This Supreme Court Isn't Going to Like Vaccine Passports

(Bloomberg Opinion) -- The consensus among legal experts seems to be that states have the right to mandate vaccine passports. The main basis is a 1905 Supreme Court case, Jacobson v. Massachusetts, which held that the Constitution wasn't violated when the city of Cambridge required all adults to get the smallpox vaccine. Following the same logic, courts have upheld state laws mandating vaccines for schoolchildren.

But we should not assume that this deference to state power would continue under the current Supreme Court.

For one thing, the constitutional tests for infringements on personal liberty have been refined in the last half century. For another, the current court is deeply sympathetic to religious exemptions. If large numbers of people decline vaccination on religious grounds, it would effectively undermine the power of any passport system.

The Jacobson precedent is certainly well established. It was written by Justice John Marshall Harlan (the first of two justices of that name), who established his place in the court's pantheon by dissenting in the shameful case of Plessy v. Ferguson, which upheld racial segregation.

The Jacobson ruling rested on the idea that the state has the power to protect the common good. The court held that the Constitution does not protect individual liberty so much as to override the state's reasonable decision to require vaccination. As the Court put it, “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”

Today, however, the Supreme Court would analyze the issue through a different framework, one known as “strict scrutiny.” First, the court would ask if the individual's fundamental rights were implicated by a government regulation. If so, the court would then ask whether there was a compelling governmental interest and whether the restriction was narrowly tailored to achieving that interest — using the least restrictive means possible.

It is probable, although not absolutely certain, that the court would treat a vaccine passport as implicating a fundamental right to make healthcare decisions for one's own body. True, requiring a passport isn't quite as intrusive as mandating vaccination. But it could be understood as effectively the same from the standpoint of the individual's rights, especially if the passport were legally necessary for access to basics like public transport or workplaces.

The current Supreme Court would almost certainly hold that the state has a compelling interest in protecting public health against Covid-19 and restarting the economy. Where the rubber really meets the road, then, would be the question whether vaccine passports count as the least restrictive means to protecting the community against the virus.

States would, presumably, argue that vaccine passports are the only way to safely restart the economy and protect public health. Opponents would argue that it's possible to restart the economy without vaccine passports. A majority of the Supreme Court justices might well be sympathetic to the conclusion that the passport is not the least restrictive means to achieve the government's objectives.

Alternatively, the whole issue could play out as one of religious freedom. Technically, it's been the law since 1981 that when a state passes a neutral, generally applicable law, the First Amendment does not guarantee a religious exemption. Nevertheless, today's court probably has the votes needed to change the law. Under this alternative model, which prevailed from 1963 to 1981, the Constitution would grant a general exemption to religious dissenters unless there is a compelling government interest to deny the exemption. And again, the law would also have to be narrowly tailored and use the least restrictive means to achieve its ends.

If the court were to turn back the clock on religious exemptions, it could easily conclude that vaccine passports — with their powerful pressure to vaccinate — are not the least restrictive means necessary to protect public health.

To be sure, decisions of either stripe could call into question the constitutionality of existing state laws that mandate vaccines for schoolchildren. Potentially the court could distinguish those vaccines from the Covid vaccine by saying those vaccines are more necessary to protect children than is the Covid vaccine to protect the general population.

Regardless, the takeaway is not that vaccine passports are unconstitutional, but rather that the Supreme Court as currently composed might take a very different attitude than the view held by most constitutional experts. That alone might be a good reason for states to hold back from adopting vaccine passports.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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