This essay first appeared in the August 26, 2021 Epoch Times.

During the 20th century, the Supreme Court created new constitutional rights not mentioned in the Constitution’s text, primarily by claiming those rights were inherent in the 5th and 14th Amendment Due Process Clauses. They included rights to privacy, autonomy, and bodily integrity.

In accordance with those new precedents, citizens have asked the courts for protection against oppressive pandemic restrictions. Yet the courts have dismissed most of their cases, relying on an old Supreme Court decision largely superseded by the newer precedents.

A recent example of this treatment was Justice Amy Coney Barrett’s refusal—without referring the case to her Supreme Court colleagues—to put on hold a vaccination mandate issued by Indiana University, a state institution.

Before proceeding further, let me clarify: I agree that during pandemics the states’ “police power” (governance authority) is very broad. I have been vaccinated against the CCP virus, and I believe most people probably should be. Nor am I a fan of the Supreme Court inventive 20th century jurisprudence.

But the current Supreme Court generally has been upholding that jurisprudence, so those challenging pandemic restrictions have a right to rely on it.

The older case that judges have been citing in preference to more recent decisions is Massachusetts v. Jacobson, decided in 1905 (pdf). For reasons explained below, Jacobson has been superseded by the Supreme Court’s later cases. But even if Jacobson were still good law, it’s a weak precedent for requiring universal COVID-19 vaccinations.

The facts of the Jacobson case were as follows: The Massachusetts legislature passed a law authorizing cities to require inhabitants to be vaccinated against smallpox. The city of Cambridge issued such an order. The state prosecuted Jacobson for refusing to be vaccinated. Both the highest court of Massachusetts and the U.S. Supreme Court upheld the law as a reasonable exercise of the state’s “police power.”

But the mandate upheld was for vaccination against smallpox. Smallpox is far more deadly than COVID-19. It’s lethal for all demographic groups, and even when it doesn’t kill, it leaves permanent scars. COVID-19 is not dangerous to the overwhelming majority of the healthy college students targeted by the Indiana University mandate.

In addition, the risks of vaccination for smallpox and COVID-19 are different. As the court’s opinion in Jacobson pointed out, by 1905 the world already had a century of experience with the smallpox vaccine: It had proved effective against the disease and safe for nearly everyone. With the COVID-19 vaccine, we have had very brief experience. No one knows how long it will be effective and what long-term side effects, if any, it may have.

From the foregoing, it’s clear that in the case of COVID-19 (unlike smallpox), there are different decisional factors for people of different ages. In the case of COVID-19, an older person risks serious illness or death if he remains unvaccinated. But if he is vaccinated, he has little to fear from long-term side effects because he likely won’t live long enough to experience them. On the other hand, the typical college student is not in serious danger if he remains unvaccinated. If he is vaccinated, he might suffer from long-term side effects now unknown.

In sum, it would have made more sense for Indiana University to mandate jabs for older faculty and staff while offering them on a voluntary basis for younger people.

Justice Harlan’s opinion in Jacobson itself informs us that we must not take his ruling too far. Justice Harland strongly suggested that in cases where a vaccination requirement was “arbitrary and oppressive,” it would not be constitutional because it would violate the 14th Amendment’s Equal Protection Clause. And certainly you could call a mandate targeted at people who are not at risk “arbitrary and oppressive.” So even if Jacobson were still good law, it would not be firm precedent for mandatory COVID-19 vaccination.

However, Jacobson is no longer good law. Modern precedents throw a cloud—or rather a monsoon—over it. Jacobson held that a state may, in the performance of its police power, limit individual freedom if the government acts “reasonably.” But for most constitutional rights, the Supreme Court has not used that standard for at least 80 years.

The modern rule is that a government action is unconstitutional if it violates a person’s privacy, personal autonomy, or bodily integrity—unless the action survives one of several much tougher tests. It’s not enough for a vaccination mandate to be reasonable. It must be tailored to the task, and if there are less intrusive ways of fighting COVID-19, then they should be employed instead.

The court of appeals ruling in the Indiana University case (pdf) exemplifies the defects in some of the decisions dismissing challenges to COVID-19 rules.

In addition to a mechanical reliance on the Jacobson case, the court of appeals relied on the fact that Indiana University provided exemptions for health and religious reasons. But in this country, we do not need government permission to exercise constitutional rights. The court added that, “People who do not want to be vaccinated can go elsewhere.” But a government entity may not deny services to a person for properly asserting constitutional rights. Finally, the court said that non-vaccination was not “a fundamental right engrained in the American tradition.” But for cases like this, the Supreme Court abandoned the “engrained in the American tradition” requirement years ago. Modern jurisprudence protects the right to commit sodomy, for example, even though such a right was never “engrained in the American tradition.”

Why do the courts protect some claims to bodily integrity, autonomy, and privacy, but not others? Consider this hypothetical situation:

Suppose the trustees of Indiana University are determined to protect human life from causes besides COVID-19. They announce that prospective students must sign a pledge not to have an abortion or encourage another to have an abortion while enrolled at the university. The university grants an exemption only if a student shows that (1) pregnancy would be medically dangerous to her or (2) the student is a member of a religion requiring abortion. Those who refuse to sign are told they are free to enroll elsewhere.

If challenged in court, how many minutes do you think such a policy would survive?

Answer: Not very many.

The key to the difference lies in the fact that some rights further liberal political goals and others do not.

Ironically, the court of appeals decision in the Indiana University case was written by Judge Frank Easterbrook, who is generally considered libertarian or conservative. Even so, his decision reflects the bias of the federal judiciary. Part of that bias is that those rights liberals favor are placed in, as the Supreme Court expresses it, a “preferred position.” The rights favored by everyone else can be more readily trampled.