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…
Although the 9th Circuit judges disagreed about when Jacobson applies, they all assumed that “rational basis” is the appropriate test when it does. Yet Jacobson predates the tiers of judicial review that courts today apply in constitutional cases, and the New Civil Liberties Alliance (NCLA) argues that the 1905 decision actually applied a more demanding standard.
“Jacobson explicitly required the government to demonstrate a ‘substantial relation’ between its articulated goal and the law in question,” the NCLA says in a brief supporting the plaintiffs in the 9th Circuit case. “That is a far more exacting standard than rational basis, which requires only that the government posit some interest and a rational connection between the challenged law and the alleged interest. Put otherwise, a ‘substantial relation’ is a higher bar than a ‘rational connection.'”
The NCLA brief adds that “rational basis does not entail any assessment of the individual’s liberty rights.” Yet in Jacobson, the Supreme Court “took into account the significant liberty interests at stake, explaining that it was balancing Jacobson’s liberty interest in declining the unwanted vaccine against the State’s interest in preventing smallpox from spreading. It was only because ‘the spread of smallpox’ ‘imperiled an entire population’ that the State’s interest in ‘stamp[ing] out the disease of smallpox’ outweighed Rev. Jacobson’s liberty interests.”
Subsequent Supreme Court decisions have made it clear that “Americans possess a constitutionally protected liberty interest in consenting to treatment and refusing unwanted medication,” the NCLA notes. “Government employers cannot simply require (on pain of termination) their employees to take any medication, regardless of consent, medical necessity, or various other circumstances, merely because [the government] asserts that the treatment may be beneficial to the employee.”
The LAUSD argued that Jacobson “permits mandatory vaccination for reasons other than inhibiting transmission to third parties, such as for the benefit of the recipient or ensuring the hospitals are not overwhelmed,” the NCLA notes. But “if ensuring the medical system is not overburdened (and with no showing of an emergency on that front) constituted a valid reason to mandate health measures, the government could mandate alcohol abstention, staying within a certain weight range, and exercising regularly.” That approach, the brief says, “would eviscerate all limits on governmental powers to intrude on medical and bodily autonomy.”
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August 4, 2025
Originally Published in Reason