Richard H. Hughes, IV, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, authored an article in The Journal of the American Medical Association (JAMA) Health Forum, titled “Vaccine Litigation—Weighing the Consequences for the Public’s Health.”
Following is an excerpt:
Robert F. Kennedy Jr’s confirmation as Secretary of the US Department of Health and Human Services (HHS) marked a paradigm shift in public health governance. As lead litigation counsel for Children’s Health Defense, Kennedy filed nearly 30 federal and state lawsuits challenging vaccine authorizations and mandates. Now, at the helm of the nation’s health apparatus, he has aggressively exercised his executive authority to undermine vaccine policy.
Although federal and state vaccine policies can be reversed by policymaking, judicial rulings are far more enduring. Perhaps for this reason, antivaccine organizations expanded their advocacy to the judiciary. The resulting vaccine litigation strategy could have profound public health consequences, dismantling a century-old legal framework that balances individual liberty with the common good.
Vaccination Requirements
Since Jacobson v Massachusetts (1905), the courts have consistently upheld the state’s “police powers” to safeguard the public’s health and safety, including by compulsory vaccinations. In 1922, the US Supreme Court explicitly upheld state authority to require childhood immunizations as a condition of entry into day care and schools.
The basic architecture of public health mandates is likely to hold despite the Supreme Court overturning COVID-19–era restrictions on public gatherings. In Klaassen v Trustees of Indiana University (2021), the 7th Circuit court upheld a university vaccination requirement. More recently, in Health Freedom Defense Fund v Carvalho (2025), the 9th Circuit court upheld a school vaccine requirement for employees, citing Jacobson. Even though several justices have posited that public health mandates may be inherently suspect, the majority are unlikely to overturn long-standing public health precedents—at least not in the near term.
Religious Exemptions and the Collapse of the Social Contract
The current surge in litigation fueled by antivaccination and antiregulatory movements threatens to unravel state public health protections. Although Jacobson may remain intact, it could soon be hollowed out from within by rulings favoring religious exemptions. In an era of vaccine hesitancy, parents are increasingly claiming religious objections, which strains herd immunity. Religious exemptions are not randomly distributed; they cluster geographically and socially in private schools, religious institutions, and for kids who are homeschooled. Those clusters undermine herd immunity even when statewide coverage looks high. Infectious disease outbreaks are strongly linked to spatial clustering of nonmedical exemptions, including measles outbreaks (2024-2026). If the courts rule that religious exemptions are constitutionally required, this will deliver a staggering blow to unvaccinated and vulnerable populations.
In Prince v Massachusetts (1944), the Supreme Court held that parental authority and religious liberty can be restricted to protect children’s welfare—famously emphasizing that “the family itself is not beyond regulation in the public interest.” State public health requirements that are generally applicable have been consistently upheld. Yet, the Supreme Court is poised to end long-held deference to public health. ...
