A lawyer representing Indiana University students asked the Supreme Court Friday to block the school’s vaccine mandate that is set to take effect this fall while the appeals process plays out.
The filing marks the first time the justices have been asked to weigh in on the issue as private and public entities are increasingly requiring vaccines in the wake of a new surge of the virus caused by the Delta variant.
The university requires students to be vaccinated unless they qualify for exemptions. If they are exempted, they must wear masks and undergo testing twice a week.
“IU is coercing students to give up their rights to bodily integrity, autonomy, and of medical treatment choice in exchange for the discretionary benefit of matriculating at IU,” James Bopp, a lawyer for the students, told the Supreme Court in an emergency petition asking the justices to act by August 13.
Bopp said the students’ refusal is “based on legitimate concerns including underlying medical conditions, having natural antibodies, and the risks associated with the vaccine.”
Lower courts have ruled against the students, citing a Supreme Court decision from 1905 which held that a state may require vaccines against smallpox.
A panel of judges on the 7th US Circuit Court of Appeals, all Republican appointees, said that vaccination requirements “have been common in this nation” and stressed that the IU policies allow exemptions for those who have medical issues related to the vaccine or religious objections.
“These plaintiffs just need to wear a mask and be tested, requirements that are not constitutionally problematic,” the court held, and added that vaccination is a condition for attending the university. Those who do not want to be vaccinated may “go elsewhere.”
“A university will have trouble operating when each student fears that everyone else may be spreading diseases,” the court held. “Few people want to return to remote education – and we do not think that the Constitution forces the distance-learning approach on a university that believes vaccination (or masks and frequent testing of the unvaccinated) will make in-person operations safe enough.”
The Supreme Court will likely ask the university for its response.
Last week, IU spokesperson Chuck Carney told CNN that it “remains confident” that it will ultimately prevail because of a legitimate public health interest in assuring the safety of our students, faculty and staff.”
CNN’s Paul Murphy contributed to this report.