Thompson, 589 F.2d 300, 303 n.3 (7th Cir. 1978) (“The existence of a continuing constitutional violation constitutes proof of an irreparable harm.“); Doe v. Mundy, 514 F.2d 1179, 1183 (7th Cir. 1975) (right to privacy); Democratic Nat. Committee v. Bostelmann, 447 F. Supp.3d 757, 769 (W.D. Wis. 2020); Planned Parenthood of Ind. v. Commissioner, 194 F. Supp.3d 818, 835 (S.D. Ind. 2016) (presuming equal protection and substantive due process harms irreparable); 11A Wright & Miller, Federal Practice &
Procedure § 2948.1 (2d ed. 1995) (“When an alleged deprivation of a constitutional right is involved . . . most courts hold that no further showing of irreparable injury is necessary.“). That remains true only with the vaccine mandate.
That doesn‘t mean every alleged harm in this case is irreparable. A delay in collegiate or graduate education isn‘t typically irreparable harm. See, e.g., Phillips v. Marsh, 687 F.2d 620, 622 (2d Cir. 1982); Hodges v. Bd. of Supervisors, 2020 U.S. Dist. LEXIS 153949, 7 (E.D. La. Aug. 25, 2020); Pierre v. University of Dayton, 143 F. Supp.3d 703, 714 (S.D. Ohio 2015) (“[C]ourts have also held that a suspension is not irreparable.“); Baer v. Nat‘l Bd. of Med. Examiners, 392 F. Supp.2d 42, 49 (D. Mass. 2005) (inability to continue as medical student without interruption is not a harm that is irreparable to potential medical career).
Each exempted student testified that he or she wore masks on many occasions
(“inconvenience does not show that harm would be irreparable); Lewis v. Silverman, 2005 U.S. Dist. LEXIS 20347, 6-7 (N.D. Ind. Sept. 16, 2005).
Wearing masks, undergoing surveillance testing, and social distancing also aren‘t indicative of irreparable harm, but consistent with CDC guidelines [Ex. 129 at 28]. See Orr, 953 F.3d at 502 (defining irreparable harm). For these particular circumstances, the students also have an adequate remedy at law—money damages. The presumption that money is never an adequate remedy for constitutional violation is wrong. See Campbell v. Miller, 373 F.3d 834, 835 (7th Cir. 2004). Such damages would be normal and adequate to address what, even in the most severe light, to be no more than a personal injury. See id.
To be inadequate, a remedy needn‘t be “wholly ineffectual,” but it must be “seriously deficient as compared to the harm suffered.” Foodcomm Intern. v. Barry, 328 F.3d 300, 304 (7th Cir. 2003). If there were to be a constitutional injury here, the court could see that there is no adequate remedy at law if it didn‘t issue the preliminary injunction. That is less potent when the likelihood of success is so low. See Adams v. City of Chicago, 135 F.3d 1150, 1154 (7th Cir. 1998) (if court finds neither irreparable harm nor a likelihood of success, the “analysis ends and the preliminary injunction should not be issued“); Dish Network LLC v. Cox Media Grp., LLC, 2020 U.S. Dist. LEXIS 126850, 20 (N.D. Ill. July 20, 2020) (plaintiff‘s “failure to demonstrate a reasonable likelihood of success on the merits alone is enough to deny its motion“); Geneva Intern. Corp. v. Petrof, SPOL, S.R.O., 529 F. Supp.2d 932, 940 (N.D. Ill. 2007) (“Because [plaintiff] fails to demonstrate irreparable harm, we need not continue to analyze the remaining factors.“).
In short, the court presumes the students could establish irreparable harm and the absence of an adequate remedy at law, except as noted here.
C. The Balance of the Harms and Public Interest Favor Indiana University.
The balance of harms against the parties and the public interest favor denying the preliminary injunction. This is a sliding scale analysis. The court “weighs the balance of potential harms” against “the movant‘s likelihood of success.” Turnell, 796 F.3d at 662. The more likely the
To be sure, the students have a significant liberty interest in refusing unwanted medical treatment. Telling them they must take unwanted medical treatment is a significant intrusion on their liberty. And under the harm principle, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” John Stuart Mill, On Liberty 9 (1859); see Cassell, 990 F.3d at 550. If the students’ decision to refuse the vaccine affected themselves alone, the balance of harms would almost certainly weigh in favor of granting a preliminary injunction.
But the evidence reasonably shows that they aren‘t the only ones harmed by refusing to get vaccinated: refusing while also not complying with heightened safety precautions could “sicken and even kill many others who did not consent to that trade-off.” Cassell, 990 F.3d at 550. This certainly impacts the public interest: the students “are not asking to be allowed to make a self-contained choice to risk only their own health” in
making this decision—their decision necessarily bears on the health of other students, faculty, and staff. Id. The balance of harms doesn‘t weigh in the students’ favor here.
And because the students aren‘t being forced to take the vaccine against their will, the harm is demonstrably less. Though the students may have to forego a semester of school or transfer somewhere else—certainly a difficult and inconvenient choice, and not one lightly tossed aside—they have options. Other colleges in Indiana and around the nation haven‘t mandated vaccines. Indiana University says it will reassess the mandate after this semester. This mandate will also enhance the academic environment for all students, faculty, and staff by fostering in-person education and a more traditional college experience, educationally and socially. Today, based on this record, the balance of harms tilts heavily in favor of the university.
The public interest also favors denying a preliminary injunction. The court isn‘t a policymaker: that role is left to the States. On multiple occasions, the Supreme Court has “recognized the role of the States as laboratories for devising solutions to difficult legal problems.” Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787, 817 (2015) (quoting Oregon v. Ice, 555 U.S. 160, 171 (2009)); United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring) (“States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear“); New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.“). Enabling the this state
university to work through these problems reasonably fosters public health and safety in areas of scientific uncertainty. See Gonzales, 550 U.S. at 163 (citing Jacobson, 197 U.S. at 30-31) (the law gives “wide discretion to pass legislation in areas where there is medical and scientific uncertainty“); Cassell, 990 F.3d at 549 (“scientific uncertainty surrounding the pandemic further cautions against enjoining
To be sure, if the students had shown a likelihood that the university was unreasonably infringing on their constitutional rights, enjoining that violation would be in the public interest. See Joelner v. Village of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004) (“upholding constitutional rights serves the public interest“) (quoting Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003)); Ind. Fine Wine & Spirits, LLC v. Cook, 459 F. Supp.3d 1157, 1171 (S.D. Ind. 2020) (same). But this concern doesn‘t apply here because the students have a low likelihood of success.
In short, the balance of harms and the public interest favor Indiana University and the determination that it has reasonably determined the best course of action for the health of its academic community this upcoming fall semester. And in doing so, Indiana University plans to return sooner to normal operations—thus serving much more than just its academic community.
D. What This Opinion Isn‘t.
Don‘t misread it. The court is not declaring the absolute safety and efficacy of the vaccines, or for all people. People need to understand the risks, remain informed as the
science evolves, monitor the review before the FDA, and determine whether to take a vaccine. The court must decide this case on the evidence before it. The evidence today shows that the students have little chance of success: Indiana University is reasonably pursuing a legitimate aim of public health for its students, faculty, and staff.
This university policy isn‘t forced vaccination. The students have options—taking the vaccine, applying for a religious exemption, applying for a medical exemption, applying for a medical deferral, taking a semester off, or attending another university. This policy applies for the fall 2021 semester only. Students may make their choice after being advised of the risks and benefits of the vaccines, thereby giving informed consent. The court recognizes that for certain students this may prove a difficult choice, but a choice nonetheless. The choice isn‘t so coercive as to constitute irreparable constitutional harm. Although it proves a condition to attend this fall, it is reasonable under the Constitution.
This isn‘t a decision after a final trial on the merits. The court has made this decision based on evidence, testimony, and briefing that the parties produced on an emergent timetable. They and their skilled counsel should be commended for the quality of their submissions, particularly under tight demands. But not every stone has been unturned by the parties. Not every study has been hashed out or submitted for the court to read. Not every witness has testified. Although constituting more than 100 exhibits and testimony from many individuals, including proposed experts, much of which then refers the court to innumerable studies and articles that it has endeavored to review
carefully, much in these five days, this still is a preliminary record, with an opinion issued urgently given the interests of these parties.
The court also isn‘t saying Indiana University (or any other State or state entity) may do whatever it wants to address COVID-19. Given the liberty at stake for these students here, the university must act reasonably in achieving a legitimate state goal of public health. The Fourteenth Amendment‘s due process clause checks that authority. Today‘s decision doesn‘t provide carte blanche authority
The policy will no doubt evolve. The court questioned the parties about the scope of the university‘s medical exemption. The university‘s standard vaccination policy, originating from the General Assembly‘s mandate that public university students receive certain vaccinations, contains an exemption for medical contraindications,125 with support from a physician‘s statement [Ex. 229]. Whereas, curiously, the university‘s COVID-19 policy preserves medical exemptions only for allergies to vaccine ingredients,
not contraindications—ostensibly a narrower basis for exemption for an EUA vaccine than for other decades-existing vaccines.
At oral argument, Indiana University explained that, at the time of adoption, allergies proved the only contraindication and that the university has applied its medical exemption more broadly. There is some evidence for this in the record [see, e.g., Ex. 128 at 84-88]. Four physicians on the university medical team consider any requested medical exemption and work with the student‘s physician to address any immunocompromising condition (and, at times, try to educate the physician on certain pathophysiologies that aren‘t of concern) [id.]. In doing so, the university follows CDC guidance. The university thus has considered for exemption such conditions as vaccine-suppressing medications, pregnancy, steroids, chemotherapy, and organ transplants, to name a few [id. at 85-88]. In truth, the medical exemption has been applied more broadly than it is written.
Wisdom might counsel its update to reflect reality and an evolving science. Jumping on this concern, the students call the medical exemption arbitrary in oral argument. The record doesn‘t bear this out. Indeed, no matter the seeming problematic nature of a narrow medical exemption as written, it has been reasonably broad as applied [id.]. The simple truth is that none of the eight students here have sought a medical exemption with the support of a physician‘s statement to trigger this issue.
Jaime Carini says she wanted a medical exemption, but she never sought one; and she has a religious exemption that she secured in any event [Ex. 121 at 58-60, 69; Tr. 53]. She doesn‘t present facts that show the university chose to ignore a doctor‘s recommendation. Margaret Roth has legitimate concerns about taking the vaccine, but
she too hasn‘t applied for a medical exemption or been denied [Ex. 126 at 26]. Natalie Sperazza believes it unsafe, but she too provides no physician‘s statement to support this view or shows she applied for a medical exemption [Ex. 127 at 64]. A future case might raise an issue under the medical exemption, but that‘s not today‘s case. See Jacobson, 197 U.S. at 36-37 (leaving option to challenge vaccine mandate for contraindications).
CONCLUSION
Even assuming in certain respects irreparable harm and an inadequate remedy at law, the students here haven‘t established a likelihood of success on the merits of their Fourteenth Amendment due process claim, or that the balance of harms or the public‘s interest favors the extraordinary remedy of a preliminary injunction, before a trial on the merits. The court thus DENIES their preliminary injunction motion [ECF 7].
Recognizing the significant liberty interest the students retain to refuse unwanted medical treatment, the Fourteenth Amendment permits Indiana University to pursue a reasonable and due process of vaccination in the legitimate interest of public health for its students, faculty, and staff. Today, on this preliminary record, the university has done so for its campus communities. That leaves the students with multiple choices, not just forced vaccination.
One might well hale a certain Emersonian self-reliance and self-determination as preference—an unfettered right of the individual to choose the vaccine or not—but, given a preliminary record such as today‘s, the court must exercise judicial restraint in superimposing any personal view in the guise of constitutional interpretation.
Reasonable social policy is for the state legislatures and its authorized arms, and for the People to demand through their representatives.
SO ORDERED.
July 18, 2021 s/ Damon R. Leichty
Judge, United States District Court