Today, Justice Amy Coney Barrett of the U.S. Supreme Court denied Indiana University students’ request for a temporary injunction pending the resolution of their challenge to the university’s COVID-19 vaccination mandate. A good friend, Brian Festa of We The Patriots USA, and I had predicted this outcome since their case made its way to 7th Circuit. Justice Barrett did not refer the case to the rest of the justices for input, and renowned Judge Frank Easterbrook issued a scathing opinion denying their application at the 7th Circuit.
As someone who represents parents challenging school vaccination mandates and who has been featured on Fox News for helping college students fight their universities’ vaccination mandates, I have to say that I am not surprised by Justice Barrett’s action. Her decision does not mean that she betrayed the cause of liberty or became faithless to the U.S. Constitution. It also does not mean that challenges to vaccination mandates will be dead on arrival now. It merely reflects a legal reality.
Indiana University apparently grants religious and medical exemptions from its COVID-19 vaccination mandate, and some of the students in this lawsuit have reportedly received such exemptions. The only challenge left for the students to bring was to challenge a state university’s authority to force them to receive a medical treatment. I have a similar challenge pending in court right now.
The legal reality is that the current state of law and the procedural posture of this case did not merit relief from the U.S. Supreme Court. Jacobson v. Massachusetts and Zucht v. King – Supreme Court cases from the early 1900s – grant schools the authority to impose vaccination mandates against secular objections. While those cases cannot be reconciled with the Supreme Court’s more modern bodily autonomy and medical freedom precedents, they still provide the controlling rule of law on a motion for an injunction pending full resolution of a case.
On a motion for an injunction pending the outcome of a case, the applying party has the burden of proving that they will likely prevail on the merits of their case by pointing to existing Supreme Court cases. Churches have done that and succeeded before the United States Supreme Court this year and last year. The Indiana University students, however, had very little chance of doing that here based on the Jacobson and Zucht decisions. Thus, it comes as no surprise to me that Justice Barrett followed established Supreme Court practice and dismissed their application as being unworthy of the Court’s attention.
Make no mistake. As a matter of law, I agree with the arguments that the Indiana University students made, and I have advanced similar arguments on behalf of my clients. I hoped against hope that they would somehow prevail, but I knew in my heart that they would not at this stage. Their failure does not mean that every person who turns to the courts will fail though.
Clearly established law indicates that, if Indiana University had denied religious and medical exemptions, the Supreme Court likely would have granted the students’ application for a preliminary injunction. I represent clients who will be bringing exactly such an application. My message to them as well as to the rest of those whose faith is under attack is as follows: “Fear not. There’s more than a little hope left for you right now. I am confident that we will prevail.”
With respect to the Indiana University students, they will return to the district court to fully litigate their claims. They will have an opportunity to be heard fully on the merits, and I hope that they will return to the U.S. Supreme Court again on this issue if someone else does not make it there first and establish controlling law in their favor. They are right as a matter of precedent and logic.