There is a consensus among legal experts that states have the right to make vaccination passports mandatory. The main source is the 1905 U.S. Supreme Court case, which states that Jacobson v. Massachusetts Cambridge did not violate the U.S. Constitution when all adults were required to receive the smallpox vaccine. Following the same logic, the courts upheld state laws mandating vaccines for school children. But we should not expect this respect for state power to continue in the country’s current Supreme Court.
For one thing, constitutional tests for violations of personal liberty have improved over the past half century. For another, the current court is sympathetic to religious exceptions. If a large number of people refuse to be vaccinated for religious reasons, it can effectively reduce the power of any passport system.
Jacobson’s preface is definitely well established. It was written by Justice John Marshall Harlan (the first of two judges by that name) who established his position in court by disagreeing in the shameful case of Plessis v. Ferguson, who defended racial segregation. Jacobson’s judgment is based on the idea that the state has the power to protect the common good. The court held that the Constitution does not protect personal liberty unless it exceeds the state’s reasonable decision that the vaccine is required. As the Court stated, “The liberty of the United States does not imply the absolute right of every person, at all times and under all circumstances, to be completely free from restraint.”
Today, however, the Supreme Court analyzes this issue through a different framework, known as ‘rigorous scrutiny’. First, the court asks whether the fundamental rights of the individual are encroached upon by government control. If so, it asks whether there is a compulsory government interest and whether the limit is narrow to achieve that interest — using as few regulatory means as possible.
It is unknown at this time what he will do after leaving the post. True, the passport requirement is not as intrusive as the vaccine mandate. But from the point of view of the rights of the individual it can be effectively understood in the same way, especially if the passport is legally required to obtain the basics such as public transport or offices.
The current U.S. Supreme Court can certainly say that the state has a compelling interest in protecting public health and restarting the economy. Where rubber really meets the road, the question arises as to whether vaccination passports should be considered as a minimum control route to protect society from the virus.
States probably argue that vaccine passports are the only way to safely restart the economy and protect public health. Opponents argue that it is possible to restart the economy without vaccine passports. Most of the Supreme Court judges may be sympathetic to the conclusion that passports are not the minimum control ways to achieve government objectives.
Alternatively, the whole issue would be one of religious freedom. Technically, since 1981 when a state has passed a neutral, generally applicable law, the First Amendment does not guarantee religious exemption. However, today’s court may have the votes needed to change the law. According to this alternative model from 1963 to 1981, unless there was a compelling government interest to reject the exemption, the Constitution would grant a general exemption to religious dissidents. The law should also be narrow and use less regulatory means to achieve its ends.
If the court reverses the clock on religious exceptions, it can be concluded that vaccine passports — with their powerful pressure to vaccinate — are not the minimum control measures needed to protect public health. Strictly speaking, Gita’s decisions may call into question the constitutionality of current state laws that make vaccinations mandatory for school children. The court can distinguish those vaccines from the Kovid vaccine by stating that those vaccines are needed to protect children rather than the Kovid vaccine to protect the general population.
Regardless, takeaway vaccine passports are not unconstitutional, but the current Supreme Court may take a different stance than most constitutional experts. This could be a good reason for states to back down from accepting vaccine passports.
Noah Feldman is a professor of law at Harvard University.