By Lambert Strether of Corrente.<\/p>\n
The instant case for this post is the Ninth Circuit\u2019s \u201cHealth Freedom Defense Fund, Inc. v. Alberto Carvalho\u201d (PDF), Alberto M. Carvalho being the Superintendent of the Los Angeles Unified School District (LAUSD), hereafter \u201cCarvalho,\u201d Health Freedom Defense Fund being \u201cHFDF\u201d[1]. I\u2019m 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\u2019s important to the free society we aspire to be, but I discovered late in studying up for this post that there\u2019s 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\u2019t even attempt to play the lawyer on TV, or, these days, I suppose TikTok. In any case, \u201cmoralizing and consequentialist\u201d plays well in the court of public opinion!<\/p>\n
Here is a summary of Carvalho from LexisNexis:<\/p>\n
A split Ninth Circuit panel on Friday reversed a California federal court\u2019s dismissal of a proposed class action challenging a recently rescinded Los Angeles Unified School District policy requiring employees to get the COVID-19 vaccine to keep their jobs, ruling that the district still has the potential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.<\/p>\n
To make up a word, the Nine Circuit \u201cunmooted\u201d a district court\u2019s decision. From Bloomberg Law:<\/p>\n
Los Angeles United School District officials must face a lawsuit from workers alleging the district vaccine mandate violated employees\u2019 constitutional due process rights, a divided Ninth Circuit said Friday.<\/p>\n
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: \u201csupports\u201d vs. \u201caffirm\u201d or \u201cuphold\u201d; \u201caccepts\u2026 may in fact be\u201d vs. \u201cdecides that\u2026\u201d). So why the excitement? And there is excitement, as we shall see.<\/p>\n
The precedent from which the Ninth Circuit\u2019s decision derives is Jacobson v. Massachusetts (1905) (\u201cJacobson\u201d), a case that \u201cupheld the authority of states to enforce compulsory vaccination laws.\u201d 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.<\/p>\n
In this post I will, at some length, excerpt Justice Harlan\u2019s 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.<\/p>\n
What Jacobson Says<\/p>\n
Politico comments on Jacobson:<\/p>\n
[Henning] Jacobson\u2019s [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: \u2018But you do have your freedoms you have to keep. You have to maintain that.\u2019<\/p>\n
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 \u2014 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\u2019s court would need to reckon with a different medical landscape, as well as the freighted politics of the moment.<\/p>\n
(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\u2019m sure that snakepit, the Federalist Society there are those who would like to reinstate it.)<\/p>\n
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.<\/p>\n
(1) Jacobson\u2019s moral foundation.<\/p>\n
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.<\/p>\n
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: \u201c\u2026 Thou shalt love thy neighbour as thyself.\u201d After all, a \u201csingle individual might take the view that \u201cThou shalt infect thy neighhbour as thyself\u201d; a \u201ccommunity\u201d never (unless it were to be possessed by a death cult).[2]<\/p>\n
(2) Jacobson\u2019s theory of liberty and society. Rephrasing the above principle in Constitutional terms:<\/p>\n
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.<\/p>\n
(3) Jacobson\u2019s theory of expertise.<\/p>\n
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. <\/p>\n
Credentials, then, are not enough (and it seems that the administrative state did not exist in Harlan\u2019s time as we know it today). I don\u2019t have a better theory than Harlan\u2019s, but I can see at least two problems with it: (A) What about Semmelweis? and (B) what happens when \u201ccommon beliefs\u201d have been engineered to the detriment of the common welfare? (I don\u2019t 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 \u201cthe Green Map\u201d, and indeed with the abandonment of \u201creal liberty\u201d as defined in item (2)).<\/p>\n
(4) Jacobson on vaccine mandates. Let\u2019s see how items #1-#3 play out. It\u2019s clear that Jacobson sees the justification for smallpox vaccination as preventing the transmission of the disease. Excerpts aggregated, not in order:<\/p>\n
[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.<\/p>\n
And:<\/p>\n
[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.<\/p>\n
More:<\/p>\n
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.<\/p>\n
More:<\/p>\n
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: \u2018Smallpox 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.<\/p>\n
And finally:<\/p>\n
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.<\/p>\n
It\u2019s clear, then, that Jacobson took the view that in an epidemic of smallpox \u2014 and, presumably, a pandemic of SARS-CoV-2 \u2014 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 \u201cunreasonable,\u201d not meeting \u201cthe necessities of the case,\u201d but that is a leap that Carvalho at least enables, even if (being only a demooting of a lower court\u2019s decision) it does not take it. Now let us turn to Carvalho.<\/p>\n
How Carvalho Builds on Jacobson<\/p>\n
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:<\/p>\n
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.<\/p>\n
The Ninth Circuit held that the case was not moot, applying the voluntary cessation exception to mootness. The court found that LAUSD\u2019s pattern of withdrawing and then reinstating its vaccination policies, particularly in response to litigation risk, was enough to keep the case alive.<\/p>\n
There\u2019s 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\u2019ll excerpt (and annotate) a good deal of it, omitting citations:<\/p>\n
We now turn to the merits [sigh of relief \u2013lambert]. The district court held, applying rational basis review under Jacobson, that the Policy [LAUSD\u2019s vaccine mandate] satisfied a legitimate government purpose. But the district court\u2019s analysis diverges from Jacobson. We thus vacate the district court\u2019s opinion and remand.[4]<\/p>\n
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\u2019 allegations. In Jacobson, the Supreme Court balanced[#2] an individual\u2019s liberty interest in declining an unwanted smallpox vaccine against the State\u2019s interest in preventing disease[#4]. The Court explained that the \u201cprinciple of vaccination\u201d is \u201cto prevent the spread of smallpox.\u201d <\/p>\n
As we show exhaustively above. More:<\/p>\n
Id. at 31\u201332. Because of this, the Court concluded that the State\u2019s interest superseded Jacobson\u2019s liberty interest, and the vaccine requirement was constitutional. Id.<\/p>\n
I\u2019m not happy about this (dead) \u201cbalancing\u201d metaphor; Justice Harlan doesn\u2019t use it. I don\u2019t think Jacobson \u201cbalances\u201d 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 \u201creal liberty.\u201d This does not, however, affect the merits. More:<\/p>\n
Plaintiffs argue that a \u201ctraditional vaccine\u201d must provide immunity and prevent transmission, meaning that it must \u201cprevent the spread\u201d of COVID-19. <\/p>\n
Since I hate \u201cFreedom,\u201d it\u2019s painful for me to admit that HFDF has the right of it, but they do. Certainly \u201cprovide immunity and prevent transmission\u201d was my assumption back in the innocent days of 2020, just as it was Harlan\u2019s back in 1905, given my experience with childhood vaccines (a good definition of \u201ctraditional,\u201d though I\u2019m unhappy to see the reactionary category of \u201ctraditional\u201d introduced). More:<\/p>\n
Plaintiffs allege that the vaccine does not effectively prevent spread, but only mitigates symptoms for the recipient.<\/p>\n
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><\/p>\n
And Plaintiffs claim that something that only does the latter, but not the former, is like a medical treatment, not a \u201ctraditional\u201d vaccine. This interpretation distinguishes Jacobson, thus presenting a different government interest.<\/p>\n
Boom, as we used to say. In my view, HFDF is once again correct. Hence:<\/p>\n
The district court thus erred in holding that Jacobson extends beyond its public health rationale\u2014government\u2019s power to mandate prophylactic measures aimed at preventing the recipient from spreading disease to others\u2014to also govern \u201cforced medical treatment\u201d for the recipient\u2019s benefit.<\/p>\n
And the kicker:<\/p>\n
At this stage, we must accept Plaintiffs\u2019 allegations that the vaccine does not prevent the spread of COVID-19 as true. And, because of this, Jacobson does not apply.\u2026 It is true that we \u201cneed not [] accept as true allegations that contradict matters properly subject to judicial notice.\u201d But even if the materials offered by LAUSD are subject to judicial notice, they do not support rejecting Plaintiffs\u2019 allegations. LAUSD only provides a CDC publication that says \u201cCOVID-19 vaccines are safe and effective.\u201d But \u201csafe and effective\u201d for what? LAUSD implies that it is for preventing transmission of COVID-19 but does not adduce judicially noticeable facts that prove this.<\/p>\n
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\u2019s proboscis, a problem for #3, but never mind that for now). More:<\/p>\n
We note the preliminary nature of our holding. We do not prejudge whether, on a more developed factual record, Plaintiffs\u2019 allegations will prove true.<\/p>\n
More fireworks to come!<\/p>\n
Implications of the Ninth Circuit\u2019s Approach to Carvalho<\/p>\n
Now let\u2019s have some fun by engaging in pure speculation. This is the consequentialist part!<\/p>\n
(1) If \u201cnon-traditional\u201d 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.<\/p>\n
(2) I see no reason why non-pharmaceutical interventions (masking, quarantine, etc.) would not continue to be a \u201creasonable\u201d exercise of the State\u2019s police power under Jacobson. In fact, given the debacle of \u201cnon-traditional\u201d vaccines, they might make a comeback among policy makers[6].<\/p>\n
(3) The CDC foundation \u2014 the CDC\u2019s private fundraising arm \u2014 has a statutory purpose under Title II of the Preventive Health Amendments of 1992:<\/p>\n
(b) PURPOSE OF FOUNDATION.\u2014The 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.<\/p>\n
Here, \u201cprevent and control\u201d 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?<\/p>\n
(4) In line with the previous point, Federal government funding should prioritize prevention \u2014 i.e., sterilizing (\u201ctraditional\u201d) vaccines, and not treatment, on grounds of cost alone (\u201cprevention is cheaper than cure\u201d).[5]<\/p>\n
(5) And how about CDC\u2019s attempts to solve the problem that vaccines weren\u2019t \u201ctraditional\u201d by simply redefining the term? From (sigh) the Gateway Pundit:<\/p>\n
The Gateway Pundit previously reported that the Centers for Disease Control and Prevention (CDC) had modified the definition of \u201cvaccine\u201d to include the mRNA shots.<\/p>\n
So, look at what the CDC did. Here\u2019s the definition the CDC used on 26 August 2021:<\/p>\n
Vaccine\u2013 \u201ca product that stimulates a person\u2019s immune system to produce immunity to a specific disease.\u201d<\/p>\n
Vaccination\u2013 \u201cthe act of introducing a vaccine into the body to produce immunity to a specific disease.\u201d<\/p>\n
Rather than admit the COVID-19 vaccine is not working as advertised, the CDC took a page out of Orwell\u2019s 1984 and opted for new spin language.<\/p>\n
Here is the new definition:<\/p>\n
Vaccine\u2013 \u201ca preparation that is used to stimulate the body\u2019s immune response against diseases.\u201d<\/p>\n
It can be recalled that Pfizer\u2019s 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.<\/p>\n
(Again, a problem for #3.) I don\u2019t know if CDC can be sued for this, but perhaps people who relied on a demonstrably unreliable agency could be. A novel theory!<\/p>\n
Readers, thoughts? Especially the lawyers among you?<\/p>\n
Conclusion<\/p>\n
Another summary of Jacobson, (#1 and #2) from Louisiana State Law Center:<\/p>\n
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\u2019s claim which it viewed as an attempt to be a free-rider on society.<\/p>\n
This is the language upon which public health depends. I have a ton of headlines and quotes showing conservative triumphalism at Carvalho\u2019s outcome, but as long as these principles are upheld, I\u2019m more than happy to throw Pfizer (and CDC) under the bus, and if the conservatives are doing the throwing, they\u2019re doing the Lord\u2019s work, bless their hearts. Of course, for some that\u2019s not enough. Let me quote the most extreme case I found. From Tennessee Stands:<\/p>\n
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 \u201crefuse unwanted medical treatment,\u201d but apparently only in the case that this treatment does not carry potential implications for others.<\/p>\n
In light of that, this is not really a ruling that bolsters the ideas of medical freedom that so many are working towards.<\/p>\n
That lets the cat out of the bag on \u201cmedical freedom,\u201d doesn\u2019t 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 \u201ctraditional vaccines\u201d from conservative assault, while (2) adumbrating a path to hold Pfizer accountable, and (3) preserving Jacobsen\u2019s moral theory and theory of liberty and society, both essential for preserving public health in principle and as a function of the State\u2019s police power.<\/p>\n
NOTES<\/p>\n
[1] The rule for truncating case names to use the first party in the \u201ccaption\u201d except when that would be ambiguous. Since the Health Freedom Defense Fund is in the business of bringing cases, \u201cCarvalho.\u201d That makes me happy, because when I hear the word \u201cfreedom,\u201d my first instinct is to look for the con.<\/p>\n
[2] After all, in a pandemic, what\u2019s a better operational definition of neighborliness than making sure shared air is safe?<\/p>\n
[3] I said I would moralize!<\/p>\n
[4] I\u2019ve always loved this Peter Arno New Yorker cartoon:<\/p>\n
![\"\"](\"https:\/\/www.nakedcapitalism.com\/wp-content\/uploads\/2024\/06\/drawing-board.png\")
<\/p>\n
[5] It\u2019s 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.<\/p>\n
[6] The religious whackjobs Those overly deferential to \u201cthings unseen\u201d 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.<\/p>\n
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