Upholding a Vaccine Mandate, the 9th Circuit Embraces an Alarmingly Broad Definition of ‘Public Health’
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
Article from Reason.com
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