Spotlight on School Vaccine Mandates and Policymaking in the Courts: Part One of Two

This is the first of a two-part series on litigation challenging school vaccine mandates. The fate of vaccines is much on the minds of everyone who is concerned with public health. With a new administration about to begin, a great deal of focus has been, rightfully, on who will lead federal government agencies charged with protecting the public’s health. But PHLW would like to remind everyone, once again, that courts play a significant, often decisive, role in forming policy. Part 1 of this series uses the story of school vaccine mandates in Mississippi to illustrate how.

Mississippi School Vaccine Mandates

In 1972, the Mississippi state legislature enacted a school vaccine mandate that required students to provide proof of vaccination before they could attend school. The law provided a medical exemption on the following terms: 

A certificate of exemption from vaccination for medical reasons may be offered on behalf of a child by a duly licensed physician and may be accepted by the local health officer when, in his opinion, such exemption will not cause undue risk to the community (emphasis added).

In 1979, the Supreme Court of Mississippi heard a case in which the plaintiff claimed the state’s vaccine mandate went against his sincerely held religious beliefs, and that his rights under the First Amendment Free Exercise clause required that the state provide him with a religious exemption from the mandate. 

The Mississippi Supreme Court noted that vaccine mandates without religious exemptions had been constitutionally valid since the U.S. Supreme Court’s decision in Jacobson v. Massachusetts in 1905. That is unremarkable since, until recently, the rule in Jacobson had not been seriously questioned. But the way the court framed the legal question before answering it is notable: 

The fundamental and paramount purpose of the [school vaccine mandate] was to afford protection for school children against crippling and deadly diseases by immunization. That this can be done effectively and safely has been incontrovertibly demonstrated over a period of a good many years and is a matter of common knowledge of which this Court takes judicial notice.

If the religious exemption from immunization is to be granted . . . to individuals whose private or personal religious beliefs will not allow them to permit immunization of their children . . . the highly desirable and paramount public purpose of the Act, that is, the protection of school children . . . is defeated.

Is it mandated by the First Amendment to the United States Constitution that innocent children, too young to decide for themselves, are to be denied the protection against crippling and death that immunization provides because of a religious belief adhered to by a parent or parents?

The court’s characterization of the legal question is notable in at least three respects. First, the court considered the real-world effects of its decision, and it took the health and well-being of school children seriously. Second, the court took judicial notice of the effectiveness of vaccines in protecting the health and well-being of school-aged children. In other words, the court accepted the science and data. Finally, while recognizing that the U.S. Constitution protects the right to practice one’s religion, the court clearly understood that the right was not absolute. In fact, the court noted that “[i]n cases too numerous to mention, it has been held, in effect, that a person's right to exhibit religious freedom ceases where it overlaps and transgresses the rights of others.”

The court considered the right to be free from unnecessary exposure to dangerous infectious diseases to have weight against Free Exercise rights claims. Free Exercise rights did not automatically invalidate policy choices that impinged on them. The court also noted that the plaintiff’s Free Exercise claims was in potential conflict with the Equal Protection Clause because “[t]he . . . exemption of children of parents whose religious beliefs conflict with the immunization requirements, would discriminate against the great majority of children whose parents have no such religious convictions.” Thus, the court found it entirely possible to acknowledge that a constitutional right was implicated by a policy choice without being compelled to decide that the policy had to give way to the rights claim.



Mississippi has kept its strict school vaccine mandate despite persistent, decades-long lobbying efforts by anti-vaccine mandate groups like Mississippi Patriots for Vaccine Rights and Medical Freedom. Neighboring states have experienced measles outbreaks but, as of 2023, Mississippi had “not reported a single case originating in the state in decades.” 

Recent Supreme Court cases opened the door for vaccine mandate opponents to mount fresh litigation challenges. Our colleagues at the Network for Public Health Law have written about The Legal Landscape of Religious Exemptions to School Vaccination Requirements, which discusses these cases in depth. In Mississippi, on September 2022, the Texas-based Informed Consent Action Network (ICAN) funded a lawsuit by Mississippi parents, Borsage v. Edney, alleging that these recent Supreme Court cases now require that Mississippi allow religious exemptions to school vaccine mandates. They argued that, under Fulton, when a state allows “comparable” secular exemptions to a law, it must offer religious exemptions as well. The plaintiffs claimed that secular medical exemptions were “comparable” to religious exemptions because unvaccinated individuals pose the same risk to others, regardless of why they are unvaccinated.

A judge in U.S. District for the Southern District of Mississippi agreed, and on August 29, 2023, issued a permanent injunction against Mississippi’s school vaccine policy unless the State Health Officer “provide[s] an option for requesting a religious exemption.”

This is how courts affect policy. The law on the books remains as Mississippi enacted it – with only a medical exemption. But, as of August 29, Mississippi is required to enforce the policy - articulated in a court decision in a case brought by a Texas organization - of providing religious exemptions to its school vaccine mandate.

But court decisions can also support sound public health policy. “Comparability” is a pliable term. Other courts have interpreted the U.S. Supreme Court’s COVID-19 era Free Exercise decisions differently from the Southern District of Mississippi. For example, the U.S. Second Circuit applied the “comparability” requirement by considering the state of Connecticut’s health purposes with respect to medical versus religious exemptions. There, the court found that medical exemptions furthered the health purposes of the mandate, while religious exemptions undermined the health purposes by jeopardizing herd immunity. Under this analysis, Connecticut’s decision to repeal its religious exemptions for school vaccine mandates was constitutionally valid.

Supporting good public health law requires a plan to protect public health in the courts with effective legal arguments that support good public health policy. Next week, we will provide an overview of what is happening in the courts with school vaccine mandates.  

Please note: December 13 will be PHLW’s last issue in 2024. We will resume on January 10, 2025.