Can the Government Mandate a Vaccine for Your Own Good? This Federal Court Says Yes.

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 disease transmission, so requiring them amounts to paternalistic intervention rather than protection of the general public. Last summer 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 2021 COVID-19 vaccine mandate that the Los Angeles Unified School District (LAUSD) imposed on its employees, 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, even if they have no effect on other people.

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 featured dueling interpretations of Jacobson that reflected different understandings of “public health.”

Is that rationale for government action limited to external threats such as disease carriers and air pollution, where someone’s actions risk harming others, or does it extend to self-regarding decisions that do not impinge on other people’s rights, 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.

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 that danger and noted “the common belief,” supported by “high medical authority,” that vaccination was effective at addressing it. The Court rejected the premise that people may do as they like “regardless of the injury that may be done to others.”

That concern about injury to others, the plaintiffs in the 9th Circuit case argued, did not apply in the context of COVID-19 vaccine mandates. While smallpox vaccination effectively curtailed the spread of disease, they said, COVID-19 vaccines do not prevent infection or transmission, although they may reduce symptom severity in people who receive them.

The LAUSD argued 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 initial expectations, based on clinical trials, that the vaccines would effectively retard the spread of COVID-19 were contradicted by real-world experience, especially with emerging variants of the virus.

In 2024, a three-judge 9th Circuit panel deemed that point relevant. The majority
noted that Jacobson ”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.’”

When an 11-judge panel reheard the case, however, the majority concluded that the LAUSD mandate’s constitutionality depended 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.” Since the plaintiffs conceded that COVID-19 vaccines “lessen the severity of symptoms for individuals who receive them,” the court said, the policy easily passed muster.

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,” two dissenting judges complained. That logic, they warned, “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.’”

The implications of the 9th Circuit’s decision extend beyond coercive medical treatment. The court’s expansive understanding of “public health and safety” obliterates the distinction between public and private, justifying forcible intervention whenever the government thinks it will protect recalcitrant individuals from disease or injury.

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