Ninth Circuit Supports Jacobson Public Health Doctrine, But Accepts “Non-Traditional” Covid Vaccines May In Fact Be Treatments (and Hence Should Not Have Been Mandated)

By Lambert Strether of Corrente.

The instant case for this post is the Ninth Circuit’s “Health Freedom Defense Fund, Inc. v. Alberto Carvalho” (PDF), Alberto M. Carvalho being the Superintendent of the Los Angeles Unified School District (LAUSD), hereafter “Carvalho,” Health Freedom Defense Fund being “HFDF”[1]. I’m going to give an interpretation of Carvalho, but please accept my usual caveat: IANAL. Hence, my views will be both moralizing and consequentialist (even, dare I say, political). I love the law, and I think it’s important to the free society we aspire to be, but I discovered late in studying up for this post that there’s a lot more to know about the case law for Carvalho than I imagined, and managing scope is the key to project success, so I won’t even attempt to play the lawyer on TV, or, these days, I suppose TikTok. In any case, “moralizing and consequentialist” plays well in the court of public opinion!

Here is a summary of Carvalho from LexisNexis:

A split Ninth Circuit panel on Friday reversed a California federal court’s dismissal of a proposed class action challenging a recently rescinded Los Angeles Unified School District policy requiring employees to get the COVID-19 vaccine to keep their jobs, ruling that the district still has the potential to reinstate it.

To make up a word, the Nine Circuit “unmooted” a district court’s decision. From Bloomberg Law:

Los Angeles United School District officials must face a lawsuit from workers alleging the district vaccine mandate violated employees’ constitutional due process rights, a divided Ninth Circuit said Friday.

So it seems that not much has happened; the Ninth Circuit returned a case for a rework (which is why I was careful to use weasel wording in the headline: “supports” vs. “affirm” or “uphold”; “accepts… may in fact be” vs. “decides that…”). So why the excitement? And there is excitement, as we shall see.

The precedent from which the Ninth Circuit’s decision derives is Jacobson v. Massachusetts (1905) (“Jacobson”), a case that “upheld the authority of states to enforce compulsory vaccination laws.” Jacobson is therefore immediately relevant to the issue of vaccine mandates for SARS-CoV-2 (and much else, too, including Roe v. Wade, that fortunately is out of scope for this post). Moreover, Jacobson is, modulo the views of a few eugenicists conservative controversalists, the foundation of public health law in the United States. Finally, Carvalho adumbrates a path forward to bring malefactions during the development of SARS-CoV-2, both in state and civil society, into the bright arena of the courts without destroying the very notion of public health, as some sociopathic libertarians conservative and conservative-adjacent factions would very much like to do.

In this post I will, at some length, excerpt Justice Harlan’s decision in Jacobson. Then I will very briefly show how Carvalho builds on Jacobson (brief because that section of Carvalho is brief). I will then discuss some of the implications of Carvalho, and conclude.

What Jacobson Says

Politico comments on Jacobson:

[Henning] Jacobson’s [1905] claim was essentially the same as that taken for granted by vaccine skeptics today: That they have the personal liberty under the U.S. Constitution to decide for themselves whether to take the shot. Backed by a group called The Anti-Vaccination Society, Jacobson made a formidable case, incorporating many of the same arguments about freedom from government interference that are ricocheting around cable TV this summer, and mouthed by politicians. Donald Trump, after recommending at a rally on Aug. 21 that his supporters get vaccinated, quickly added after a smattering of boos: ‘But you do have your freedoms you have to keep. You have to maintain that.’

The question of whether those freedoms include refusing a legally mandated Covid-19 vaccine, should any government implement such a requirement today, has yet to come before the Supreme Court — or any court [although with Carvalo, even if merely demooted, this is no longer true]. But in the event that it does, the 116-year-old case brought by Henning Jacobson would be the standing legal precedent. In deciding whether the rules that the Jacobson decision rendered for smallpox would apply to Covid-19, today’s court would need to reckon with a different medical landscape, as well as the freighted politics of the moment.

(The whole article is worth reading, both for the portrait of Justice Harlan, and the fact that the same Court, two months later, decided the infamous Lochner v. New York (Lochner), driven into the outer darkness by the New Deal, though I’m sure that snakepit, the Federalist Society there are those who would like to reinstate it.)

Jacobson (HENNING JACOBSON, Plff. in Err., v. COMMONWEALTH OF MASSACHUSETTS), to this close reader but non-lawyer, has four important components: (1) a moral foundation[3]; (2) a theory of liberty and the State, based on that foundation; (3) a theory of expertise (to be applied in service to the State); and (4) a distinction, based on the previous three components, between reasonable and unreasonable exercises of state power, in this case whether vaccination may be mandated. Let us take each item in turn.

(1) Jacobson’s moral foundation.

We are not prepared to hold that a minority, residing or remaining in any city or town where smallpox is prevalent, and enjoying the general protection afforded by an organized local government, may thus defy the will of its constituted authorities, acting in good faith for all, under the legislative sanction of the state. If such be the privilege of a minority, then a like privilege would belong to each individual of the community, and the spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual [e.g., Henning Jacobson] who chooses to remain a part of that population.

A modern economist might regard such defiance as a free-rider problem, free-riding being deprecated. I regard as a Twentieth Century restatement of Matt 22:39: “… Thou shalt love thy neighbour as thyself.” After all, a “single individual might take the view that “Thou shalt infect thy neighhbour as thyself”; a “community” never (unless it were to be possessed by a death cult).[2]

(2) Jacobson’s theory of liberty and society. Rephrasing the above principle in Constitutional terms:

But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. 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.

(3) Jacobson’s theory of expertise.

The appellant claims that vaccination does not tend to prevent smallpox, but tends to bring about other diseases, and that it does much harm, with no good [familiar claims]. It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease, and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession. . . . A common belief, like common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legislature and the courts.. . . The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action, for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not.

Credentials, then, are not enough (and it seems that the administrative state did not exist in Harlan’s time as we know it today). I don’t have a better theory than Harlan’s, but I can see at least two problems with it: (A) What about Semmelweis? and (B) what happens when “common beliefs” have been engineered to the detriment of the common welfare? (I don’t mean by mis- and disinformation as the organs of state security would define it; I mean by the state itself, as with CDC, particularly with vaccines, but also with masks, ventilation, risk and “the Green Map”, and indeed with the abandonment of “real liberty” as defined in item (2)).

(4) Jacobson on vaccine mandates. Let’s see how items #1-#3 play out. It’s clear that Jacobson sees the justification for smallpox vaccination as preventing the transmission of the disease. Excerpts aggregated, not in order:

[M]ost [#3] of the members of the medical profession have regarded vaccination, repeated after intervals, as a preventive of smallpox; that, while they have recognized the possibility of injury to an individual from carelessness in the performance of it, or even in a conceivable case without carelessness, they generally have considered the risk of such an injury too small to be seriously weighed[#2] as against the benefits coming from the discreet and proper use of the preventive.

And:

[T]he principle of vaccination as a means to prevent the spread of smallpox has been enforced in many[#3] states by statutes making the vaccination of children a condition of their right to enter or remain in public schools.

More:

If vaccination strongly tends to prevent the transmission or spread of this disease, it logically follows [#1] that children may be refused admission to the public schools until they have been vaccinated.

More:

The latest case upon the subject of which we are aware is Viemester v. White, decided very recently by the court of appeals of New York. That case involved the validity of a statute excluding from the public schools all children who had not been vacinated. One contention was that the statute and the regulation adopted in exercise of its provisions was inconsistent with the rights, privileges, and liberties of the citizen. The contention was overruled, the court saying, among other things: ‘Smallpox is known of all to be a dangerous and contagious disease. If vaccination strongly tends to prevent the transmission or spread of this disease, it logically follows[#1] that children may be refused admission to the public schools until they have been vaccinated.

And finally:

Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government[#3] if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large[#2] was arbitrary, and not justified by the necessities of the case. We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all[#2] 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. [T]his court recognized the right of a state to pass sanitary laws, laws for the protection of life, liberty, health, or property within its limits, laws to prevent persons and animals suffering under contagious or infectious diseases, or convicts, from coming within its borders.

It’s clear, then, that Jacobson took the view that in an epidemic of smallpox — and, presumably, a pandemic of SARS-CoV-2 — could be met with vaccine mandates, because vaccines prevented the spread of smallpox. It would be a leap to say that Jacobson explicitly classifies mandated treatment of smallpox during an epidemic as “unreasonable,” not meeting “the necessities of the case,” but that is a leap that Carvalho at least enables, even if (being only a demooting of a lower court’s decision) it does not take it. Now let us turn to Carvalho.

How Carvalho Builds on Jacobson

Here is the text of Carvalho; most of the decision is taken up with demooting process, essentially because LAUSD was gaming the system. From Justia:

The plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit. During the appeal, LAUSD rescinded its vaccination policy. LAUSD then asked the court to dismiss the appeal, arguing that the case was now moot. The plaintiffs objected, arguing that LAUSD withdrew the policy because they feared an adverse ruling.

The Ninth Circuit held that the case was not moot, applying the voluntary cessation exception to mootness. The court found that LAUSD’s pattern of withdrawing and then reinstating its vaccination policies, particularly in response to litigation risk, was enough to keep the case alive.

There’s an enormous timeline showing this, in which the Ninth Circuit shares its unhappiness with LAUSD, but that is not relevant to this post. What is relevant is the merits. That section is short and sweet, and I’ll excerpt (and annotate) a good deal of it, omitting citations:

We now turn to the merits [sigh of relief –lambert]. The district court held, applying rational basis review under Jacobson, that the Policy [LAUSD’s vaccine mandate] satisfied a legitimate government purpose. But the district court’s analysis diverges from Jacobson. We thus vacate the district court’s opinion and remand.[4]

The district court relied on Jacobson to hold that the Policy was rooted in a legitimate government interest. But Jacobson does not directly control based on Plaintiffs’ allegations. In Jacobson, the Supreme Court balanced[#2] an individual’s liberty interest in declining an unwanted smallpox vaccine against the State’s interest in preventing disease[#4]. The Court explained that the “principle of vaccination” is “to prevent the spread of smallpox.”

As we show exhaustively above. More:

Id. at 31–32. Because of this, the Court concluded that the State’s interest superseded Jacobson’s liberty interest, and the vaccine requirement was constitutional. Id.

I’m not happy about this (dead) “balancing” metaphor; Justice Harlan doesn’t use it. I don’t think Jacobson “balances” liberty against the State, as if liberty were a pound of chalk, and the State were a pound of cheese. Rather, without the State (granted, as the Constitution enables it) there is no “real liberty.” This does not, however, affect the merits. More:

Plaintiffs argue that a “traditional vaccine” must provide immunity and prevent transmission, meaning that it must “prevent the spread” of COVID-19.

Since I hate “Freedom,” it’s painful for me to admit that HFDF has the right of it, but they do. Certainly “provide immunity and prevent transmission” was my assumption back in the innocent days of 2020, just as it was Harlan’s back in 1905, given my experience with childhood vaccines (a good definition of “traditional,” though I’m unhappy to see the reactionary category of “traditional” introduced). More:

Plaintiffs allege that the vaccine does not effectively prevent spread, but only mitigates symptoms for the recipient.

Once again, HFDF is correct. NC readers have known for some time that the SARS-CoV-2 vaccines do not prevent transmission, though this knowledge is still not common (a problem for #3). And now the heart of the matter>

And Plaintiffs claim that something that only does the latter, but not the former, is like a medical treatment, not a “traditional” vaccine. This interpretation distinguishes Jacobson, thus presenting a different government interest.

Boom, as we used to say. In my view, HFDF is once again correct. Hence:

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.

And the kicker:

At this stage, we must accept Plaintiffs’ allegations that the vaccine does not prevent the spread of COVID-19 as true. And, because of this, Jacobson does not apply.… It is true that we “need not [] accept as true allegations that contradict matters properly subject to judicial notice.” But even if the materials offered by LAUSD are subject to judicial notice, they do not support rejecting Plaintiffs’ allegations. LAUSD only provides a CDC publication that says “COVID-19 vaccines are safe and effective.” But “safe and effective” for what? LAUSD implies that it is for preventing transmission of COVID-19 but does not adduce judicially noticeable facts that prove this.

I, personally, am very happy to see that judicial notice need not be taken of what can only be characterized as the product of Blue MAGA/PMC brainworms (inserted into the back of the skull by CDC’s proboscis, a problem for #3, but never mind that for now). More:

We note the preliminary nature of our holding. We do not prejudge whether, on a more developed factual record, Plaintiffs’ allegations will prove true.

More fireworks to come!

Implications of the Ninth Circuit’s Approach to Carvalho

Now let’s have some fun by engaging in pure speculation. This is the consequentialist part!

(1) If “non-traditional” vaccines are in fact treatments as under Carvalho, what happens to the liability of Pfizer et al. for vaccine injury? Nothing good, I trust. Or something good, depending.

(2) I see no reason why non-pharmaceutical interventions (masking, quarantine, etc.) would not continue to be a “reasonable” exercise of the State’s police power under Jacobson. In fact, given the debacle of “non-traditional” vaccines, they might make a comeback among policy makers[6].

(3) The CDC foundation — the CDC’s private fundraising arm — has a statutory purpose under Title II of the Preventive Health Amendments of 1992:

(b) PURPOSE OF FOUNDATION.—The purpose of the Foundation shall be to support and carry out activities for the prevention and control of diseases, disorders, injuries, and disabilities, and for promotion of public health.

Here, “prevent and control” are given equal weight (even if prevention is first). But could Jacobson be used to make a case that prevention should be given priority? Perhaps in line with the Precautionary principle?

(4) In line with the previous point, Federal government funding should prioritize prevention — i.e., sterilizing (“traditional”) vaccines, and not treatment, on grounds of cost alone (“prevention is cheaper than cure”).[5]

(5) And how about CDC’s attempts to solve the problem that vaccines weren’t “traditional” by simply redefining the term? From (sigh) the Gateway Pundit:

The Gateway Pundit previously reported that the Centers for Disease Control and Prevention (CDC) had modified the definition of “vaccine” to include the mRNA shots.

So, look at what the CDC did. Here’s the definition the CDC used on 26 August 2021:

Vaccine– “a product that stimulates a person’s immune system to produce immunity to a specific disease.”

Vaccination– “the act of introducing a vaccine into the body to produce immunity to a specific disease.”

Rather than admit the COVID-19 vaccine is not working as advertised, the CDC took a page out of Orwell’s 1984 and opted for new spin language.

Here is the new definition:

Vaccine– “a preparation that is used to stimulate the body’s immune response against diseases.”

It can be recalled that Pfizer’s President of International Developed Markets, Janine Small, admitted in an EU hearing that the vaccine had never been tested on its ability to prevent transmission, contrary to what was previously advertised.

(Again, a problem for #3.) I don’t know if CDC can be sued for this, but perhaps people who relied on a demonstrably unreliable agency could be. A novel theory!

Readers, thoughts? Especially the lawyers among you?

Conclusion

Another summary of Jacobson, (#1 and #2) from Louisiana State Law Center:

With this language, the Court stated the basic bargain of civilization: an individual must give up some personal freedom in exchange for the benefits of being in a civilized society. Jacobson sought to enjoy the benefit of his neighbors being vaccinated for smallpox without personally accepting the risks inherent in vaccination. The Court rejected Jacobson’s claim which it viewed as an attempt to be a free-rider on society.

This is the language upon which public health depends. I have a ton of headlines and quotes showing conservative triumphalism at Carvalho’s outcome, but as long as these principles are upheld, I’m more than happy to throw Pfizer (and CDC) under the bus, and if the conservatives are doing the throwing, they’re doing the Lord’s work, bless their hearts. Of course, for some that’s not enough. Let me quote the most extreme case I found. From Tennessee Stands:

The court unfortunately holds that Jacobson would still apply in a situation where an actual vaccine would be necessary to save the lives of others. In other words, the belief is that governmental authority has a power to mandate vaccination where it has an impact on the safety of other individuals. But they would not have the power to mandate medical treatment that would only have implications to your own wellbeing or safety. They glean from common-law tradition that one has a right to “refuse unwanted medical treatment,” but apparently only in the case that this treatment does not carry potential implications for others.

In light of that, this is not really a ruling that bolsters the ideas of medical freedom that so many are working towards.

That lets the cat out of the bag on “medical freedom,” doesn’t it? Those are the stakes. That is the goal that the troops have. The suaver goons of the Federalist Society, higher up, along with an unknown number of Supreme Court justices, have the same goal. Fortunately, Carvalho makes that goal harder for them to achieve, in three ways: (1) by splitting off treatment from vaccines, Carvalho preserves “traditional vaccines” from conservative assault, while (2) adumbrating a path to hold Pfizer accountable, and (3) preserving Jacobsen’s moral theory and theory of liberty and society, both essential for preserving public health in principle and as a function of the State’s police power.

NOTES

[1] The rule for truncating case names to use the first party in the “caption” except when that would be ambiguous. Since the Health Freedom Defense Fund is in the business of bringing cases, “Carvalho.” That makes me happy, because when I hear the word “freedom,” my first instinct is to look for the con.

[2] After all, in a pandemic, what’s a better operational definition of neighborliness than making sure shared air is safe?

[3] I said I would moralize!

[4] I’ve always loved this Peter Arno New Yorker cartoon:

[5] It’s worth noting that if Operation Warp speed had prioritized the development of even one sterilizing (probably nasal) vaccine, Carvalho might never have reached the Ninth Circuit.

[6] The religious whackjobs Those overly deferential to “things unseen” have their knickers in a twist to this very day about restrictions on church services, because states and localities imposed non-pharmaceutical interventions along business lines (restaurants, bars, churches, etc.). Hence the whole body of First Amendment law kicked in. If instead the interventions had been aerosol-driven, they would have been based on physical spaces and patterns of air circulation within them. All the business would have been treated according to the same metrics, with no distinction between them. I would guess the Pharisees those beknickered would remain beknickered, but I think that would have been more difficult for them; the church, after all, would not be regulated as a church, but as a space with certain material characteristics.