Ninth Circuit Court Upholds COVID-19 Shot Mandate

The U.S. Court of Appeals for the 9^th circuit rejected a challenge to the Los Angeles Unified School District (LAUSD) COVID-19 shot mandate. The Los Angeles public school system is the largest in California and mandated the controversial shot for all employees in 2021.¹ The mandate was issued after the U.S. Centers for Disease Control and Prevention (CDC) stated that the COVID shots “are highly effective at protecting vaccinated people against symptomatic and severe COVID-19” and “[f]ully vaccinated people are less likely to become infected” and “less likely to get and spread SARS-CoV-2.”²

In November 2021, Plaintiff employees who faced termination for declining the shot challenged the mandate in court. Plaintiffs relied on equal protection claims under 42 U.S.C. §1983 and the U.S Constitution, arguing that the mandate violated their 14^th Amendment substantive due process rights. Plaintiffs assert that the COVID shot mandate violated their fundamental right to bodily integrity because the shot is not a vaccine as it does not prevent transmission of infection. Instead, it is a medical treatment that may, at best, help reduce symptoms of the virus.  Plaintiffs highlighted the significantly higher rate of adverse events from the COVID-19 shot compared to other vaccines.³

Plaintiffs claim that the vaccine mandate violated their equal protection rights as it arbitrarily classifies LAUSD employees based on their vaccination status since both vaccinated and unvaccinated employees are capable of being infected with and transmitting the virus to other people.

No Fundamental Right Violation, Rational Basis Test Used

In September 2022, the district court, relying on the seminal 1905 U.S. Supreme Court decision in Jacobson v. Massachusetts that affirmed the constitutional right of state governments to mandate vaccines and granted Defendants motion for a judgment on the pleadings. The district court found that the COVID vaccine mandate did not violate any fundamental rights of individuals. The court used the rational basis test for both the substantive due process rights claim and the equal protection claim.

Courts evaluate U.S. constitutional claims of substantive due process and equal protection violations using one of three forms of review; the rational basis test, intermediate scrutiny or strict scrutiny. The rational basis analysis requires that the statute in question have a legitimate state interest and that there is a rational connection between the statute and the government’s goals. The rational basis test is the least strict of the scrutiny evaluations used by courts and laws are generally upheld under this analysis. It is used when there is no violation of one’s fundamental rights or there is no suspect class.⁴

Eleven-Judge Panel Appellate Review is Granted

The Plaintiffs appealed the district court decision. The three judge Appellate panel vacated the order and remanded the case back to the district court.  The three-judge panel found that Jacobson v Masschusetts, which endorsed mandatory smallpox vaccinations, did not apply because it only applied to vaccines that provided immunity and prevented transmission. However, it is important to note that the judges were constrained at that stage of litigation to take plaintiff’s allegations as true and plaintiffs argued that the COVID shot did not offer immunity or prevent transmission of the SARS-CoV-2 virus. The defendants petition for a rehearing before an eleven-judge panel was granted. This decision stems from that eleven-judge panel ruling.⁵

Any Rationally Based Decision Will be Upheld

The Appellate Court addressed the due process claim using the rational basis test stating that the standard is whether the government could have had a legitimate reason for implementing the mandate. The rational basis test is lenient and permits any conceivable rational based decision to survive. The panel agreed with prior courts that the Supreme Court ruling in Jacobson v. Massachusetts was controlling when deciding whether COVID shot mandates were constitutional.⁶

In Jacobson v Massachusetts, the U.S. Supreme Court heard a substantiative due process challenge to the Massachusetts law requiring all adults to get the smallpox vaccine or pay a five-dollar fine. The court determined that pastor Henning Jacobson did not have a fundamental right to refuse vaccination so the court used the rational basis standard of review was.⁷

The highest court in the land concluded that the U.S. Constitution doesn’t guarantee freedom at all times because every individual is subject to “manifold restraints” necessary for the “common good”. State legislatures can mandate vaccine laws during smallpox epidemics to “secure the general comfort, health and prosperity of the state.”⁸

If Reasonable, Even Faulty Government Decisions Will Be Upheld

The eleven-judge panel stated that Jacobson v Massachusetts held that the constitutionality of a vaccine mandate rests on whether the government could have reasonably determined that the vaccine being mandated protects the public’s health and safety rather than whether the vaccine actually does protect the public’s health and safety.⁹

The court wrote:

Jacobson simply does not allow debate in the courts over whether a mandated vaccine prevents the spread of disease. Jacobsen 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.¹⁰

The Appellate court, applying the reasoning from the Supreme Court decision in Jacobson v Massachusetts, determined that defendants reasonably concluded the COVID-19 shot would protect the health and safety of its employees and students. The judges explained that the ruling in Jacobson v. Massachusetts did not require that the vaccine in question prevent the spread of disease and provide immunity to the recipient. The court also rejected Plaintiff’s argument that more recent cases that have recognized a fundamental right to refuse medical treatment were applicable and stated that these cases did not overturn the 120-year old ruling in Jacobson v Massachusetts.¹¹

One Dissenting Opinion Argues the Case is Moot

Judge Owens wrote one of the dissenting opinions. He found that the case was moot and should not have been heard on the merits. At issue is the fact that the defendant’s repealed the COVID shot mandate prior to the matter reaching the courts, therefore it was not a triable issue before the court. The majority opinion found that the issue was not moot because the defendants could reinstate the policy at any time.

Another Dissent Warns Against Government Overreach

Judge Lee joined by Judge Collins wrote an opinion dissenting in part to the majority.

Judge Lee warned:

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.” 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 Los Angeles Unified School District (“LAUSD”) here. Faithful adherence to Supreme Court precedence confirms that we should not blindly accept the mere say-so of the government.¹²

Judge Lee further points out that Jacobson v Massachusetts, which upheld the constitutional authority of states to implement vaccine mandates, only applies to vaccines that prevent transmission and the spread of disease. If plaintiff’s allegation that the COVID-19 shot does not prevent transmission or the spread of the virus are taken as true, which they should be at this stage of litigation, then the rationale used in Jacobson v Massachusetts to support applying the rational basis test does not apply. The COVID shot mandate should, therefore, be examined using a stricter standard.

Judge Lee concluded:

Ultimately the plaintiffs may be wrong about the COVID-19 vaccine, but they should be given a chance to challenge the government’s assertion about it.

If you would like to receive an e-mail notice of the most recent articles published in The Vaccine Reaction each week, click here.