116-year-old court ruling is challenge for Rutgers vaccine lawsuit

By: - August 19, 2021 6:24 am

Rutgers was the first New Jersey college to announce it would require its students to vaccinate before returning to campus in the fall. (Getty Images)

A lawsuit seeking to overturn Rutgers University’s vaccine mandate faces grim odds and court precedent that dates back more than a century.

The federal complaint alleges the school’s mandate violates protections against unwanted medical treatment provided by the 14th Amendment and other constitutional rights. The plaintiffs are Children’s Health Defense, a nonprofit headed by anti-vaccine activist Robert F. Kennedy Jr., and 12 students who have enrolled or are matriculating at Rutgers.

“This mandate undermines our Constitution and Bill of Rights by denying students the freedom to make their own medical decisions,” said Mary Holland, the group’s president and general counsel. “No one should be forced or coerced into accepting any medical procedure against her wishes.”

The complaint was first reported by NJ Advance Media.

The U.S. Supreme Court earlier this month declined to take up a similar case lodged by students at Indiana University, letting stand a federal appellate court ruling upholding that school’s vaccine mandate.

U.S. Circuit Court Judge Frank Easterbrook, who was on the bench during the appeal, wrote the students were not required to attend the university and could simply “go elsewhere.”

That decision cited Jacobson v. Massachusetts, a 1905 U.S. Supreme Court ruling that allowed the state to fine individuals who declined smallpox vaccines. Pastor Henning Jacobsen argued he had a constitutional right to avoid a Massachusetts mandatory vaccination law.

The precedent lends significant strength to a potential Rutgers defense, said Jennifer Oliva, director of Seton Hall University’s Center for Health and Pharmaceutical Law.

“Jacobsen was quite straight forward,” she said. “It was a criminal case. The pastor didn’t want to get vaccinated. There were no exceptions for adults, and since 1905, when the case was decided, vaccine mandates have been held up by virtually every court that’s looked at it, so it’s easy on that front.”

Children’s Health Defense’s suit claims that precedent only allows the Legislature and governor to impose vaccine rules, not universities.

“The university’s position on vaccines is consistent with the legal authority supporting this policy,” a Rutgers spokesperson said.

Rutgers was the first New Jersey college to announce it would require its students to vaccinate before returning to campus in the fall.

Its policy includes exemptions for students with medical or religious reasons preventing vaccination, while students who enrolled only in online or off-campus courses are not required to be immunized against COVID-19 as long as they have no on-campus presence.

Students granted exemptions on medical or religious grounds are barred from living in on-campus dormitories, a rule the suit claims is discriminatory.

The plaintiffs also claim rules requiring the students to be masked in indoor and crowded settings is discriminatory. The school requires individuals wear masks in almost all indoor settings.

Vaccination requirements are nothing new for Rutgers. The school already requires students be immunized against hepatitis B, measles, mumps, and Rubella, among others.

Rutgers isn’t alone in mandating vaccinations, either. Kean University, Montclair State University, Princeton University, and others are requiring students — and in some cases faculty and staff — be immunized against COVID-19.

The main difference between those vaccines and immunization agents for COVID-19 are approvals from the Food and Drug Administration. COVID-19 vaccines are administered under an emergency-use authorization and have not won full FDA approval, but that might be of little aid to vaccine opponents.

“Really, it’s a distinction without a difference when it comes down to universities and employers,” Oliva said. “There’s nothing in the EUA language that suggests that employers and universities can’t behave like they always have.”

The Department of Justice last month issued guidance that says “federal law does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to emergency use authorizations.”

If the suit focuses on emergency use authorizations, Oliva said, “there’s virtually no question that Rutgers is going to win the case.”

Monmouth University and Rowan University allow students to forgo vaccination but requires such individuals submit to weekly virus testing and wear masks when indoors.

The suit makes other claims, including ones alleging the government, media outlets, and social media have suppressed information about COVID-19 treatments using drugs like hydroxychloroquine, an anti-malarial championed by former President Donald Trump, that have ultimately been ineffective at managing the virus.

This isn’t Kennedy’s first foray into New Jersey politics. He was involved in large-scale protests that killed a bill that would have nixed nearly all vaccine exemptions at the tail end of the previous legislative session, and he headlined a fundraiser for anti-vaccine Assemblyman Jamel Holley (D-Union), who lobbied against the bill.

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Nikita Biryukov
Nikita Biryukov

Nikita Biryukov most recently covered state government and politics for the New Jersey Globe. His tenure there included revelatory stories on marijuana legalization, voting reform and Rep. Jeff Van Drew's decamp to the Republican Party. Earlier, he worked as a freelancer for The Home News Tribune and The Press of Atlantic City.