Upholding a Vaccine Mandate, the 9th Circuit Embraces an Alarmingly Broad Definition of 'Public Health'
The appeals court held that the government may require COVID-19 shots based purely on the benefits to recipients.
Defending COVID-19 policies against legal challenges, government officials relied heavily on Jacobson v. Massachusetts, a 1905 case in which the U.S. Supreme Court upheld a smallpox vaccine mandate imposed by the Cambridge Board of Health. But the breadth of the license granted by that decision is a matter of dispute, even as applied to superficially similar COVID-19 vaccination requirements. Critics of those mandates argued that COVID-19 shots, unlike smallpox vaccination, do not prevent transmission of the disease, which means that requiring them amounts to paternalistic intervention rather than protection of the general public.
Last week in Health Freedom Fund v. Carvalho, the U.S. Court of Appeals for the 9th Circuit dismissed that distinction as constitutionally irrelevant. Rejecting a challenge to a COVID-19 vaccine mandate that the Los Angeles Unified School District (LAUSD) imposed on its employees in 2021, the majority held that the district "could have reasonably concluded that COVID-19 vaccines would protect the health and safety of its employees and students." The implications of the 9th Circuit's decision for the right to bodily integrity are alarmingly broad, since the court's logic would seem to bless all manner of medical mandates that the government views as beneficial to the patient, regardless of any purported effect on third parties.
The plaintiffs in the 9th Circuit case, including LAUSD employees who were fired because they refused to comply with the vaccine requirement, argued that Jacobson did not authorize that policy. Their case features dueling interpretations of Jacobson that in turn reflect different understandings of "public health." Is that rationale for government action limited to external threats such as those posed by disease carriers and air pollution, or does it extend to self-regarding decisions such as lifestyle choices and consent to medical treatment? The 9th Circuit's ruling implicitly embraces the latter view, which invites far-ranging, open-ended interference with individual freedom.
The 120-year-old Supreme Court case at the center of this controversy involved Henning Jacobson, a minister of the Swedish Evangelical Lutheran Church in Cambridge, who refused to comply with the city's vaccination mandate, citing a bad smallpox vaccine reaction he had experienced as a child. He also refused to pay the resulting $5 fine, arguing that the Massachusetts law violated the 14th Amendment's guarantees of due process, equal protection, and "privileges or immunities."
In Jacobson, the Supreme Court weighed "the inherent right of every freeman to care for his own body and health in such way as to him seems best" against the government's interest in "preventing the spread of smallpox." The majority repeatedly referred to the latter danger and noted "the common belief," supported by "high medical authority," that vaccination was effective at addressing it.
"There are manifold restraints to which every person is necessarily subject for the common good," Justice John Marshall Harlan said in the majority opinion. "Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others."
But the Court also said a state's public health authority has limits. "An acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons," Harlan wrote. "If a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."
The plaintiffs in Health Freedom Fund v. Carvalho argued that the LAUSD's vaccine mandate presented such a situation because the policy had no "substantial relation" to the goal that the Supreme Court thought justified Cambridge's requirement. While smallpox vaccination was effective at curtailing the spread of disease, they said, COVID-19 vaccines do not prevent infection or transmission, although they may reduce symptom severity in people who take them. The LAUSD disputed that characterization to some extent, arguing that COVID-19 vaccination does make transmission less likely, or at least that it was reasonable to think so when the mandate was adopted. But this much is clear: Initial expectations, based on clinical trials, that the vaccines would be highly effective at retarding the spread of COVID-19 were contradicted by real-world experience, especially with emerging variants of the virus.
That realization was reflected in messaging from the Centers for Disease Control and Prevention (CDC). As of July 2021, the CDC was saying "fully vaccinated people are less likely to become infected" and "less likely to get and spread" COVID-19. By August 2024, the CDC was no longer touting those purported benefits, instead saying that COVID-19 vaccines "are effective at protecting people from getting seriously ill, being hospitalized, and dying."
That shift, the plaintiffs who sued the LAUSD argued, showed that COVID-19 shots are "designed to reduce symptoms in the infected vaccine recipient rather than to prevent transmission and infection," meaning they should be viewed as a "medical treatment" rather than a "traditional" vaccine. Dale Fischer, a judge on the U.S. District Court for the Central District of California, did not think that difference mattered.
"Jacobson does not require that a vaccine have the specific purpose of preventing disease," Fischer wrote in September 2022, when he issued a judgment in the LAUSD's favor. He also rejected the plaintiffs' claim that the vaccine mandate impinged on a fundamental right to bodily autonomy, making it subject to "strict scrutiny" as an alleged violation of substantive due process.
Under Jacobson, Fischer said, the proper test was whether the LAUSD had a "rational basis" for its policy. That highly deferential test asks only whether there is a "rational connection" between a policy and a legitimate government purpose. As Fischer noted, quoting the Supreme Court, judges "hardly ever" strike down a policy under that standard. In this case, Fischer thought it was easily met. Even if COVID-19 shots do no more than protect recipients from serious illness and death, he concluded, "these features of the vaccine further the purpose of protecting LAUSD students and employees from COVID-19," so "the Court finds the Policy survives rational basis review."
A 9th Circuit panel took a different view of the matter. "Jacobson held that mandatory vaccinations were rationally related to 'preventing the spread' of smallpox," the two-judge majority said when it revived the lawsuit in June 2024. "Jacobson, however, did not involve a claim in which the compelled vaccine was 'designed to reduce symptoms in the infected vaccine recipient rather than to prevent transmission and infection.' The district court thus erred in holding that Jacobson extends beyond its public health rationale—government's power to mandate prophylactic measures aimed at preventing the recipient from spreading disease to others—to also govern 'forced medical treatment' for the recipient's benefit."
The LAUSD successfully sought review by an 11-judge 9th Circuit panel, which last week agreed with Fischer that Jacobson defeated the plaintiffs' constitutional claim. "Jacobson holds that the constitutionality of a vaccine mandate, like the Policy here, turns on what reasonable legislative and executive decisionmakers could have rationally concluded about whether a vaccine protects the public's health and safety, not whether a vaccine actually provides immunity to or prevents transmission of a disease," Judge Mark Bennett wrote in the majority opinion. "Whether a vaccine protects the public's health and safety is committed to policymakers, not a court or a jury. Further, alleged scientific uncertainty over a vaccine's efficacy is irrelevant under Jacobson."
That decision "simply does not allow debate in the courts over whether a mandated vaccine prevents the spread of disease," Bennett said. "Jacobson makes clear that it
is up to the political branches, within the parameters of rational basis review, to decide whether a vaccine effectively protects public health and safety."
The LAUSD's vaccine mandate "easily survives such review because (even assuming the truth of Plaintiffs' allegations) it was more than reasonable for the LAUSD to conclude that COVID-19 vaccines would protect the health and safety of its employees and students," Bennett wrote. "The [complaint] concedes that COVID-19 vaccines 'lessen the severity of symptoms for individuals who receive them.' From this, the LAUSD could have reasonably determined that the vaccines would protect the health of its employees."
Like Fischer, in other words, the 9th Circuit concluded that it does not legally matter whether COVID-19 vaccination prevents transmission of the disease. Even if the plaintiffs are right that it does not, the majority said, the expected benefits to vaccine recipients would be enough to justify the policy.
That was too much for dissenting Judge Kenneth Lee. "The majority's opinion comes perilously close to giving the government carte blanche to require a vaccine or even
medical treatment against people's will so long as it asserts—even if incorrectly—that it would promote 'public health and safety,'" Lee wrote in an opinion joined by Judge Daniel Collins. "But the many mistakes and missteps by our government and the scientific establishment over the past five years counsel caution: Their errors underscore the importance of carefully evaluating the sort of sweeping claims of public-health authority asserted by the [LAUSD] here."
Lee and Collins agreed with the plaintiffs that Jacobson applies "only if a vaccine
prevents transmission and contraction of a disease." The plaintiffs "have plausibly claimed—at least at the pleading stage where we must accept the truth of the allegations—that the COVID-19 vaccine mitigates serious symptoms but does not 'prevent transmission or contraction of COVID-19,'" Lee wrote. "And if that is true, then Jacobson's rational basis review does not apply, and we must examine the vaccine mandate under a more stringent standard. Ultimately, the plaintiffs may be wrong about the COVID-19 vaccine, but they should be given a chance to challenge the government's assertions about it."
The majority "suggests that Jacobson's reference to 'public health and public safety' is so capacious that merely 'lessen[ing] the severity of symptoms' is enough to justify a vaccine mandate," Lee said. "But nothing in Jacobson hints that just mitigating symptoms alone can count as 'public health and public safety.' The entire thrust of Jacobson is that 'public health and public safety' means protecting the mass public from the spread of smallpox. Aside from the repeated references to 'preventing the spread' of smallpox, the opinion makes many allusions to the dangers of widespread transmission of the disease among the public."
Lee noted the troubling implications of the "public health" rationale endorsed by the majority. "If we accept the majority's holding that a state can impose a vaccine mandate just to 'lessen the severity of symptoms' of sick persons—without considering whether it lessens transmission and contraction of this disease—then we are opening the door for compulsory medical treatment against people's wishes…..As a practical matter, I fear we are giving the government a blank check to foist health treatment mandates on the people—despite its checkered track record—when we should be imposing a check against the government's incursion into our liberties."
Although the 9th Circuit judges disagreed about when Jacobson applies, they all assumed that "rational basis" is the appropriate test when it does. Yet Jacobson predates the tiers of judicial review that courts today apply in constitutional cases, and the New Civil Liberties Alliance (NCLA) argues that the 1905 decision actually applied a more demanding standard.
"Jacobson explicitly required the government to demonstrate a 'substantial relation' between its articulated goal and the law in question," the NCLA says in a brief supporting the plaintiffs in the 9th Circuit case. "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, a 'substantial relation' is a higher bar than a 'rational connection.'"
The NCLA brief adds that "rational basis does not entail any assessment of the individual's liberty rights." Yet in Jacobson, the Supreme 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. 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."
Subsequent Supreme Court decisions have made it clear that "Americans possess a
constitutionally protected liberty interest in consenting to treatment and refusing
unwanted medication," the NCLA notes. "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 [the government] asserts that the treatment may be beneficial to the employee."
The LAUSD argued that Jacobson "permits mandatory vaccination for reasons other than inhibiting transmission to third parties, such as for the benefit of the recipient or ensuring the hospitals are not overwhelmed," the NCLA notes. But "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." That approach, the brief says, "would eviscerate all limits on governmental powers to intrude on medical and bodily autonomy."
The 9th Circuit's reasoning, in short, endorses a sweeping view of what it means to protect "public health and safety." That understanding obliterates the distinction between public and private, justifying forcible intervention whenever the government thinks it will protect recalcitrant individuals from disease or injury.
