IMMUNIZING ROE: HOW COURT TREATMENT OF COVID-19 VACCINE MANDATES SUPPORTS REPRODUCTIVE FREEDOM.

• Author: Curcio, Alyssa

INTRODUCTION

Discussions regarding bodily autonomy in the United States have always been contentious. Ideas about agency, religion, and privacy have fueled impassioned responses to court decisions and legislation regulating the body. (1) The COVID-19 pandemic and the ensuing effort to vaccinate Americans added a new dimension to the bodily autonomy debate.

COVID-19 vaccine mandates have become commonplace in the United States--as of February 2022, twenty states have imposed vaccine requirements in some form. (2) These mandates have ranged from merely requiring healthcare workers at long-term care facilities to be vaccinated against COVID-19 (3) to broadly requiring vaccination to enter private businesses and public spaces (4) While vaccine mandates are nothing new in the United States, (5) the unusually strong response against the COVID-19 mandates is a novelty. Since the widespread implementation of COVID-19 vaccine mandates began, people have taken to the courts, (6) the streets, (7) and the legislatures (8) to push back against requiring COVID-19 vaccination. In fourteen states, governors and state legislatures have implemented a ban on vaccine mandates. (9)

Resistance to COVID-19 vaccination has led to renewed interest in the abortion debate, as opponents of the new mandates have asserted that the legal arguments behind requiring vaccines are inconsistent with those protecting abortion. (10) Some figures have even gone so far as to commandeer the "my body, my choice slogan" created by the reproductive freedom movement as a rallying call to end vaccine mandates. (11) These arguments have been extended to the courtroom, where parties across the United States are arguing that vaccine mandates cannot be squared with the constitutional protection of abortion access. (12) Even the Supreme Court has hinted at this argument of inconsistency: while hearing arguments in Dobbs v. Jackson Women's Health, (13) a case concerning Mississippi's pre-viability ban on elective abortion, Justice Barrett noted a link between abortion and vaccination by asserting "there is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines." (14) While most of the cases utilizing this argument of inconsistency aim at striking down vaccine mandates, the same reasoning could easily be turned around to challenge abortion protections in the courtroom, particularly if a judge affords the anti-vaccine mandate arguments any credibility. Accordingly, it is essential to thoroughly understand and have a strong response to any such arguments. Additionally, given the rapidly changing landscape of abortion protections in the United States, analogy to the Court's vaccine mandate jurisprudence can be utilized as a defense against laws that restrict abortion access.

This Note seeks to challenge these inconsistency arguments, and to instead posit that vaccine mandates and abortion protections represent opposite ends of one cohesive bodily autonomy spectrum, where the state's interest in protecting against public harm is at one end of the scale and the individual's constitutional protections are at the other. In doing so, this Note will argue that when the Court addresses bodily autonomy claims, it always balances the individual's right against the state's interest, and that the divergent outcomes seen across bodily autonomy jurisprudence can be logically explained by how heavily each of those interests weigh in a particular issue.

Part I will provide an overview of the bodily autonomy jurisprudence in the United States, treating the historic practices of vaccinations and abortions individually while also providing background on other areas of the law that implicate bodily autonomy. Part II will explore both the argument urging that abortion protections and vaccine mandates are similar, and the argument that they are entirely different, in an effort to answer the question of how to characterize the relationship between the two bodies of cases. Lastly, Part III will argue that vaccine mandates are entirely consistent with the right to abortion, as they represent the opposite end of the Court's bodily autonomy spectrum, and are a useful tool in supporting the legality of reproductive freedom. By examining vaccine mandates and abortion protections under each other's respective legal frameworks, it becomes clear that the two jurisprudences can cohesively exist. Moreover, by examining abortion protections under vaccine mandates' legal analysis, the necessity' of the Court's protection of abortion rights is even further demonstrated.

1. The Bodily Autonomy Legal Landscape

   Part I of this Note begins by reviewing the general landscape of bodily autonomy jurisprudence in the United States before turning to examine the Supreme Court's abortion and vaccination jurisprudences in-depth.

   1. Survey of Bodily Autonomy Jurisprudence

      "Every human being of adult years and sound mind has a right to determine what shall be done with [their] own body." (15) This oft-quoted line from Justice Cardozo in Schloendorff v. Society of New York Hospital represents a strong, idealized conception of bodily autonomy in the United States. (16) However, as described below, there are some well-established instances in which an interest of the state eclipses personal liberty.

      State regulation of what citizens do with their bodies is more common than most realize. The federal government has authority under the Commerce Clause to regulate consumption of controlled substances, since the distribution, sale, and manufacture of such substances have a notable effect on interstate commerce. (17) Under the state's police power to take measures to protect the public health, safety, and welfare of its citizens, (18) states are given wide latitude to determine their respective policies concerning enforcement and sentencing of drug laws. (19) Under this same power, the state may also regulate what someone wears on their body in public, (20) may require someone to wear a seatbelt on their body while driving, (21) and may control at what age someone is permitted to consume alcohol. (22) The state thus has some control over what its citizens may do with their bodies, and these regulations are generally regarded as acceptable by the public.

      The government's ability to regulate one's use of her body also manifests itself in more substantial ways. While the common law historically recognized a right to refuse medical treatment, (23) this liberty has been curtailed by the Supreme Court. (24) In Cruzan v. Director, Missouri Department of Health, Nancy Cruzan was in a severe car accident that rendered her incompetent with little to no chance of recovery. (25) She had previously told her housemate that in the event of an accident, she wished to be taken off of life support. (26) "Balancing [respondent's] liberty interests against the relevant state interests," the Supreme Court ruled that Missouri had a higher stake in the case due to the finality of death and that its interest in being sure that a citizen wanted to refuse medical treatment "by clear and convincing evidence" was a constitutional exercise of its police power. (27) The Court later directly addressed the question of whether a citizen has a right to physician-assisted suicide in Washington v. Glucksburg. (28) In Glucksburg, the Court emphatically ruled that while individuals have a right to self-determination in their life and bodies, this must give way to Washington State's interests in preserving human life, protecting vulnerable groups, and preserving the integrity of the medical profession. (29) Explaining its holding, the majority wrote that the fact that "many of the rights protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected." (30)

      The state therefore has a fairly prominent role in regulating the body in both discrete and substantial ways. In upholding such regulations, the Court has expressly qualified the right to personal and bodily autonomy and has repeatedly framed inquiries concerning bodily autonomy through a balancing test weighing the interests of the individual against the interest of the state.

   2. Reproductive Freedom Through the Historical Lens

      1. Early Framework: Privacy and Penumbras

         The Fourteenth Amendment's substantive due process guarantee has informed much of the modern conception of personal liberty, with applications spanning from the right to practice one's profession (31) to the right to marry. (32) However, the Court's recognition of violations of substantive due process as valid rights of action is relatively new. Historically, the Court was reticent to ground unenumerated rights in the Fourteenth Amendment's somewhat ambiguous language. (33) Apart from the now-void concept of economic substantive due process, (34) the Court's first utilization of substantive due process was grounded in parents' right to control the upbringing of their children, (35) which later evolved into the right of care, custody, and control of one's children. (36) These initial steps towards substantive due process paved the way for a recognized right to obtain an abortion.

         The path toward abortion protections continued with Griswold v. Connecticut, (37) The Court--still hesitant to return to the then-disfavored language of substantive due process (38)--overturned a Connecticut statute outlawing the prescription of contraceptives by finding that, though privacy was not a concrete right protected under the Fourteenth Amendment, other "specific guarantees in the Bill of Rights have penumbras, formed by the emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy." (39) Thus, while the Court did not read the language of the Fourteenth Amendment to specifically protect a right to privacy, it nestled...