Written by: Harli Sesser
As the COVID-19 delta variant continues to threaten post-pandemic rebound, the widely accessible vaccine continues to inspire the implementation of “vaccine passports” in the United States. New York announced earlier this month that it would require people to show proof of vaccination to enter businesses. Additionally, on August 14, 2021, the United States Supreme Court rejected an emergency petition to block Indiana University’s requirement that students be vaccinated against the COVID-19 virus, ultimately upholding the school’s policy.
The purpose of requiring vaccination passports is to prevent and reduce the transmission of COVID-19. Requiring these passports would limit access to certain establishments, activities, functions, and events to only vaccinated individuals. As a result, many people see some form of vaccine credentials as a critical tool for normalcy, while others consider them unconstitutional discrimination that forces people to sacrifice fundamental liberties. Thus, the question remains, are vaccination passports constitutional?
The United States Supreme Court precedent has repeatedly upheld schools’ and state’s requirements that exclude or penalize those who do not receive certain vaccinations. Therefore, the essential question is not whether vaccination passports are allowed but if they are required. If they are indeed mandatory, the Constitution entitles vaccinated people to receive exemptions from many COVID restrictions.
What is a Vaccine Passport?
A “vaccine passport” is an electronic or paper record showing an individual’s vaccination status. Holders of a vaccine passport can live their lives with little to no restrictions. However, those without a vaccine passport will face significant restrictions until herd immunity arrives. While New York was the first to introduce a COVID-19 vaccine certification with its Excelsior Pass that allows individuals to certify their vaccination status to gain access to social activities, governors in other states, such as Florida and Texas, have stated they are firmly against vaccine passports.
Are Vaccine Passports Constitutional?
In the 1905 Supreme Court case, Jacobson v. Massachusetts, the Supreme Court held that the city of Cambridge did not violate the Constitution when it required all adults to get the smallpox vaccine. Justice John Marshall Harlan wrote the opinion, which 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.
An analysis under today’s legal framework is different. Under the U.S. Constitution, the government may not infringe on fundamental rights unless the policy is “the least restrictive means” to achieve a compelling government interest. Thus, the Supreme Court would first analyze the issue using strict scrutiny and ask whether government regulation implicated the individual’s fundamental rights. If so, the Court would 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.
While requiring a passport is arguably not as intrusive as mandating vaccination, one argument is that both intrude on an individual’s rights, especially regarding the freedom to travel, where the passport may be legally necessary for access to basic public transportation. As to the compelling governmental interest, the Supreme Court may hold that the state has a compelling interest in revitalizing the economy and protecting public health against COVID-19. However, are vaccination passports the least restrictive means to safeguard the community against the virus?
Opponents of vaccine passports would argue that it is possible to restart the economy without vaccine passports. Another argument is that the FDA sanctioned the vaccines under an Emergency Use Authorization (“EUA”). Under an EUA, the FDA acknowledged that the vaccines were fast-tracked and not subjected to the standard regulatory process. To date, the vaccines are not federally approved or licensed.
However, only the lowest level of constitutional scrutiny (rational basis) is triggered when the government treats people differently based on whether they have taken some action. With the lowest level prompted, the government need only provide a rational reason to justify the distinction. In returning to the 1905 Supreme Court case Jacobson v. Massachusetts, U.S. courts have upheld law targeted to protect the common good.
The Light at the End of the Tunnel?
As the delta variant surges, we will continue to see mounting pressure to implement vaccine passports and vaccine mandates that can impact individual rights. However, as evidenced in Jacobson and the Supreme Court’s recent rejection in Klaassen v. Trustees of Indiana University, the articulated view is that people are subject to reasonable regulations to protect public health, even when such policies may interfere with individual rights.