Compulsory vaccination is back on the federal docket

The pandemic may be over but the legal debate over vaccine mandates — and if government can ever order Americans to take injections — is raging still, most recently in a case known as Health Freedom Defense Fund v. Alberto Carvalho, the superintendent of the Los Angeles Unified School District.

Two weeks ago, the New Civil Liberties Alliance (NCLA) filed an amicus curiae brief urging the U.S. Court of Appeals for the Ninth Circuit to allow Health Freedom Defense Fund’s (HFDF) lawsuit to proceed. The plaintiffs launched the lawsuit contesting the Los Angeles Unified School District’s (LAUSD) Covid-19 vaccine mandate for employees in 2021, but it was dismissed by the central district court of California. 

A three-judge panel of the Ninth Circuit reversed the dismissal, and NCLA is urging the entire appeals court for the ninth circuit to weigh in in favor of letting the lawsuit proceed.

The case is about a lot more than the school district’s 2021 vaccine mandates. It involves the interpretation of a landmark U.S. Supreme Court case known as Jacobson v. Massachusetts, in which the court upheld a Cambridge, Massachusetts, smallpox vaccination mandate during a 1902 outbreak.

Many, if not most, courts have interpreted the decision to mean that any mandate of a medical treatment labeled a “vaccine” is constitutional.

That’s a wrong interpretation, NCLA argues. Instead, the group argues, Jacobson applies only to mandatory vaccinations that stop a virus’s transmission to third parties and thereby benefit the public, not just the recipient.

In this case, the appeals panel upheld the latter interpretation and found the plaintiffs had alleged facts that, if true, established that the Covid-19 vaccines do not stop third-party transmission and so are not governed by Jacobson. 

NCLA is asking the full Ninth Circuit to affirm its interpretation of Jacobson. The government’s ability to order widespread compulsory vaccination hangs in the balance.

Jacobson came into sharp focus during the Covid pandemic, with many lower courts sanctioning mandates based on a broader reading of the case. The U.S. Supreme Court has not ruled on the matter.

NCLA litigation counsel Jenin Younes said the three-judge panel of the ninth circuit correctly limited Jacobson’s application to vaccines that stop transmission. 

“Too many courts succumbed to panic in the midst of the Covid-19 pandemic,” Younes said. “Allowing the government to mandate medical treatments for the benefit of the recipient alone is a slippery slope that would grant government control over all sorts of personal health decisions. It is crucial that the en banc court adopt the panel’s determination, which appropriately balanced individual liberty interests against the interests of the state.”

Greg Dolin, NCLA’s senior litigation counsel, said various courts had misread Jacobson for too long.

“The panel of the Ninth Circuit got it right,” he said. “While under Jacobson, the government can take measures to protect public health, it has no power to force citizens to submit to medical intervention simply because the government believes such intervention is good for them. The en banc court should reaffirm the panel’s holding.”

The details of the case

NCLA’s brief summarized the history of LAUSD’s mandate, and argued that it was important to understand the limited nature of the panel’s decision. 

“The court did not hold that Jacobson is irrelevant to the analysis of a vaccine mandate’s constitutionality or even that Jacobson definitively did not govern the inquiry in this case,” the brief states. “Rather, the panel merely held that the allegations in the plaintiffs’ complaint survived a motion to dismiss because, when taken as true (as they must be at this stage), the case is distinguishable from Jacobson.”

The panel correctly cabined Jacobson’s application to mandatory vaccinations that stop transmission and therefore provide a benefit to the public, Younes and Dolin wrote. 

“In contrast, when vaccinations (or other medical interventions) benefit primarily the recipient, mandates implicate a fundamental liberty interest in bodily autonomy that tends to outweigh the state’s interest,” the brief stated. “The panel decision not only correctly interpreted Jacobson, but also — and in contrast to other courts addressing the issue — reconciled that case with ‘a distinct and more recent line of Supreme Court authority’ which has been more protective of bodily autonomy.”

Throughout the Covid-19 era, Younes and Dolin asserted, courts have wrongly, often with little, no, or misguided analyses, held that under Jacobson, virtually any public-health measure adopted during a pandemic warrants rational basis review only, effectively rubber-stamping all vaccine mandates.

“But even a cursory examination of Jacobson shows that this broad reading was always erroneous, and it is especially problematic in light of subsequent Supreme Court authority,” the attorneys wrote. “In contrast, the panel correctly held that ‘the district court misapplied the Supreme Court’s decision in Jacobson …, stretching it beyond its public health rationale.’” 

Though Jacobson has never been overruled and thus remains binding on the courts, the attorneys asserted, there were several reasons why the en banc panel should not blindly rely on that case to uphold LAUSD’s challenged mandate, saying it ought to uphold the three-judge panel’s initial determination instead.

For one thing, the NCLA argued, the Jacobson court did not and could not have applied rational basis review to the smallpox vaccine mandate. Under rational basis review, a law must only be related to a legitimate government interest to be constitutional.

But rational basis review did not exist then, the lawyers argued.

“Jacobson was decided before the Supreme Court adopted the tiers of review with which modern lawyers are familiar,” the brief asserted.

Still, even if those tiers of review existed, the brief states, the court clearly engaged in something more robust than mere rational-basis review. 

“Jacobson explicitly required the government to demonstrate a ‘substantial relation’ between its articulated goal and the law in question and recognized the ‘inherent right of every freeman to care for his own body and health in such way as to him seems best,’” the brief stated. “That is a far more exacting standard than rational basis, which requires only that the government posit some interest and a rational connection between the challenged law and the alleged interest.”

Put otherwise, the attorneys wrote, a “substantial relation” is a higher bar than a “rational connection.”

What’s more, the attorneys wrote, rational basis does not entail any assessment of an individual’s liberty rights. 

“But the Jacobson court took into account the significant liberty interests at stake, explaining that it was balancing jacobson’s liberty interest in declining the unwanted vaccine against the state’s interest in preventing smallpox from spreading,” the brief states. “It was only because ‘the spread of smallpox’ ‘imperiled an entire population,’ that the state’s interest in ‘stamp[ing] out the disease of smallpox’ outweighed Rev. jacobson’s liberty interests.”

Thus, Younes and Dolin conclude, Jacobson did not employ the equivalent of rational basis analysis.

“Properly read then, Jacobson requires that, at a minimum, the government articulate a ‘substantial relation’ (rather than merely a ‘rational’ one) between the Covid vaccine mandate and ‘protection of the public health and the public safety,’” they wrote. “That standard is beyond debate, since the court used this precise language in its decision.”

Later court decisions favored liberty

Beyond Jacobson, NCLA argues, subsequent Supreme Court decisions have heightened protections for bodily autonomy that originated in common law.

“Though the Jacobson court permitted Massachusetts to impose the vaccination requirement on individuals ‘residing or remaining in any city or town where smallpox is prevalent,’ it also recognized ‘the inherent right of every freeman to care for his own body and health in such way as to him seems best,’” Younes and Dolin observed. “This concession is not surprising because this idea long pre-dates the constitution.”

For instance, the attorneys argued, in common law, even the touching of one person by another without consent and a legal justification was a battery, and over the subsequent century, the Supreme Court reaffirmed the principle on numerous occasions. In Harper, to cite just one example, the attorneys wrote, the Supreme Court reaffirmed that “forcible injection of medication into a non-consenting person’s body represents a substantial interference with that person’s liberty.”

“In short, the governing jurisprudence that has evolved over the course of this country’s history instructs courts to assess the medical propriety of treatment by weighing the public health benefit against the individual liberty interests at stake,” the brief argues. “Government employers cannot simply require (on pain of termination) their employees to take any medication, regardless of consent, medical necessity, or various other circumstances, merely because it asserts that the treatment may be beneficial to the employee.”

Rather, the attorneys wrote, the means chosen to accomplish the government interest must be both (1) efficacious in achieving the articulated goal, and (2) balanced against individuals’ constitutional rights to bodily autonomy.

All of which leads to a central point in NCLA’s argument, namely, that jacobson’s reasoning renders it inapplicable to mandates for medical procedures that primarily benefit the recipient.

“As the panel correctly noted, jacobson’s rationale was the protection of public health, i.e., ‘government’s power to mandate prophylactic measures aimed at preventing the recipient from spreading disease to others,’” Younes and Dorian wrote. “But Jacobson said nothing about ‘forced medical treatment’ for the recipient’s benefit.”

Indeed, the attorneys asserted, irrespective of the level of scrutiny applied, Jacobson itself made clear that the result in that case did not automatically vindicate every vaccine mandate.

“In fact, the court eschewed the broad interpretation of its holding, confining it to the specific facts of that case when it wrote that it was ‘decid[ing] only that the statute covers the present case, and that nothing clearly appears that would justify this court in holding it to be unconstitutional and inoperative in its application to the plaintiff in error,’” the brief stated.

Of course, Younes and Dolin observe, both LAUSD and a number of states, led by the state of Oregon, argue that Jacobson permits mandatory vaccination for reasons other than inhibiting transmission to third parties, such as for the benefit of the recipient or ensuring that hospitals are not overwhelmed. 

“This interpretation of Jacobson is simply wrong, and LAUSD and the states point to nothing from Jacobson to support their claim — which is unsurprising because nothing in Jacobson supports it,” the brief states.

Indeed, the attorneys wrote, Jacobson limited its own applicability to vaccines that prevent transmission of a particularly deadly contagious disease. 

“The smallpox vaccine is a sterilizing vaccine, meaning that it stops transmission to third parties,” the brief asserts. “The Covid-19 vaccines are not sterilizing vaccines, so they do not stop transmission to third parties. Hence, Jacobson may not be read to allow government to require health measures that benefit only the recipient himself or herself.”

As for justifying compelled medical treatments to cure hospital overcrowding, that would open up a slippery slope, Younes and Dolan asserted.

“Indeed, if ensuring the medical system is not overburdened (and with no showing of an emergency on that front) constituted a valid reason to mandate health measures, the government could mandate alcohol abstention, staying within a certain weight range, and exercising regularly,” they reasoned. “LAUSD’s and amici’s approach would eviscerate all limits on governmental powers to intrude on medical and bodily autonomy recognized in Cruzan, Glucksberg, Harper, and other cases.”

After all, they argued, if the government’s mere representation that it needs to mandate certain medical treatments to prevent ‘overburdening” the hospital system sufficed to show a substantial state interest, it would follow that the government could force anyone to submit to any preventative medical intervention. 

“This cannot be (and is not) the law,” they wrote. “Such a holding would not only radically depart from the current understanding of the limits on government’s power to force medical treatments, it would obliterate those limits.”

The court should should adhere to the limiting principle that the government may mandate medical interventions only where submission to the mandate provides a significant benefit to third parties, Younes and Dolin concluded. 

“In the case of vaccines, that means that the government must show that the disease in question is particularly dangerous and that the vaccine is effective in preventing transmission to other members of the community before its use can be mandated,” they wrote. “Whatever may be said of Covid’s dangerousness, it is beyond dispute that Covid vaccines do not prevent transmission and thus provide no benefits to third parties, because they do not protect them from contracting the disease.”

Finally the attorneys wrote, not only did LAUSD know, or should have known, that Covid-19 vaccines were non-sterilizing (did not stop transmission), but it has also became clear that the vaccines have side effects, sometimes serious and even deadly.

“For example, recent studies have demonstrated that the Covid-19 vaccines appear to increase other infections, Covid-19 reinfection rates, appendicitis, abnormal menses, and myopericarditis (inflammation of the heart tissue and/or lining of the heart), and reduce white blood cell and platelet counts,” the brief states. “That does not mean the risks of the vaccine are not outweighed by the benefits for many or even most people (though that might indeed be the case for children enrolled in the LAUSD). But it does elucidate the problems with mandating a new or experimental vaccine, and it further corroborates the plaintiffs’ position that Jacobson cannot be read to automatically greenlight any mandate of a medical treatment labeled a vaccine — as the three-judge panel of this court wisely recognized.”

Indeed, the attorneys contended, according to jacobson’s own reasoning, courts should take particular care to examine vaccine mandates when the vaccine’s administration might well be injurious to the subject.

“When a vaccine — especially a relatively new one with unknown long-term effects — has not been shown to stop transmission and the disease at issue presents a minimal risk to most, the individual’s liberty interest will generally surmount the state’s interest in mandatory vaccination, unless the government demonstrates some other significant interest in imposing the requirement beyond the benefit to the individual recipient,” Younes and Dolin wrote.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.