Chapter 7.B.1: Constitutional Questions
NOTES: THE STATE POLICE POWER, FEDERALISM, FREE EXERCISE, AND THE CONTINUED VITALITY OF JACOBSON (pp. 635-642)
1. Interpreting Jacobson. For more on suspension doctrine and civil liberties, see Michele Goodwin & Allison M. Whelan, Crisis and the Constitution: The Role of Civil Liberties in Times of National Security Threat, 2025 U. Chi. Legal F. 165, 166 (using COVID-19 pandemic to analyze extent of, and potential limits to, government curtailment of civil liberties in health and security crises).
3. Executive Emergency Powers. For a general overview of state executive action during the pandemic, see Kelly J. Deere, Doing More with Less: State Public Health Emergency Powers Post-Pandemic, 17 St. Louis U.J. Health L. & Pol'y 85 (2024) (exploring the extent of state executive power after pandemic-era legislative restrictions).
4. Legislative Efforts to Constrain the Authority of Governors and the Executive Branch. In response to uses of executive emergency powers during COVID-19, the Uniform Law Commission adopted the Model Public Health Emergency Authority Act (MPHEAA) in July 2023. For a general overview of the MPHEAA’s history and creation, see Robert Gatter, The Model Public-Health Emergency Authority Act, 17 St. Louis U.J. Health L. & Pol'y 55 (2024); Paul A. Diller, Governors Slightly More Bound? A Critique of the Uniform Law Commission's Model Public-Health Emergency Authority Act, 112 Ky. L.J. 675 (2025).
For more on separation of powers challenges to governors’ pandemic responses, see Richard Briffault, States of Emergency: COVID-19 and Separation of Powers in the States, 2023 Wis. L. Rev. 1633 (analyzing state government separation of powers conflicts generated by COVID-19 responses). For an example of a state statutory authority challenge, see Snell v. Walz, 6 N.W.3d 458 (Minn. 2024) (holding that the governor had authority to declare a state of emergency under the Emergency Management Act and that the delegation was constitutional).
8. Federal Authority over Public Health. For more on the legal framework governing vaccination mandates, see James G. Hodge, Jr., Dispelling Vaccine Legal Myths, 54 J.L. Med. & Ethics 111 (2026) (describing and debunking legal myths relating to vaccines); Lars Noah, Eliding Consent in the Case of Pandemic Countermeasures Authorized Only for Emergency Use, 58 Ind. L. Rev. 83 (2024) (arguing that “option to refuse” provision in federal emergency use authorization statute presented a legitimate statutory obstacle to mandating COVID-19 vaccines before full FDA approval and critiquing courts’ dismissals of these claims).
NOTES: VACCINATION AND THE CONSTITUTION (pp. 642-644)
1. Jacobson and Vaccination. A panel of the Ninth Circuit Court of Appeals considering a substantive due process challenge to a school district’s COVID-19 vaccine mandate for employees initially held that Jacobson v. Massachusetts did not control where the contested vaccine did not actually prevent transmission or contraction of the disease. Health Freedom Defense Fund, Inc. v. Carvalho, 104 F.4th 715 (9th Cir. 2024), vacated and reh’g en banc granted, 127 F.4th 750 (9th Cir. 2025). The Ninth Circuit, sitting en banc, affirmed that Jacobson remained binding authority regarding judicial deference to the reasonable determinations of public health authorities. Health Freedom Defense Fund, Inc. v. Carvalho, 148 F.4th 1020 (9th Cir. 2025) (en banc). The court found that:
Jacobson thus applies to vaccination requirements regardless of whether such vaccines actually provide immunity and prevent the spread of disease or whether they provide no immunity and merely render COVID-19 less dangerous to those who contract it, so long as policymakers could reasonably conclude that the vaccines would protect the public's health and safety.
Id. at 1032.
For more information about the intersection of the Constitution and public health policies, see Wendy E. Parmet, Constitutional Contagion: COVID, the Courts, and Public Health (Cambridge Univ. Press 2023).
2. Compulsory Vaccination and Religious or Philosophical Objections. Federal courts have continued to hear claims that the First Amendment’s Free Exercise Clause requires states to offer religious exemptions from vaccination requirements. Compare We The Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, 76 F.4th 130 (2d Cir. 2023) (upholding Connecticut’s repeal of religious exemption as neutral and generally applicable despite retention of medical exemption), cert. denied, 144 S. Ct. 2682 (2024), with Does 1-11 v. Board of Regents of University of Colorado, 100 F.4th 1251 (10th Cir. 2024) (plaintiffs likely to succeed on the merits and entitled to preliminary injunction against university’s COVID-19 vaccine mandate under the Free Exercise clause where university policy made distinctions between types of religious beliefs and where secular medical exemptions were accorded more favorable treatment).
The First Amendment also protects the related right of parents to control the religious upbringing of their children. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Supreme Court held Amish parents were entitled to an exemption from laws requiring children to enroll in school beyond the eighth grade under the First Amendment’s Free Exercise Clause because continued school attendance would be inconsistent with the parents’ religious beliefs. In 2025, the Supreme Court again considered the intersection between school policy and parents’ religious beliefs. In Mahmoud v. Taylor, 606 U.S. 522 (2025), the Court held that parents were likely to succeed in their First Amendment Free Exercise challenge to a public school board’s refusal to provide notice and an opportunity to opt out to parents when “‘LGBTQ+-inclusive’” books would be taught to their children. Id. (reversing lower court’s refusal to enter a preliminary injunction permitting children to opt out). Yoder and Mahmoud’s potential implications for school vaccine mandates have been considered by two different courts of appeal.
First, the Fourth Circuit reversed a lower court’s order for a preliminary injunction and upheld West Virginia’s compulsory vaccination statute, which permitted medical but not religious exemptions, as a neutral and generally applicable law with objective medical-exemption criteria that did not permit discretionary, individualized exemptions. Perry v. Marteney, 172 F.4th 315 (4th Cir. 2026). The court considered but distinguished Mahmoud v. Taylor, noting that:
The burden imposed by West Virginia’s compulsory vaccination law is not remotely “of the same character” as those imposed in Yoder and Mahmoud. The law is a public health measure, not an instrument of ideological indoctrination. It does not expose children to values or beliefs that might be hostile to their parents’ religious beliefs. It does not require that school instruction extoll the virtues of vaccines. All the law requires is that, in the interest of protecting others, children get themselves vaccinated before attending school. The need for some to protect the health and well-being of all was not present in Yoder or Mahmoud.
Id. at 327 (citation omitted).
The Second Circuit initially rejected free exercise claims brought by Amish families challenging New York’s repeal of its religious exemption, but the Supreme Court vacated the decision and remanded for consideration in light of Mahmoud. Miller v. McDonald, 130 F.4th 258 (2d Cir. 2025) (per curiam), cert. granted, vacated, and remanded, 146 S. Ct. 879 (2025) (mem.). The Supreme Court’s decision marked the first time the Court had set aside a lower court judgment upholding a vaccine mandate that did not have a religious exemption. See Zalman Rothschild, Vaccines, Religious Liberty, and the GVR As Doctrinal Signal, 139 Harv. L. Rev. F. 285 (2026) (discussing implications of Supreme Court’s “GVR” [grant, vacate, remand] in Miller). On remand, the Second Circuit, citing Jacobson v. Massachusetts (excerpted in the HCLE casebook at p. 625) and Perry v. Marteney, supra, among other authorities, again affirmed the district court’s dismissal of the parents’ claims and its denial of a preliminary injunction. Miller v. McDonald, 180 F.4th 420 (2d Cir. 2026).
3. State Vaccination Policies. Another state has joined Florida in prohibiting vaccine mandates and similar policies. See Idaho Code §§ 73-501 to -504 (Idaho Medical Freedom Act).
New Note 5. Federal Vaccine Policy Upheavals. Recommendations from the CDC’s Advisory Committee on Immunization Practices historically have been very influential for states considering vaccination mandates and for coverage determinations by insurers. In June 2025, HHS Secretary Robert F. Kennedy, Jr. removed and replaced all of the members of the ACIP. HHS, HHS Takes Bold Step to Restore Public Trust in Vaccines by Reconstituting ACIP (June 9, 2025), https://www.hhs.gov/press-room/hhs-restore-public-trust-vaccines-acip.html. A district court partially granted motions for a preliminary injunction and stay relating to this and other immunization-related administrative decisions in American Academy of Pediatrics v. Kennedy, 823 F. Supp. 3d 141 (D. Mass. 2026). The decision is being appealed. For an academic commentary on the changes in federal policy, see James G. Hodge, Jr., Legal Underpinnings of the Great Vaccine Debate of 2025, 53 J.L. Med. & Ethics 171 (2025).