As courts reopen amid the Covid-19 vaccine rollout and falling case fatality rates, they are now wrestling with the question of whether to require jurors to get the vaccine in order to be eligible for jury duty. So far, at least one court has mandated juror vaccination.

At Least One Court Has Required Juror Vaccination

On June 14, 2021, Judge Aaron Polster (U.S. District Judge for the Northern District of Ohio) issued an order requiring juror vaccination. The order provided that individuals would not be able to serve as jurors in the pharmaceutical case before the court unless they were fully vaccinated against Covid-19.

But, the requirement did not last very long. On June 21, 2021, counsel for the pharmaceutical defendants moved for reconsideration. They argued that if only vaccinated individuals were permitted to serve as jurors, then the jury pool would be skewed ideologically, thus making it harder to select an impartial jury. In response, the judge agreed with the defendants and lifted the vaccine mandate on June 23, 2021.

Presumably, the pharmacy defendants were concerned that a vaccination requirement would result in a politically more liberal jury. According to The Hill, Republicans are four times more likely to not get the vaccine than Democrats. So, a juror vaccination mandate would of course be concerning to the pharmacy defendants, since liberal jurors tend to be more inclined to punish bad corporate behavior.

Is A Juror Vaccination Mandate Even Constitutional?

Currently, no state requires its citizens to be vaccinated against Covid-19. In fact, the general trend for most states is legislation to prohibit discrimination based on vaccination status. As such, it is unlikely that courts presently have the authority to force a potential jury to get vaccinated. Instead, a court with a juror vaccination mandate is limited to only being able to excuse potential jurors from jury duty if they are not vaccinated.

But, this raises the question – could a state pass a law requiring jurors (and other citizens) to be vaccinated against Covid-19? There are legal arguments on both sides.

For those that favor mandated vaccinations, the seminal appellate case is Jacobson v. Massachusetts, 197 U.S. 11 (1905). After a smallpox outbreak in Cambridge, Massachusetts, the Cambridge Board of Health adopted a regulation requiring “vaccination or revaccination” of all city inhabitants against smallpox. Id. at 12. The U.S. Supreme Court upheld the regulation as an appropriate “police power of a State.” Id. at 11.

Legal arguments against mandatory vaccination laws would probably begin by recognizing that there is a stark difference between smallpox and Covid-19. Namely, smallpox has a mortality rate of at least 30%, whereas the mortality rate for Covid-19 is considerably less than 1%. Moreover, several Supreme Court and other federal appellate decisions have held that an individual’s right to make medical treatment decisions sometimes outweighs the government’s police powers, depending on context.

Another factor the Supreme Court would have to consider is the availability of other, less invasive means to quell real or imagined public safety concerns. The world has changed since the 1905 Jacobson decision. We now have the ability to try cases remotely via Zoom and other video conferencing systems. Some courts have already successfully conducted entire jury trials via Zoom.

Summary

No one can ever predict for certain how the Supreme Court will rule on an issue. What is certain, however, is that if any state ever does attempt to pass a mandatory Covid-19 vaccination law, it will be hotly contested. For now, some courts might allow you to get out of jury duty if you have not received the vaccine. It depends on whether the specific court to which you are summoned has issued an order requiring jurors to have been vaccinated.

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