21A90 018 Oct 28 2021 Main Document 20211028141652778 2021.10.28 Vaccine Mandates Public Health Scholars (U.S.)

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In the Supreme Court of the United States 
JOHN DOE, ET AL., 
Applicants, 
v. 
JANET T. MILLS, IN HER OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF MAINE, ET AL. 
Respondents. 
ON EMERGENCY APPLICATION FOR WRIT OF INJUNCTION  
TO THE HONORABLE STEPHEN G. BREYER, ASSOCIATE JUSTICE OF THE UNITED STATES SU-
PREME COURT AND CIRCUIT JUSTICE FOR THE FIRST CIRCUIT 
 
ELISABETH S. THEODORE 
Counsel of Record 
JOHN B. “JAY” SWANSON 
ARNOLD & PORTER  
KAYE SCHOLER LLP 
601 Massachusetts Ave., NW 
Washington, DC 20001 
(202) 942-5000
elisabeth.theodore@
arnoldporter.com
Counsel for Amici Curiae 

(1)  
 
MOTION FOR LEAVE (1) TO FILE AMICUS CURIAE BRIEF OF PUBLIC HEALTH ASSOCIA-
TIONS AND SCHOLARS OF PUBLIC HEALTH IN SUPPORT OF RESPONDENTS AND IN OP-
POSITION TO EMERGENCY APPLICATION FOR WRIT OF INJUNCTION, AND TO DO SO 
(2) IN AN UNBOUND FORMAT ON 8½-BY-11-INCH PAPER, AND (3) WITHOUT TEN 
DAYS’ ADVANCE NOTICE TO THE PARTIES 
 
 
Movants, public health associations and scholars of public health, respectfully request 
leave of the Court to (1) file the attached amicus curiae brief in support of respondents and 
in opposition to applicants’ emergency application for a writ of injunction, (2) file the brief 
in an unbound format on 8½-by-11-inch paper, and (3) file the brief without ten days’ ad-
vance notice to the parties.  
The applicants and state-official respondents do not oppose this motion.   The private-
party respondents take no position on this motion.   
All the proposed amici are individuals and nonprofit organizations that have no par-
ent corporations and that are not owned, in whole or in part, by any publicly held corpora-
tion.  The proposed amici are: 
 The American Public Health Association 
 Vaccinate Your Family 
 National Consumers League 
 Immunization Action Coalition 
 Arizona Partnership for Immunization 
 Dorit R. Reiss, Professor of Law  and the James Edgar Hervey Chair in Litigation 
at the University of California, Hastings College of the Law 
 Wendy E. Parmet, George J. and Kathleen Waters Matthews Distinguished Profes-
sor of Law and Professor of Public Policy and Urban Affairs at Northeastern Uni-
versity, 
 Lance Gable, JD, MPH, Professor of Law, Wayne State University Law School 
 Lindsay F. Wiley, Professor of Law & Director, Health Law & policy Program, 
American Univ. Washington College of Law 

 
2  
 Rene e M. Landers,  Professor of Law and Faculty Director, Health and Biomedical 
Law Concentration and Master of Science in Law, Life Sciences Program, Suffolk 
University Law School 
 Stacie Kershner, JD, Associate Director, Center for Law, Health & Society, Georgia 
State University College of Law 
 Scott Burris, Professor and Director, Center for Public Health Law Research, Tem-
ple University Beasley School of Law 
 Robert I. Field, Drexel University Thomas R. Kline, School of Law and Dornsife 
School of Public Health 
 Jonathan D. Kahn, Northeastern University School of Law 
 Prof. Cason D. Schmit, JD, Assistant Professor,  Texas A&M University School of 
Public Health 
 Jennifer D. Oliva, Associate Dean for Faculty Research & Development, Professor 
of Law, Director, Center for Health & Pharmaceutical Law, Seton Hall University 
School of Law 
 Marice Ashe, JD, MPH, Lecturer, Univ. of California Berkeley Law 
 Christopher T. Robertson, Professor of Law, Boston University 
 Kayte Spector-Bagdady, JD, MBe, Assistant Professor of Obstetrics & Gynecology, 
University of Michigan Medical School 
 Peter D. Jacobson, JD, MPH, Professor Emeritus of Health Law and Policy, Univer-
sity of Michigan School of Public Health 
 Ani B. Satz, J.D., Ph.D., Professor of Law & Public Health, Emory University, 
 Leslie Francis, University of Utah 
 Michael S. Sinha, MD, JD, MPH, Adjunct Faculty, Northeastern University School of 
Law, Visiting Scholar, NUSL Center for Health Policy and Law 
 Sharona Hoffman, J.D., LL.M., S.J.D., Professor of Law & Bioethics, Edgar A. Hahn 
Professor of Jurisprudence Co-Director, Law-Medicine Center Case Western Re-
serve University School of Law 
 Lawrence O. Gostin, University Professor, Founding O'Neill Chair in Global Health 
Law, Faculty Director, O'Neill Institute for National and Global Health Law, Direc-
tor, World Health Organization Collaborating Center on National & Global Health 
Law 
 Arthur L. Caplan Mitty Professor of Bioethics, Head, Division of Medical Ethics, 
NYU Grossman School of Medicine 
 Michael R. Ulrich, Assistant Professor of Health Law, Ethics & Human Rights, Bos-
ton University School of Public Health and School of Law  

 
3  
 
Applicants’ emergency application was docketed on October 20, 2021. In light of the 
October 25, 2021 deadline that was set for responding to the application, there was insuffi-
cient time for the proposed amici to prepare their brief for printing and filing in booklet form, 
as ordinarily required by Supreme Court Rule 33.1. Nor, for the same reason, were the pro-
posed amici able to provide the parties with ten days’ notice of their intent to file the attached 
brief, as ordinarily required by Rule 37.2(a). 
For the foregoing reasons, the proposed amici respectfully request that the Court 
grant this motion to file the attached proposed amicus brief and accept it in the format and 
at the time submitted. 
 
Respectfully submitted. 
 
 
ELISABETH S. THEODORE 
Counsel of Record 
JOHN B. “JAY” SWANSON 
ARNOLD & PORTER  
KAYE SCHOLER LLP 
601 Massachusetts Ave., NW 
Washington, DC 20001 
(202) 942-5000 
elisabeth.theodore@ 
arnoldporter.com 
 
Counsel for Amici Curiae 
 
OCTOBER 2021 

No. 21A90 
 
 
 
 
In the Supreme Court of the United States 
JOHN DOE, ET AL., 
 
 
 
 
Applicants, 
v. 
JANET T. MILLS, IN HER OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF MAINE, ET AL. 
 
 
 
 
Respondents. 
 
ON EMERGENCY APPLICATION FOR WRIT OF INJUNCTION  
TO THE HONORABLE STEPHEN G. BREYER, ASSOCIATE JUSTICE OF THE UNITED STATES SU-
PREME COURT AND CIRCUIT JUSTICE FOR THE FIRST CIRCUIT 
 
 
BRIEF AMICUS CURIAE OF PUBLIC HEALTH ASSOCIATIONS AND 
SCHOLARS OF PUBLIC HEALTH IN SUPPORT OF RESPONDENTS  
 
 
ELISABETH S. THEODORE 
Counsel of Record 
JOHN B. “JAY” SWANSON 
ARNOLD & PORTER  
KAYE SCHOLER LLP 
601 Massachusetts Ave., NW 
Washington, DC 20001 
(202) 942-5000 
elisabeth.theodore@ 
arnoldporter.com 
Counsel for Amici Curiae 
 

(i) 
TABLE OF CONTENTS 
  Page 
Interests of Amici Curiae ............................................................................................ 1 
Introduction and  Summary of Argument .................................................................. 3 
I.
Vaccine Mandates Are Essential To Reduce Community
Transmission of COVID-19 .......................................................................... 4 
II.
Medical Exemptions To Vaccine Mandates Are Not Comparable
To Religious Exemptions .............................................................................. 6 
III. Requiring Religious Exemptions Will Undermine Public Health ............ 11 
Conclusion .................................................................................................................. 13 

ii 
TABLE OF AUTHORITIES 
Page(s) 
Cases 
Fulton v. City of Philadelphia, Pennsylvania, 
141 S. Ct. 1868 (2021) ................................................................................................................................. 7 
Other Authorities 
Alexandra M. Stewart & Marisa A. Cox, “State law and influenza vaccination of 
health care personnel,” 31 National Library of Medicine 5 (Jan. 21, 2013) ............................ 6 
Azhar Hussain, “The Anti-vaccination Movement: A Regression in Modern 
Medicine,” 10 Cureus e2919 (July 2018) ............................................................................................10 
 “Clinical Guidance,” Federal Bureau of Prisons 3 (Feb. 2020), 
https://www.bop.gov/resources/pdfs/TB_CPG.pdf .....................................................................13 
 “Contraindications and Precautions,” Centers for Disease Control and 
Prevention (Oct. 8, 2021), 
https://www2.cdc.gov/vaccines/ed/covid19/pfizer/20060.asp ............................................. 8 
Daniel A. Salmon, et al, “Compulsory vaccination and conscientious or 
philosophical exemptions: past, present, future,”  367 The Lancet 436-42 
(February 4, 2006) ....................................................................................................................................4, 5 
Jane R. Zucker, et al., “Consequences of Undervaccination — Measles 
Outbreak, New York City, 2018–2019,” 382 New England J. of Med. 
10009-17 (March 12, 2020) ...................................................................................................................... 8 
Jenelle L. Mellerson, et al., “Vaccination Coverage for Selected Vaccines and 
Exemption Rates Among Children in Kindergarten — United States, 
2017–18 School Year,” Centers for Disease Control and Prevention (Oct. 
18, 2018), 
https://www.cdc.gov/mmwr/volumes/67/wr/mm6740a3.htm ...........................................11 
Jessica E. Atwell, et al., “Nonmedical Vaccine Exemptions and Pertussis in 
California, 2010,” 132 Pediatrics 4 (Oct 2013) ........................................................................... 9, 11 
Lena H. Sun, “New York City declares end to largest measles outbreak in 
nearly 30 years,” Washington Post (Sept. 3, 2019) ......................................................................8, 9 

iii 
Lin, Rong-Gong, and Karlamangla, Soumya. “Vaccination rate jumps in 
California after tougher inoculation law,” The Los Angeles Times, 13 April 
2017 .................................................................................................................................................................... 9 
Lok Wong Samson, et al., “Associations Between County-level Vaccination 
Rates and COVID-19 Outcomes Among Medicare Beneficiaries,” Research 
Report No. HP-2021-23 ............................................................................................................................... 5 
 “Measles Outbreak — California, December 2014–February 2015,” Centers 
for Disease Control and Prevention (Feb. 20, 2015), 
https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6406a5.htm .................................... 9 
Michael Brice-Saddler and Jasmine Hilton, “Thousands of D.C. health care 
workers remain unvaccinated amid flurry of religious exemption 
requests,” Washington Post (Oct. 2, 2021) ........................................................................................10 
“Hospitals Reported that COVID-19 Pandemic Has Significantly Strained 
Health Care Delivery,” Office of Inspector General, Department of Health 
and Human Services (March 2021), https://oig.hhs.gov/oei/reports/OEI-
09-21-00140.pdf ............................................................................................................................................ 7 
Olivier Vandenberg, et al., “Considerations for diagnostic COVID-19 tests,” 19 
Nature Reviews Microbiology 171 (March 2021) ............................................................................. 6 
Rajaie Batnij, “Historical evidence to inform COVID-19 vaccine mandates,” 
397 The Lancet 10276 (Feb. 27, 2021) ................................................................................................. 4 
Ranee Seither, et al., “Vaccination Coverage with Selected Vaccines and 
Exemption Rates Among Children in Kindergarten — United States, 
2018–19 School Year,” Centers for Disease Control and Prevention (Oct. 
18, 2019), 
https://www.cdc.gov/mmwr/volumes/68/wr/mm6841e1.htm ...........................................10 
Robert A. Bednarcyk, et al., “Current landscape of nonmedical vaccination 
exemptions in the United States: impact of policy changes,” Expert Rev. 
Vaccines, 18(2): 175-190 (Feb. 2019) .................................................................................................11 
Ross J. Harris, et al, “Effect of Vaccination on Household Transmission of 
SARS-CoV-2 in England,”  New England J. of Med. (June 23, 2021) ............................................ 8 
Sahil Loomba, “Measuring the impact of COVID-19 vaccine misinformation on 
vaccination intent in the UK and USA,” 5 Nature Human Behavior 337-48 
(2021) ...............................................................................................................................................................10 

iv 
 “Smallpox,”  Centers for Disease Control and Prevention (July 12, 2017), 
https://www.cdc.gov/smallpox/ ............................................................................................................ 4 
 Steven Salzburg, “Whooping Cough Epidemic: Blame The Anti-Vaccination 
Movement,” Forbes (Oct. 11, 2010) ......................................................................................................10 
Sumehda Gupta, et al., “Vaccinations Against COVID-19 May Have Averted Up 
to 140,000 Deaths in the United States,” 40 Health Aff. 1465 (2021) ....................................... 5 
Tiffany L. Wang, et al., “Mandatory influenza vaccination for all healthcare 
personnel: a review on justification, implementation and effectiveness,” 
29 Current Opinion in Pediatrics 00 (2017) ....................................................................................... 5 
Tim R. Mercer & Mark Salit, “Testing at scale during the COVID-19 pandemic,” 
22 Nature Reviews Genetics 415 (July 2021) ..................................................................................... 6 
Tom Chang, et al., “Financial Incentives and Other Nudges Do Not Increase 
COVID-19 Vaccinations among the Vaccine Hesitant,”  NBER Working 
Paper 29403 (October 2021) .................................................................................................................... 5 
 “Transmission of Measles,” Centers for Disease Control and Prevention (Nov. 
5, 2020), https://www.cdc.gov/measles/transmission.html ............................................ 12, 13 
Zhanwei Du, et al., “Comparative cost-effectiveness of SARS-CoV-2 testing 
strategies in the USA: a modelling study,” 6 Lancet Public Health 185 
(Feb. 4, 2021) ..............................................................................................................................................6, 7 

 
1 
INTERESTS OF AMICI CURIAE1 
Amici curiae are a diverse group of scholars and professional organizations of public 
health professionals who are concerned that states and other public authorities be permitted 
to employ all the tools they need to combat the COVID-19 pandemic.  As scholars and practi-
tioners, amici have studied and worked with various institutions in organizing against this 
and other pandemics.  In so doing, amici have acquired a body of knowledge and experience 
in the field of immunization and public health that they now seek to share with the Court.  
Professor Wendy E. Parmet is the George J. and Kathleen Waters Matthews Distin-
guished Professor of Law and Professor of Public Policy and Urban Affairs at Northeastern 
University, where she is the faculty director of the Center on Health Policy and Law.  Professor 
Parmet is the author of over 100 law review and peer reviewed articles on public health law.  
Her books include The Health of Newcomers: Immigration, Health Policy and the Case for 
Global Solidarity, co-authored with Patricia Illingworth (2017, NYU Press) and Populations, 
Public Health, and the Law (2009, Georgetown University Press). Professor Parmet is also 
Associate Editor for Law and Ethics for the American Journal of Public Health. 
Professor Dorit R. Reiss is s a Professor of Law  and the James Edgar Hervey Chair 
in Litigation at the University of California, Hastings College of the Law. She specializes in 
 
1 No counsel for a party authored this brief in whole or part, and no counsel or party made a monetary 
contribution to fund the preparation or submission of this brief.  No one other than the amici curiae and their 
counsel made any monetary contribution to its preparation and submission.  The parties were given notice 
and did not oppose this filing. 

 
2 
vaccines law and policy and has written widely about vaccines exemptions. She has, for ex-
ample, authored “Litigating Alternative Facts: School Vaccine Mandates in the Courts.”  21 J. 
of Con. L. 207 (2018). 
The American Public Health Association, founded in 1872, is the nation’s leading 
public health organization.  It champions the health of all people and all communities; 
strengthens the profession of public health; shares the latest research and information; pro-
motes best practices; and advocates for public health issues and policies grounded in scien-
tific research. APHA represents more than 23,000 individual members, including public 
health professionals, and is the only organization that combines a nearly 150-year perspec-
tive, a broad-based member community, and the ability to influence federal policy to improve 
the public’s health. 
A complete list of amici is appended.  
 
 
 

 
3 
INTRODUCTION AND SUMMARY OF ARGUMENT 
Vaccine mandates work.  From the eradication of smallpox—beginning with the im-
position of America’s first vaccine mandate in the early 19th century—to the near elimination 
of polio, measles, mumps, and rubella—achieved through vaccine mandates on school chil-
dren—the effectiveness of such mandates is beyond dispute.  Any serious effort to end the 
COVID-19 pandemic must have vaccine mandates at its heart; no other public health inter-
vention can substitute.  
But, to work, vaccine mandates must be applied properly.  In two recent cases—mea-
sles outbreaks in California and New York—coordinated efforts to spread misinformation 
about vaccines led to an increase in people claiming the religious exemption to the states’ 
mandates.  And, predictably, this led to outbreaks of what should have been preventable dis-
eases.  As a response to those outbreaks, California and New York revoked the religious ex-
emption, and neither state has seen a measles outbreak since.   
In light of these two powerful case studies, it should not be surprising that some 
states, when enacting COVID-19 vaccine mandates, have forgone religious exemptions.   Ex-
perience has shown that the number of people who claim religious exemptions far exceeds—
sometimes by orders of magnitude—those who claim and are eligible for medical exemp-
tions.  The number of people seeking religious exemptions has also fluctuated dramatically 
across jurisdictions and over time.  Religious exemptions undermine a state’s interest in pub-
lic health, by putting at risk people who cannot get vaccinated, like small children, or people 
for whom the vaccine is less effective, like the immunocompromised.  Medical exemptions—
aimed as they are at protecting the health of the exempt individual—advance this interest.  

 
4 
A holding that states must allow religious exemptions to their COVID-19 vaccine man-
dates would set a dangerous precedent.  It would quickly spread to other vaccine mandates 
and beyond, leading to a resurgence in preventable disease and undermining a public health 
system that has taken decades to build and that has saved countless lives.   
ARGUMENT 
I. 
Vaccine Mandates Are Essential To Reduce Community Transmission of COVID-19 
Vaccine mandates are an irreplaceable tool in the fight against COVID-19.  Such man-
dates have a strong historical track record, demonstrating their unique and vital importance 
in defeating disease and protecting public health.   
The first vaccine mandate in the United States was a 1809 law in Massachusetts re-
quiring universal vaccination for smallpox (with a medical exemption for certain children).2    
Vaccine mandates like that one were essential to the eradication of the disease in the United 
States, which occurred by 1949, as other states followed Massachusetts in imposing man-
dates.3  Similarly, following a push by the Centers for Disease Control and Prevention (CDC), 
by 1980 every state passed mandatory vaccination laws for school children, which dramati-
cally lowered the incidence of diseases like measles and pertussis.4  And while it is still early 
 
2 Daniel A. Salmon, et al, “Compulsory vaccination and conscientious or philosophical exemptions: past, 
present, future,”  367 The Lancet 436-42 (February 4, 2006).  
3 “Smallpox,”  Centers for Disease Control and Prevention (July 12, 2017) available at 
https://www.cdc.gov/smallpox/; Rajaie Batnij, “Historical evidence to inform COVID-19 vaccine mandates,” 
397 The Lancet 10276 (Feb. 27, 2021). 
4  Salmon, supra, at 439. 

 
5 
in the process, data show that widespread COVID vaccination has made a “substantial impact 
on mitigating COVID-19 outbreaks.”5     
With COVID-19, no public health intervention can take the place of vaccine mandates.  
Measures designed to encourage people to voluntarily accept vaccination have not been suf-
ficiently effective.  For instance, a recent working paper for the National Bureau of Economic 
Research investigated the effect of financial incentives, advertising, and other interventions 
on the unvaccinated and found that they “did not meaningfully increase [COVID-19] vaccina-
tion rates.”6  This result is no surprise, given the public health sector’s experience with 
longstanding efforts to increase flu immunization, which conclusively establishes that man-
dates cannot be replaced by voluntary measures.   A study of efforts to vaccinate healthcare 
workers for influenza found that no effort short of mandates could achieve a vaccination rate 
over the 90% required for herd immunity.7   
Nor can testing and contract tracing—although a critical part of any COVID-19 miti-
gation strategy—take the place of vaccine mandates.  For testing to have a significant effect 
on reducing community transmission of COVID-19—according to a study of a “multiscale 
 
5 Sumehda Gupta, et al., “Vaccinations Against COVID-19 May Have Averted Up to 140,000 Deaths in the 
United States,” 40 Health Aff. 1465 (2021); Lok Wong Samson, et al., “Associations Between County-level 
Vaccination Rates and COVID-19 Outcomes Among Medicare Beneficiaries,” Research Report No. HP-2021-
23, Office of the Assistant Secretary for Planning and Evaluation, U.S. Dept. of Health and Human Services 
(Oct. 2021) (estimating reduction of approximately 265,000 COVID-19 infection and 39,000 deaths among 
Medicare beneficiaries). 
6 Tom Chang, et al., “Financial Incentives and Other Nudges Do Not Increase COVID-19 Vaccinations among 
the Vaccine Hesitant,” NBER Working Paper 29403 (October 2021). 
7 Tiffany L. Wang, et al., “Mandatory influenza vaccination for all healthcare personnel: a review on justifi-
cation, implementation and effectiveness,”  29 Current Opinion in Pediatrics 00, 4 (2017) (“promot[ion]” of 
voluntary vaccination at workplaces resulted in vaccination rate under 90%); see also, e.g., Alexandra M. 
Stewart & Marisa A. Cox, “State law and influenza vaccination of health care personnel,” 31 National Library 
of Medicine 5, 827-32 (Jan. 21, 2013) (“[O]nly an institutional mandate for influenza vaccination proved to 
achieve the Healthy People 2020 objective of vaccinating 90% of HCP”). 

 
6 
model that incorporates SARS-CoV-2 transmission at the population level and daily viral load 
dynamics at the individual level” published in Lancet Public Health—there must be “mass 
diagnostic testing”—i.e. testing entire populations without regard to symptoms.8  A literature 
review aggregating studies of COVID-19 testing strategies published in Nature Reviews re-
vealed that mass diagnostic testing must be accompanied by contact tracing, which is “labo-
rious and time-consuming, and becomes increasingly difficult in the context of an ongoing 
viral transmission” like COVID-19.9  And all of this must be carried out by a “community [that] 
is fully engaged and individuals [who] comply with and participate in confinement measures 
and adequately use personal protective equipment.”10  Because of these “intimidating” diffi-
culties, “only a few countries” —not including the United States—“have been able to scale 
such program[s] to the levels required to contain pandemic waves.”11   
II. 
Medical Exemptions To Vaccine Mandates Are Not Comparable To Religious 
Exemptions 
The Court has made clear that a law that prohibits religious conduct but allows secu-
lar conduct that undermines the asserted state interest in a comparable way is not “generally 
applicable” and is thus subject to struct scrutiny.  Fulton v. City of Philadelphia, 141 S. Ct. 1868, 
1877 (2021).  But that is not the case here.  Medical exemptions are not comparable to reli-
gious exemptions for three critical reasons.   
 
8 Zhanwei Du, et al., “Comparative cost-effectiveness of SARS-CoV-2 testing strategies in the USA: a model-
ling study,” 6 Lancet Public Health 185 (Feb. 4, 2021).  Note that this study was conducted before the Delta 
variant, which is even harder to control with non-pharmaceutical interventions, became common.   
9 Tim R. Mercer & Mark Salit, “Testing at scale during the COVID-19 pandemic,” 22 Nature Reviews Genetics 
415, 420 (July 2021). 
10 Olivier Vandenberg, et al., “Considerations for diagnostic COVID-19 tests,” 19 Nature Reviews Microbiol-
ogy 171, 180 (March 2021) 
11 Du, supra, at 190.   

 
7 
First, medical exemptions do not undermine a state’s interest in public health.  In en-
acting a vaccine mandate, the state pursues its general interest in public health by reducing 
the contagion, morbidity, mortality associated with COVID-19.  Additionally, vaccine man-
dates protect people who cannot be vaccinated (small children and the medically exempt) 
and those for whom the vaccine is less effective (the immunocompromised, among others).  
The vaccine mandate likewise furthers the state’s interest in public health by reducing the 
strain on hospitals and healthcare workers, which can be brought to the point of collapse by 
pandemics.12 
Medical exemptions advance these goals.  Medical exemptions allow individuals for 
whom the vaccine is “medically contraindicated” to forgo receiving it.  This could be because 
an individual has a severe allergic reaction to a component of the vaccine, for example.13  For 
these individuals, the risk of significant negative health effects from the vaccine outweighs 
the risk of ill effects from COVID-19.    Thus, when the state grants exceptions for those with 
medical contraindications, it promotes the health and safety of everyone within its jurisdic-
tion. 
On the other hand, a state may reasonably conclude that religious exemptions under-
mine the state’s interest in public health.  Leaving aside the risks that those invoking religious 
exemptions take upon themselves, unvaccinated individuals spread the virus at higher rates 
 
12 “Hospitals Reported that COVID-19 Pandemic Has Significantly Strained Health Care Delivery,” Office of 
Inspector General, Department of Health and Human Services (March 2021) available at 
https://oig.hhs.gov/oei/reports/OEI-09-21-00140.pdf  
13 “Contraindications and Precautions,” Centers for Disease Control and Prevention (Oct. 8, 2021) availa-
ble at https://www2.cdc.gov/vaccines/ed/covid19/pfizer/20060.asp  

 
8 
than the vaccinated. 14  It is harder for a state to protect people who cannot be vaccinated or 
for whom the vaccine is less effective, like children and the immunocompromised, from 
COVID-19 when the rate of transmission of the disease is elevated by a large number of peo-
ple with religious exemptions.  A state thus may reasonably conclude that religious exemp-
tions directly undermine the state’s interest in protecting the welfare of people who cannot 
be vaccinated or for whom the vaccine is less effective, without any offering any compensat-
ing public health benefit—a qualitative difference from medical exemptions.     
Second, unlike medical exemptions, religious exemptions to vaccine mandates have 
been linked to serious outbreaks of preventable diseases in recent years.  For instance, in 
New York during the 2018-19 school year, 654 people, mostly children, contracted measles.15  
The outbreak was heavily concentrated among those 26,000 children with religious exemp-
tions, and, as a result, the state revoked that exemption to its vaccine mandate for school 
children.16  Similarly, in 2015, California suffered a measles outbreak linked to children visit-
ing Disneyland who were “unvaccinated because of personal beliefs.”17  As a result, California 
also revoked its non-medical exemptions to vaccine mandates.18  The measles outbreak in 
California came just five years after that state suffered a pertussis outbreak involving 9,000 
 
14 While Covid-19 vaccines do not completely prevent transmission to others, increasing evidence suggests 
they decrease it.  See, e.g., Ross J. Harris, et al., “Effect of Vaccination on Household Transmission of SARS-
CoV-2 in England,”  New England J. of Med. (June 23, 2021).   
15 Jane R. Zucker, et al., “Consequences of Undervaccination — Measles Outbreak, New York City, 2018–
2019,” 382 New England J. of Med. 10009-17 (March 12, 2020); Lena H. Sun, “New York City declares end to 
largest measles outbreak in nearly 30 years,” Washington Post (Sept. 3, 2019). 
16 Id. 
17 “Measles Outbreak — California, December 2014–February 2015,” Centers for Disease Control and Pre-
vention (Feb. 20, 2015) available at https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6406a5.htm 
18 Lin, Rong-Gong, and Karlamangla, Soumya. “Vaccination rate jumps in California after tougher inocula-
tion law,” The Los Angeles Times (April 13, 2017). 

 
9 
reported cases in which ten infants died, a dramatic increase over the norm.19  Clusters of 
nonmedically exempt individuals—such as those who obtained religious exemptions—
played an important role in causing the outbreak, with one study concluding that outbreaks 
were more than twice as likely in communities with such a cluster.20   
Crucially, the number of children with religious exemptions to New York and Califor-
nia’s  vaccine mandates rose significantly before their respective outbreaks, apparently as a 
consequence of coordinated efforts by anti-vaccine campaigners.21  A similar anti-vaccina-
tion campaign is underway against the COVID-19 vaccine, complete with misinformation 
spread over social media networks.22  Thus, should the Court require states to offer religious 
exemptions to COVID-19 vaccine mandates, we expect to see an unusually high number of 
people seeking them.23 
Third, religious exemptions are not comparable to medical exceptions because many 
more people qualify for religious exemptions and because those people may be clustered ge-
ographically, increasing risk of transmission.   Studies by the CDC and scholars have con-
firmed that, where a religious exemption is offered, the number of people who claim it is, on 
 
19 Jessica E. Atwell, et al., “Nonmedical Vaccine Exemptions and Pertussis in California, 2010,”  132 Pediat-
rics 4 (Oct 2013). 
20 Id. 
21 Azhar Hussain, “The Anti-vaccination Movement: A Regression in Modern Medicine,” 10 Cureus e2919 
(July 2018).  See also Sun supra (“Anti-vaccine groups had been particularly active [in New York].”); Steven 
Salzburg, “Whooping Cough Epidemic: Blame The Anti-Vaccination Movement,” Forbes (Oct. 11, 2010). 
22 See, e.g., Sahil Loomba, “Measuring the impact of COVID-19 vaccine misinformation on vaccination intent 
in the UK and USA,” 5 Nature Human Behavior 337-48 (2021); Remarks of Professor Douglas Laycock, Hear-
ing on Protecting Lives and Livelihoods: Vaccine Requirements and Employee Accommodations, House Sub-
committee on Workforce Protection, 117 Cong. at 13 (Oct. 26, 2021) (“large and organized anti-vaccine 
movement”).     
23 While data have yet to be systematically collected, there are signs this is already occurring.  E.g. Michael 
Brice-Saddler and Jasmine Hilton, “Thousands of D.C. health care workers remain unvaccinated amid flurry 
of religious exemption requests,” Washington Post (Oct. 2, 2021).    

 
10 
average, orders of magnitude greater than the number of people seeking a medical exemp-
tion.  For instance, the CDC estimated that during the 2018-19 school year just 0.3% of kin-
dergarteners were medically exempt from vaccine requirements while 2.2% were exempt for 
non-medical reasons, including religious belief.24  In some states the percentage of kinder-
garteners claiming non-medical exemptions has risen as high as 7.5%, while, over a similar 
time period, no state had a rate of medical exemptions over 1.5% (with a median medical 
exemption rate of just 0.2%).25     
The number of people claiming religious exemptions is also more unpredictable.  The 
rate of people with medical exemptions is relatively constant, “showing little heterogeneity 
over time.”26    In contrast, the number of religious exemptions is much more variable over 
time, while remaining greater than the number of medical exemptions,27 making it difficult 
for policy makers to predict and contain the transmission of the disease, which in turn in-
creases the rate of disease transmission.  
Additionally, those seeking religious exemptions often cluster geographically.28  These 
clusters of unvaccinated individuals pose a greater threat to public health than if the same 
 
24 Ranee Seither, et al., “Vaccination Coverage with Selected Vaccines and Exemption Rates Among Chil-
dren in Kindergarten — United States, 2018–19 School Year,” Centers for Disease Control and Prevention 
(Oct. 18, 2019), available at https://www.cdc.gov/mmwr/volumes/68/wr/mm6841e1.htm; see also, e.g., 
Jenelle L. Mellerson, et al., “Vaccination Coverage for Selected Vaccines and Exemption Rates Among Chil-
dren in Kindergarten — United States, 2017–18 School Year,” Centers for Disease Control and Prevention 
(Oct. 18, 2018) (0.2% medical; 2.0% non-medical), available at https://www.cdc.gov/mmwr/vol-
umes/67/wr/mm6740a3.htm. 
25 Robert A. Bednarcyk, et al., “Current landscape of nonmedical vaccination exemptions in the United 
States: impact of policy changes,” 18 Expert Rev. Vaccines,  175-190 (Feb. 2019). 
26 Id.  
27 Id.  
28 See Atwell, supra, at 4. 

 
11 
number of unvaccinated individuals were evenly distributed because “having clusters of 
these susceptible children in densely populated areas further increases the likelihood of 
large outbreaks.”29  People with medical exemptions do not tend to cluster in the same way, 
and so the risks they pose are correspondingly less severe and, for that reason, not compara-
ble to those created by religious exemptions.  Id.  
III. 
Requiring Religious Exemptions Will Broadly Undermine Public Health 
A holding by this Court that states must allow religious exemptions to COVID-19 vac-
cine mandates would have broad and dangerous consequences for public health.  Such a 
holding would undoubtedly expand to other vaccine mandates, increasing the number of un-
vaccinated individuals across various contexts in which states aim to control infectious dis-
eases through vaccinations. These include healthcare institutions and emergency services, 
where workers and responders are often exposed to people who are immunocompromised; 
primary schools, with children who are vulnerable to any number of diseases like measles 
and pertussis; and institutions of higher learning, where students are routinely vaccinated 
against diseases like meningitis. These diseases are subject to vaccine mandates because of 
how communicable they are.    
Measles, for example, “is one of the most contagious diseases.”30  According to the CDC, 
it is “so contagious that if one person has it, up to 90% of the people close to that person who 
are not immune will also become infected.”31  And “[i]nfected people can spread measles to 
 
29 Bednarcyk, supra, at 180. 
30 “Transmission of Measles,” Centers for Disease Control and Prevention (Nov. 5, 2020) available at 
https://www.cdc.gov/measles/transmission.html  
31 Id.  

 
12 
others from four days before through four days after the rash appears.”32  Thus, one person 
with a religious exemption who contracts measles puts at risk everyone around them who 
cannot be vaccinated—because they are too young or medically exempt—for four days be-
fore the individual with the exemption is even aware they are sick.  And the virus  “can live 
for up to two hours in an airspace after an infected person leaves an area.”33  So if someone 
infected with measles enters a grocery store, everyone who cannot be vaccinated who enters 
that store over the next hour could be at risk as well.       
Nor is it clear how such a holding could be limited to vaccine mandates.  Should the 
Court rule that states must grant religious exemptions to vaccine mandates in this case, it 
would be only a matter of time before, say, federal prisoners demand the right to a religious 
exemption from tuberculosis testing.  The Bureau of Prisons currently allows medical, but 
not religious exemptions from such tests.34  And indeed, if healthcare workers are allowed 
religious exemptions to vaccine mandates, from what other mandates will they be allowed to 
exempt themselves?  The requirement to conduct newborn screenings?  The requirement to 
wear masks and gloves?   
Over decades of hard won lessons, the United States has dramatically reduced and 
even eradicated many diseases that once plagued earlier generations.  Vaccine mandates 
were and are an indispensable policy in this ongoing effort.  Already, in cases like the New 
York and California measles outbreaks, we have seen what happens when organized efforts 
 
32 Id.  
33 Id.  
34  “Clinical Guidance,” Federal Bureau of Prisons 3 (Feb. 2020) available at https://www.bop.gov/re-
sources/pdfs/TB_CPG.pdf  

 
13 
to undermine vaccine mandates succeed.  So far, states have been able to limit the damage 
from those efforts by eliminating religious exemptions.  But should the Court hold that such 
exemptions are constitutionally required, states would lose that tool.  The consequences for 
public health would be  predictable and disastrous.  For that reason, and for those offered 
above, we urge this Court to reject claims for religious exemptions from COVID-19 vaccina-
tion mandates.  
CONCLUSION 
The decision below should be affirmed.  
Respectfully submitted. 
 
 
ELISABETH S. THEODORE 
Counsel of Record 
JOHN B. “JAY” SWANSON 
ARNOLD & PORTER  
KAYE SCHOLER LLP 
601 Massachusetts Ave., NW 
Washington, DC 20001 
(202) 942-5000 
elisabeth.theodore@ 
arnoldporter.com 
 
Counsel for Amici Curiae 
 
OCTOBER 2021 
 

1a 
APPENDIX 
 
PUBLIC HEALTH ASSOCIATIONS AND SCHOLARS OF PUBLIC HEALTH 
AS AMICI 
 
This Appendix provides amici’s titles and institutional affiliations for identifi-
cation purposes only.  The listing of these affiliations does not imply any endorse-
ment of the view expressed herein by amici’s institutions.  
 
 The American Public Health Association 
 Vaccinate Your Family 
 National Consumers League 
 Immunization Action Coalition 
 Arizona Partnership for Immunization 
 Dorit R. Reiss, Professor of Law  and the James Edgar Hervey Chair in Litigation 
at the University of California, Hastings College of the Law 
 Wendy E. Parmet, George J. and Kathleen Waters Matthews Distinguished Profes-
sor of Law and Professor of Public Policy and Urban Affairs at Northeastern Uni-
versity, 
 Lance Gable, JD, MPH, Professor of Law, Wayne State University Law School 
 Lindsay F. Wiley, Professor of Law & Director, Health Law & policy Program, 
American Univ. Washington College of Law 
 Rene e M. Landers,  Professor of Law and Faculty Director, Health and Biomedical 
Law Concentration and Master of Science in Law, Life Sciences Program, Suffolk 
University Law School 
 Stacie Kershner, JD, Associate Director, Center for Law, Health & Society, Georgia 
State University College of Law 
 Scott Burris, Professor and Director, Center for Public Health Law Research, Tem-
ple University Beasley School of Law 
 Robert I. Field, Drexel University Thomas R. Kline, School of Law and Dornsife 
School of Public Health 
 Jonathan D. Kahn, Northeastern University School of Law 
 Prof. Cason D. Schmit, JD, Assistant Professor,  Texas A&M University School of 
Public Health 

2a 
 Jennifer D. Oliva, Associate Dean for Faculty Research & Development, Professor 
of Law, Director, Center for Health & Pharmaceutical Law, Seton Hall University 
School of Law 
 Marice Ashe, JD, MPH, Lecturer, Univ. of California Berkeley Law 
 Christopher T. Robertson, Professor of Law, Boston University 
 Kayte Spector-Bagdady, JD, MBe, Assistant Professor of Obstetrics & Gynecology, 
University of Michigan Medical School 
 Peter D. Jacobson, JD, MPH, Professor Emeritus of Health Law and Policy, Univer-
sity of Michigan School of Public Health 
 Ani B. Satz, J.D., Ph.D., Professor of Law & Public Health, Emory University, 
 Leslie Francis, University of Utah 
 Michael S. Sinha, MD, JD, MPH, Adjunct Faculty, Northeastern University School of 
Law, Visiting Scholar, NUSL Center for Health Policy and Law 
 Sharona Hoffman, J.D., LL.M., S.J.D., Professor of Law & Bioethics, Edgar A. Hahn 
Professor of Jurisprudence Co-Director, Law-Medicine Center Case Western Re-
serve University School of Law 
 Lawrence O. Gostin, University Professor, Founding O'Neill Chair in Global Health 
Law, Faculty Director, O'Neill Institute for National and Global Health Law, Direc-
tor, World Health Organization Collaborating Center on National & Global Health 
Law 
 Arthur L. Caplan Mitty Professor of Bioethics, Head, Division of Medical Ethics, 
NYU Grossman School of Medicine 
 Michael R. Ulrich, Assistant Professor of Health Law, Ethics & Human Rights, Bos-
ton University School of Public Health and School of Law

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