The Mandate Heard ’Round the Workplace
During the COVID-19 pandemic, many individuals faced an ultimatum: comply with a vaccine mandate or forfeit your employment. These mandates coerced individuals into relinquishing their bodily integrity as a condition of keeping their jobs. In so doing, these mandates were not only an assault to personal liberty, but, when imposed by government employers, were classic examples of an unconstitutional condition.
The unconstitutional conditions doctrine asserts that the government may not condition the receipt of public benefits on the surrender of fundamental rights. The doctrine extends even to rights not explicitly enumerated in the Constitution, such as the right to bodily integrity.[1]
In the 1990s, a string of Supreme Court precedent developed acknowledging that “the right to be free of state-sponsored invasion of a person’s bodily integrity is protected by the [constitutional] guarantee of due process.”[2] In addition to those specifically listed in the Bill of Rights, the liberty protected by the Due Process Clause includes the right to bodily integrity.[3] This constitutional protection of bodily integrity encompasses the right to “refuse [t]he forcible injection of medication” into one’s body.[4] This fundamental right to bodily integrity was acknowledged in Washington v. Glucksberg and originally derived from Rochin v. California. The Supreme Court has referenced this right under both liberty and privacy interests without definitively assigning it to either, but regardless, bodily integrity is recognized as a fundamental right.[5] Therefore, conditioning public employment on the waiver of one’s fundamental right to bodily integrity is an unconstitutional condition.
Unfortunately, most legal challenges to vaccine mandates under the unconstitutional conditions doctrine to date have failed, primarily for two reasons. First, plaintiffs have often mischaracterized the right at stake as a “fundamental right to refuse vaccination” or “to refuse medical treatment”—rights which have not been formally recognized as fundamental by the Court.[6] Second, many courts have set aside bodily integrity precedents and instead relied on Jacobson v. Massachusetts, a 1905 case that upheld a state-imposed vaccination requirement.[7] In doing so, courts have embraced an expansive view of public health and deferred heavily to the perceived authority of government officials. As a result, courts have upheld mandates for experimental vaccines without fully weighing these actions against the foundational liberty protections Americans are supposed to enjoy.
Instead of seriously engaging with the merits of the unconstitutional conditions doctrine, courts often default to Jacobson and defer to the government whenever a public vaccine mandate is challenged. However, Jacobson can be distinguished and set aside.[8] Jacobson did not arise in the employment context; it predates today’s vastly more advanced medical landscape; and it was decided long before our modern tiers of judicial scrutiny were established. Under today’s constitutional framework, government intrusions on personal liberty are subject to a higher burden of justification before such encroachments will be tolerated. Once the highly deferential standard set by Jacobson is put aside, courts can reexamine vaccine mandates through an unobstructed unconstitutional conditions lens.
Inhis dissent in Calvary Chapel Dayton Valley v. Sisolak, Justice Kavanaugh reiterated the limited scope of Jacobson, stating that “[I]t is a mistake to take language in Jacobson as the last word on what the Constitution allows public officials to do during the COVID-19 pandemic. Language in Jacobson must be read in context . . .”[9] Jacobson itself recognized limits on vaccine mandates, stating that “no rule prescribed by a State, nor any regulation adopted by a local governmental agency . . . shall contravene the Constitution of the United States or infringe any right granted or secured by that instrument.”[10] Since Jacobson acknowledged its limited reach, and subsequent case law has established a fundamental liberty interest in bodily integrity, the stage is now set to challenge the unconstitutional conditions imposed by vaccine mandates.
A clear example of this unconstitutional condition in action was President Biden’s September 2021 Executive Order Requiring COVID-19 Vaccination for Federal Employees. Public servants were effectively compelled to waive constitutional rights as a condition of retaining their employment. Employees who refused to relinquish their right to bodily integrity were dismissed from their jobs. NCLA is currently litigating a similar case, Stewart v. Walz, which challenges an employment vaccine mandate on various grounds, including a violation of the unconstitutional conditions doctrine.
When a vaccine mandate violates due process, the government must prove it serves a compelling purpose and is narrowly tailored to achieve that purpose.[11] For COVID-19, the government cannot meet its burden for two reasons.
First, the “public health” justification for vaccine mandates must have some limiting principle. Any public health measure must be carefully weighed against the individual rights it may infringe on, which, here, includes a number of widely recognized constitutional rights such as liberty, privacy, and medical autonomy.
Second, even if the public health justification is permissible, the vaccine mandates imposed were substantially broader than necessary to achieve the intended purpose. Specifically, there were significant factors—such as the sufficiency of natural immunity, questions about vaccine effectiveness, and documented adverse effects—that challenged the necessity and scope of the blanket mandates.
Reexamining the constitutionality of these mandates is timely, as the haze of COVID-era fear has lifted and a clearer understanding has developed regarding what qualifies as a public health justification—especially now that more is known about vaccine effectiveness, natural immunity, and the extent to which unelected medical officials should be granted deference.
While it may appear that vaccine mandates are a relic of the past, the public must recognize the extent to which the government was willing to restrict personal freedoms under the justification of public health. The executive has demonstrated a willingness to impose conditions on liberty in exchange for access to employment. Citizens must remain vigilant and prepared to defend their freedoms against future unconstitutional conditions.
[1] See Mem’l Hosp. v. Maricopa Cnty., 415 U.S. 250 (1974) (holding that denying the right to interstate travel—though nowhere expressly listed in the Constitution—violated the unconstitutional conditions doctrine).
[2] Guertin v. Michigan, 912 F.3d 907, 921 (6th Cir. 2019) (quoting In re Cincinnati Radiation Litig., 874 F. Supp. 796, 810-11 (S.D. Ohio 1995)).
[3] See Washington v. Glucksberg, 521 U.S. 702, 720 (1997); see also Rochin v. California, 342 U.S. 165 (1952).
[4] Washington v. Harper, 494 U.S. 210, 229 (1990).
[5] See Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
[6] See Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (noting that the right to refuse unwanted lifesaving medical treatment was assumed or strongly implied but not confirmed as a fundamental right).
[7] Health Freedom Def. Fund, Inc. v. Carvalho, No. 22-55908, 2025 U.S. App. LEXIS 19182, at *24 (9th Cir. July 31, 2025).
[8] See Bauer v. Summey, 568 F. Supp. 3d 573, 592 n.5 (D.S.C. 2021) (courts dismissed bodily integrity precedents by framing vaccine mandates as “employment choices” rather than “forcible injections.”).
[9] Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2608 (2020).
[10] Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905).
[11] See Washington v. Glucksberg, at 766; see also Poe v. Ullman, 367 U.S. 497 (1961) (Harlan, J., dissenting) (noting that an “enactment involving . . . a most fundamental aspect of ‘liberty’ . . . [is] subject to strict scrutiny”).
August 6, 2025