Legal precedent makes anti-mandate lawsuits a longshot

Coronavirus

SCOTUS ruled in 1905 smallpox vaccine mandates allowed

PORTLAND, Ore. (KOIN) — If you’re a teacher, health care worker or state employee and have not yet been vaccinated against COVID-19, it’s too late — unless you have an exemption.

In both Oregon and Washington, teachers and health care workers are required to be fully vaccinated by October 18. This meant Monday, October 4 was the last day for individuals to either get their second dose of a Pfizer or Moderna vaccine — or the single-dose Johnson & Johnson shot — to be considered fully vaccinated in time.

There are some lower-level court cases in Oregon with people taking the issue before a judge. Lewis and Clark law professor Jim Oleske thinks that number will grow — but he doesn’t think they will succeed.

Historically, he saw, there is a strong precedent for vaccine mandates. In 1905 the US Supreme Court upheld a ruling mandating the smallpox vaccine. Oleske said in more recent history states have removed religious exemptions in the name of public health.

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“Most vaccine mandates historically in the United States, not all but most of them, had religious accommodation provisions built into them but a number of states got rid of them,” Oleske told KOIN 6 News. “In the 5 years before COVID that removal of those exemptions got challenged and the states actually won those cases so the court said, you know, they can provide exemptions, but they’re not obligated to provide exemptions.”

Mostly this is done in the name of public health if leaders don’t think herd immunity could be achieved without removing those exemptions, he said. But he added a state or government agency can’t tell you your religious belief is unreasonable and therefore illegitimate.

But the skepticism out there, Oleske said, is that some people could take advantage and just repack a political belief and label it religious.

The current Supreme Court seems to be friendly to religious exemption. Still, Oleske doesn’t think the lawsuits against a vaccine mandate are likely to win.

“At the end of the day, because of that harm to others dynamic we’re talking about, I tend to think that there won’t be 5 votes on the Supreme Court to grant a right, a constitutional right, to be exempt from vaccine mandates.”

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