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State vaccine mandates likely to be upheld, despite dozens of legal challenges

A vaccine record card
Mitch Teich

New York State’s vaccine mandate for healthcare workers took effect Monday, amid a legal challenge over religious exemptions to the requirement.

Dozens of other legal challenges have been mounted against vaccine mandates around the country. However, when it comes to evaluating the legality of vaccine mandates, the government is not the same as a private employer.

Companies have wide latitude to mandate vaccines based on their values and operational needs, as long as they comply with Equal Employment Opportunity laws.

"Numerous large companies including Tyson Foods, United Airlines, Facebook, Google, Disney, Walmart, very large companies are implementing requirements to get vaccinated," noted Jennifer Piatt, an attorney with the Network for Public Health Law.

The authority to set and enforce public health rules isn’t specifically mentioned in the U.S. Constitution. Under the10thAmendment, that generally means it’s a power left for state governments.

Piatt said two U.S. Supreme Court Cases, one in 1905 and another in 1922, made that power official.

"Those two cases spelled out that states have the authority via their police powers to implement vaccine mandates."

She said that makes it "highly likely" COVID-19 vaccine mandates at the state and local level will be broadly upheld in court.

But that doesn’t mean all legal challenges to mandates will fail. Some narrowly object to specific parts of a vaccine requirement, like New York not allowing religious exemptions to its mandate. Cases in other states focus on whether a vaccine with only emergency use authorization can be required.

Piatt says the U.S. Supreme Court could use one of those cases to establish new limits on states’ authority.

"Whether the Supreme Court will want to take up cases that now wrap in emergency use authorization into the argument or that are articulating, you know, religious freedom based arguments that they want to specifically address that is totally up to the court," she noted.

Some states have gone in the opposite direction, banning orrestricting vaccine mandates.

The Biden Administration recently waded into the legal debate, announcing a series of vaccine requirements that could cover as many as 100 million Americans. The federal government’s power to order vaccine mandates is legally much murkier and will likely be settled in court.

All told, Jennifer Piatt estimates there are at least 50 vaccine mandate cases already working their way through state and federal court systems. A decision in the religious freedom casechallenging New York’s healthcare worker vaccine mandate is expected by Oct. 12.

Ryan Finnerty is producer on Hawaii Public Radio's local public affairs talk show The Conversation where he reports on local and state politics, business, economics, science, and the environment. Before coming to Hawaii Public Radio, Ryan was an officer in the U.S. Army stationed at Schofield Barraks on Oahu. He graduated from the University of Vermont with a degree in economics.