With the delta variant of COVID-19 on the rise, Americans remain split about whether to get vaccinated. Now there’s a new front in the vaccine wars, as judges in several states are requiring defendants on probation to get vaccinated.

Probation is an alternative to jail where an offender remains in the community but must follow conditions imposed by the court or risk a jail term. While courts have a lot of leeway about what conditions to impose, requiring vaccination as a probation condition is new, untested, and sure to be controversial.

Courts Linking Vaccine to Probation

When Brandon Rutherford pleaded guilty to fentanyl possession in Hamilton County, Ohio, he wasn’t vaccinated and didn’t want to be. Judge Chris Wagner granted probation but ordered that Rutherford get vaccinated for COVID-19 within two months. If he does not comply, the court can revoke his probation and send the 21-year-old to jail.

Judge Wagner is not the first to mandate vaccinations in Ohio during the pandemic. Several months before that hearing, Franklin County Common Pleas Judge Richard Frye started requiring offenders to get vaccinated. Other Ohio judges offered to reduce the probation period if the offenders got vaccinated, and several Louisiana judges offer community service credit if defendants get the COVID-19 vaccine.

Is It Legal?

Rutherford does not want to get vaccinated. “I don’t plan on getting it,” he said. “I don’t want it.” His attorney, Carl Lewis, doesn’t believe that the judge will send Rutherford to jail if he refuses to get vaccinated and doesn’t think that judges are “within their powers to do that.”

But are they? Judges around the country are given broad authority to set probation conditions to rehabilitate defendants and protect the public. Courts regularly include conditions related to an offender’s health, like ordering drug, alcohol, and mental health treatment.

That doesn’t convince everyone. While drinking and taking drugs might cause someone on probation to return to a life of crime, getting vaccinated doesn’t have anything to do with preventing subsequent crimes. Conditioning probation on matters unrelated to a person’s criminal behavior is, some claim, an abuse of discretion.

On the other hand, most COVID-19 vaccine mandates are not put in place by normal lawmaking, but rather using public health emergency powers. Allowing a judge to condition probation on those vaccines can be seen as a natural extension of this.

So far, no court has directly addressed whether it is legal to condition probation on a COVID-19 vaccination. So what’s an anti-vaxer to do if a court orders vaccination as part of probation?

Filing a lawsuit is one option, but it will take time and cost money. Until appellate courts resolve the matter, it might be easiest and cheaper for a defendant to go ahead and get vaccinated.