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Ninth Circuit:
LAUSD’s COVID-19 Vaccine Mandate Survives Scrutiny
Divided En Banc Court Disagrees With Panel Decision Reviving Lawsuit by Former Employees Challenging Policy, Says Requirement Easily Passes Applicable Rational Basis Review
By a MetNews Staff Writer
A divided en banc Ninth U.S. Circuit Court of Appeals held yesterday that a request for judgment on the pleadings was properly granted to the Los Angeles Unified School District in an action challenging, on constitutional grounds, a now-defunct rule mandating that all employees be vaccinated against COVID-19, rejecting the plaintiffs’ assertion that case law relating to mandatory inoculation policies did not apply to the purportedly less effective shots.
The court also declared that the matter is not moot even though the policy has long since been rescinded, saying that boilerplate language in the operative complaint praying for “other and further relief as the Court may deem just and proper” could be read as a request for employment reinstatement as to two of the individual plaintiffs who allege that they were terminated or “separated” from their jobs after objecting to the mandate.
At issue is what standard of review applies to the plaintiffs’ claims, filed under 42 U.S.C. §1983, asserting violations of the Equal Protection and Due Process clauses. The majority opinion, authored by Circuit Judge Mark J. Bennett, declares that the 1905 U.S. Supreme Court decision in Jacobson v. Massachusetts, which upheld a smallpox vaccine mandate as rationally related to public health concerns over the spread of the virus, controls.
Bennett’s view runs counter to last year’s decision by a three-judge panel, authored by Circuit Judge Ryan D. Nelson. In a divided opinion vacating the order granting judgment on the pleadings by Senior District Court Judge Dale S. Fischer of the Central District of California, Nelson declared that Jacobsen was not controlling because the plaintiffs in the present case had adequately alleged that the COVID-19 shots are distinguishable from typical vaccines.
En Banc Rehearing
Yesterday’s opinion, joined in by Chief Judge Mary H. Murguia and Circuit Judges Kim McLane Wardlaw, Consuelo M. Callahan, Mark J. Bennett, Bridget S. Bade, Danielle J. Forrest, Salvador Mendoza Jr., and Roopali H. Desai, follows a vote by a majority of active judges to rehear the case en banc. Bennett wrote:
“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. 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. Jacobson simply does not allow debate in the courts over whether a mandated vaccine prevents the spread of disease.”
Circuit Judge John B. Owens dissented, arguing that the case should be dismissed as moot because “[n]othing in the record (or the world) even hints at the possibility that the [district] would resurrect its COVID-19 vaccine mandate.”
Dissenting in part, Circuit Judge Kenneth K. Lee, joined in by Circuit Judge Daniel P. Collins, agreed with the majority that the appeal is not moot but said:
“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.’…Faithful adherence to Supreme Court precedent confirms that we should not blindly accept the mere say-so of the government.”
Complaint Filed
The constitutional question arose after Health Freedom Defense Fund Inc., an Idaho-based nonprofit dedicated to freedom of choice in the medical arena, and six individuals who were employees of the school district when the mandate was put into effect in the fall of 2021, filed a complaint against the Los Angeles Unified School District, challenging the policy on constitutional grounds.
Bennett noted that the Due Process Clause of the Fourteenth Amendment includes a substantive component that protects “fundamental” and traditionally-recognized individual freedoms from government interference. If no such liberty is at stake, a state action is only subjected to rational basis review.
He pointed out that the plaintiffs’ asserted fundamental right to bodily integrity in refusing medical treatment was similar to the liberty interest claimed in the Jacobson case and said that the case established that “the Constitution secured no fundamental right to be free from vaccine requirements imposed to protect the safety and health of the community.”
Remarking that “Jacobson is materially indistinguishable from this case,” he concluded that “we must apply rational basis review.”
Easily Survives
Applying that standard, he opined:
“The Policy 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. The [operative 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.”
The plaintiffs pointed to the 1990 U.S. Supreme Court case of Cruzan v. Director, Missouri Department of Health, in which the court addressed an asserted right to terminate life support. Chief Justice William Rehnquist (since deceased) wrote for the majority and said that “a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.”
Rejecting the contention that the Cruzan case and its progeny have established that a heightened standard of review applies, Bennett remarked:
“Whatever the reach of these cases, they did not overrule Jacobson….As Jacobson remains binding and squarely governs this case, we must apply it.”
Saying that “[p]laintiffs concede, and we agree, that their equal protection claim is subject to rational basis review,” he concluded that the cause of action fails “[b]ecause…the Policy is rationally related to the LAUSD’s legitimate interest in protecting the health and safety of its employees and students.”
Lee’s View
Lee wrote:
“I read the Supreme Court’s decision in Jacobson…to apply only if a vaccine prevents transmission and contraction of a disease….The plaintiffs here 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.’ 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.”
Noting that “the government—and the scientific establishment—were wrong about a lot of things” including the efficacy rate of the COVID-19 vaccines, he said the government “shifted its emphasis” about why a person should receive an inoculation to a campaign asserting that the shots reduce the severity of the disease.
Under those circumstances, he said:
“Our case is factually different from Jacobson. At the pleading stage, we must accept as true the plaintiffs’ well pleaded allegation that the newly developed mRNA COVID-19 vaccines do not effectively prevent the transmission and contraction of COVID-19 and thus more resemble medical treatments than the sort of robustly validated smallpox vaccine at issue in Jacobson.”
Opening of Door
The jurist argued:
“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. Vaccines, by definition, build immunity and prevent transmission and contraction of an infectious disease, but we risk blurring the line between vaccines and medical treatment if vaccines are defined as anything that lessens symptoms.”
He added:
“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.”
The case is Health Freedom Defense Fund Inc. v. Carvalho, 22-55908.
Bennett, Lee, and Collins were each appointed to the court by President Donald Trump.
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