Ninth Circuit Supports Jacobson Public Health Doctrine, But Accepts “Non-Traditional” Covid Vaccines May In Fact Be Treatments (and Hence Should Not Have Been Mandated)

By Lambert Strether of Corrente.

The instant case for this post is the Ninth Circuit’s “Health Freedom Defense Fund, Inc. v. Alberto Carvalho” (PDF), Alberto M. Carvalho being the Superintendent of the Los Angeles Unified School District (LAUSD), hereafter “Carvalho,” Health Freedom Defense Fund being “HFDF”[1]. I’m 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’s important to the free society we aspire to be, but I discovered late in studying up for this post that there’s 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’t even attempt to play the lawyer on TV, or, these days, I suppose TikTok. In any case, “moralizing and consequentialist” plays well in the court of public opinion!

Here is a summary of Carvalho from LexisNexis:

A split Ninth Circuit panel on Friday reversed a California federal court’s dismissal of a proposed class action challenging a recently rescinded Los Angeles Unified School District policy requiring employees to get the COVID-19 vaccine to keep their jobs, ruling that the district still has the potential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.

To make up a word, the Nine Circuit “unmooted” a district court’s decision. From Bloomberg Law:

Los Angeles United School District officials must face a lawsuit from workers alleging the district vaccine mandate violated employees’ constitutional due process rights, a divided Ninth Circuit said Friday.

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: “supports” vs. “affirm” or “uphold”; “accepts… may in fact be” vs. “decides that…”). So why the excitement? And there is excitement, as we shall see.

The precedent from which the Ninth Circuit’s decision derives is Jacobson v. Massachusetts (1905) (“Jacobson”), a case that “upheld the authority of states to enforce compulsory vaccination laws.” 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.

In this post I will, at some length, excerpt Justice Harlan’s 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.

What Jacobson Says

Politico comments on Jacobson:

[Henning] Jacobson’s [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: ‘But you do have your freedoms you have to keep. You have to maintain that.’

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 — 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’s court would need to reckon with a different medical landscape, as well as the freighted politics of the moment.

(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’m sure that snakepit, the Federalist Society there are those who would like to reinstate it.)

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.

(1) Jacobson’s moral foundation.

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.

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: “… Thou shalt love thy neighbour as thyself.” After all, a “single individual might take the view that “Thou shalt infect thy neighhbour as thyself”; a “community” never (unless it were to be possessed by a death cult).[2]

(2) Jacobson’s theory of liberty and society. Rephrasing the above principle in Constitutional terms:

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.

(3) Jacobson’s theory of expertise.

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.

Credentials, then, are not enough (and it seems that the administrative state did not exist in Harlan’s time as we know it today). I don’t have a better theory than Harlan’s, but I can see at least two problems with it: (A) What about Semmelweis? and (B) what happens when “common beliefs” have been engineered to the detriment of the common welfare? (I don’t 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 “the Green Map”, and indeed with the abandonment of “real liberty” as defined in item (2)).

(4) Jacobson on vaccine mandates. Let’s see how items #1-#3 play out. It’s clear that Jacobson sees the justification for smallpox vaccination as preventing the transmission of the disease. Excerpts aggregated, not in order:

[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.

And:

[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.

More:

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.

More:

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: ‘Smallpox 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.

And finally:

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.

It’s clear, then, that Jacobson took the view that in an epidemic of smallpox — and, presumably, a pandemic of SARS-CoV-2 — 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 “unreasonable,” not meeting “the necessities of the case,” but that is a leap that Carvalho at least enables, even if (being only a demooting of a lower court’s decision) it does not take it. Now let us turn to Carvalho.

How Carvalho Builds on Jacobson

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:

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.

The Ninth Circuit held that the case was not moot, applying the voluntary cessation exception to mootness. The court found that LAUSD’s pattern of withdrawing and then reinstating its vaccination policies, particularly in response to litigation risk, was enough to keep the case alive.

There’s 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’ll excerpt (and annotate) a good deal of it, omitting citations:

We now turn to the merits [sigh of relief –lambert]. The district court held, applying rational basis review under Jacobson, that the Policy [LAUSD’s vaccine mandate] satisfied a legitimate government purpose. But the district court’s analysis diverges from Jacobson. We thus vacate the district court’s opinion and remand.[4]

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’ allegations. In Jacobson, the Supreme Court balanced[#2] an individual’s liberty interest in declining an unwanted smallpox vaccine against the State’s interest in preventing disease[#4]. The Court explained that the “principle of vaccination” is “to prevent the spread of smallpox.”

As we show exhaustively above. More:

Id. at 31–32. Because of this, the Court concluded that the State’s interest superseded Jacobson’s liberty interest, and the vaccine requirement was constitutional. Id.

I’m not happy about this (dead) “balancing” metaphor; Justice Harlan doesn’t use it. I don’t think Jacobson “balances” 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 “real liberty.” This does not, however, affect the merits. More:

Plaintiffs argue that a “traditional vaccine” must provide immunity and prevent transmission, meaning that it must “prevent the spread” of COVID-19.

Since I hate “Freedom,” it’s painful for me to admit that HFDF has the right of it, but they do. Certainly “provide immunity and prevent transmission” was my assumption back in the innocent days of 2020, just as it was Harlan’s back in 1905, given my experience with childhood vaccines (a good definition of “traditional,” though I’m unhappy to see the reactionary category of “traditional” introduced). More:

Plaintiffs allege that the vaccine does not effectively prevent spread, but only mitigates symptoms for the recipient.

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>

And Plaintiffs claim that something that only does the latter, but not the former, is like a medical treatment, not a “traditional” vaccine. This interpretation distinguishes Jacobson, thus presenting a different government interest.

Boom, as we used to say. In my view, HFDF is once again correct. Hence:

The district court thus erred in holding that Jacobson extends beyond its public health rationale—government’s power to mandate prophylactic measures aimed at preventing the recipient from spreading disease to others—to also govern “forced medical treatment” for the recipient’s benefit.

And the kicker:

At this stage, we must accept Plaintiffs’ allegations that the vaccine does not prevent the spread of COVID-19 as true. And, because of this, Jacobson does not apply.… It is true that we “need not [] accept as true allegations that contradict matters properly subject to judicial notice.” But even if the materials offered by LAUSD are subject to judicial notice, they do not support rejecting Plaintiffs’ allegations. LAUSD only provides a CDC publication that says “COVID-19 vaccines are safe and effective.” But “safe and effective” for what? LAUSD implies that it is for preventing transmission of COVID-19 but does not adduce judicially noticeable facts that prove this.

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’s proboscis, a problem for #3, but never mind that for now). More:

We note the preliminary nature of our holding. We do not prejudge whether, on a more developed factual record, Plaintiffs’ allegations will prove true.

More fireworks to come!

Implications of the Ninth Circuit’s Approach to Carvalho

Now let’s have some fun by engaging in pure speculation. This is the consequentialist part!

(1) If “non-traditional” 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.

(2) I see no reason why non-pharmaceutical interventions (masking, quarantine, etc.) would not continue to be a “reasonable” exercise of the State’s police power under Jacobson. In fact, given the debacle of “non-traditional” vaccines, they might make a comeback among policy makers[6].

(3) The CDC foundation — the CDC’s private fundraising arm — has a statutory purpose under Title II of the Preventive Health Amendments of 1992:

(b) PURPOSE OF FOUNDATION.—The 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.

Here, “prevent and control” 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?

(4) In line with the previous point, Federal government funding should prioritize prevention — i.e., sterilizing (“traditional”) vaccines, and not treatment, on grounds of cost alone (“prevention is cheaper than cure”).[5]

(5) And how about CDC’s attempts to solve the problem that vaccines weren’t “traditional” by simply redefining the term? From (sigh) the Gateway Pundit:

The Gateway Pundit previously reported that the Centers for Disease Control and Prevention (CDC) had modified the definition of “vaccine” to include the mRNA shots.

So, look at what the CDC did. Here’s the definition the CDC used on 26 August 2021:

Vaccine– “a product that stimulates a person’s immune system to produce immunity to a specific disease.”

Vaccination– “the act of introducing a vaccine into the body to produce immunity to a specific disease.”

Rather than admit the COVID-19 vaccine is not working as advertised, the CDC took a page out of Orwell’s 1984 and opted for new spin language.

Here is the new definition:

Vaccine– “a preparation that is used to stimulate the body’s immune response against diseases.”

It can be recalled that Pfizer’s 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.

(Again, a problem for #3.) I don’t know if CDC can be sued for this, but perhaps people who relied on a demonstrably unreliable agency could be. A novel theory!

Readers, thoughts? Especially the lawyers among you?

Conclusion

Another summary of Jacobson, (#1 and #2) from Louisiana State Law Center:

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’s claim which it viewed as an attempt to be a free-rider on society.

This is the language upon which public health depends. I have a ton of headlines and quotes showing conservative triumphalism at Carvalho’s outcome, but as long as these principles are upheld, I’m more than happy to throw Pfizer (and CDC) under the bus, and if the conservatives are doing the throwing, they’re doing the Lord’s work, bless their hearts. Of course, for some that’s not enough. Let me quote the most extreme case I found. From Tennessee Stands:

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 “refuse unwanted medical treatment,” but apparently only in the case that this treatment does not carry potential implications for others.

In light of that, this is not really a ruling that bolsters the ideas of medical freedom that so many are working towards.

That lets the cat out of the bag on “medical freedom,” doesn’t 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 “traditional vaccines” from conservative assault, while (2) adumbrating a path to hold Pfizer accountable, and (3) preserving Jacobsen’s moral theory and theory of liberty and society, both essential for preserving public health in principle and as a function of the State’s police power.

NOTES

[1] The rule for truncating case names to use the first party in the “caption” except when that would be ambiguous. Since the Health Freedom Defense Fund is in the business of bringing cases, “Carvalho.” That makes me happy, because when I hear the word “freedom,” my first instinct is to look for the con.

[2] After all, in a pandemic, what’s a better operational definition of neighborliness than making sure shared air is safe?

[3] I said I would moralize!

[4] I’ve always loved this Peter Arno New Yorker cartoon:

[5] It’s 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.

[6] The religious whackjobs Those overly deferential to “things unseen” 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.

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.

27 comments

  1. flora

    Thanks for this post. Pretty important development, imo. Also, love the cartoon. Very apropos. (Although I do have a quibble about your footnote #6. / ;)

    Reply
      1. flora

        Well, hard to explain without going on too long. I’ll be brief in hopes that those who know what I’m writing about will understand. I’m a member of a small Methodist Church congregation. Methodism was a revolt against the Church of England, for gosh sake. Against the ‘King’s Church’.We’re hardly “whack jobs” of deference to the authority of “the Pharisees.” (Or even to the authority of our own Bishops on occasion.) Your real argument if I understand it, if I may, is with the US gov’s handling of the whole thing, and handling it badly. Had churches been told it was airborn transmission, that would have been one thing. They were not. It didn’t help when the B admin came out and demonized members of Christian churches as possibly dangerous extremists. What was he trying to do? Demonize church bake sales? I mean… sheesh.

        Reply
        1. lambert strether

          I have in mind Leonard Leo and his ilk and the sort of “missed you at Bible study” nimrods who peopled Bush the Younger’s two administrations. They’re not about practicing religion freely, but imposing their religion on others; indeed, capturing the state on its behalf. Also, of course, the crooks and predators regularly featured in the Roys Report. And of course Clinton and IIRC The Family.

          Not small Methodist congregations.

          Reply
              1. flora

                Many left leaning pastors and priests came out against the Vietnam war: MLK, Father Daniel Berrigan, The Rev. William Wendt, Quakers, etc. Why did the Dem party abandon the people of Christian faith who were on their side, were Dem voters, leaving a vacuum for the religious right to fill?

                Reply
                1. lambert strether

                  Hardly the point, as you surely must know.

                  When I have time to post on Gorsuch’s whackjob desire to nuke Jacobson and spread infection through church congregations, I will surely do so.

                  In the meantime, I am afraid you will have to be contented with the laudatory mention of Matt 22:39 at “Jacobson’s Moral Foundation.” Frankly, I’m a little surprised that’s not your focus.

                  Reply
            1. lambert strether

              The brush is broad because the problem is big.

              Gorsuch’s whackjob view on religion potentially affect Jacobson’s precedential value, but are out of scope for this post.

              Reply
              1. JBird4049

                I really do not see the people in the Federalist Society as “conservative” in any real way. If you are not not willing to take into consideration the consequences of your actions on the lives of others, why should anyone do so for you? Taxes, conscription, traffic laws are part of being in a society. It seems to me that American libertarianism is essentially “I don’t wanna and you can’t make me.” Then again, some of modern American “liberalism” is also this. “There is no such thing as society.” What bs.

                Reply
    1. Matthew G. Saroff

      The court did not rule on whether or not the Covid vaccines are vaccines, it ruled that this argument can be made in court.

      The standard here is to assume that the plaintiff can prove all their arguments and win the case, then the litigation can proceed.

      It could end up a big deal, but it is not a big deal by itself.

      Reply
  2. Carolinian

    NC readers have known for some time that the SARS-CoV-2 vaccines do not prevent transmission

    Haven’t NC readers known that even before the vaccine was released to the public? It really seems like the crux of the matter, particularly when it has even been deemed an “experimental” vaccine.

    Reply
    1. .Tom

      We knew from the EUA review for the Pfizer jab that it had not been designed to prevent transmission and that its effectiveness on transmission was not tested. I remember reading about a q&a in the meeting about exactly that.

      Reply
  3. Mikel

    “If instead the interventions had been aerosol-driven, they would have been based on physical spaces and patterns of air circulation within them….”

    And it’s already been shown they are starting up with denialism that H5N1 is airborne.
    Even without a pandemic or threat of one, people could have better health year round with better ventilation within indoor spaces.

    Reply
  4. Vicky Cookies

    Lambert, why do you love law? Outside of the exciting opportunities for spelunking, of course. Frued, in his initial response to Einstien’s letter sparking the correspondence which became “Why War“, says that law is the product of the evolution from might to right, the might being that of the community at large. In our age, and with the Byzantine nature of law here, even divorcing myself from Marxism for the time being, it would seem obvious that law is the expression of the might of only a certain community within the country, being that of lawyers, judges, and those with access to same.

    Thank you sincerely for your work, by the way, though I fail immediately to see the import of this case, as we’d known the vaccines didn’t really work.

    Reply
    1. Dwight

      We knew that, and CDC knew that, but CDC pretended not to know so that they could force mandates by falsely invoking the Jacobson principle so aptly described by Lambart.

      Universities, full of scientists, lawyers, and political philosophers, should be especially ashamed of themselves for not pushing back and instead forcing their young students to get the shots and boosters.

      (I know that CDC didn’t technically force mandates, but they and every doctor on both the CDC and FDA advisory committees knew that mandates would result from their approvals. The CDC in particular had a duty IMO to say that the shots should not be mandated.)

      Reply
    1. flora

      And the full quote:

      Love all, trust a few,
      Do wrong to none: be able for thine enemy
      Rather in power than use; and keep thy friend
      Under thy own life’s key: be check’d for silence,
      But never tax’d for speech.

      Reply
  5. Late Introvert

    Thanks Lambert, I too have a dog in this hunt, if just for all of the abuse I got from family and friends during 2020-21, who should have known better then and still haven’t fessed up.

    And my job required a vaccine and then abandoned all NPI’s once The Biden Administration declared Covid Was Over. Can you imagine the aghastitude if Trump’s 2nd Admin had done the same?

    I have long admired your question where are the lawyers? And now it’s good to see they are barking. Even if the wrong side is winning, it’s still the right argument.

    Reply
  6. zagonostra

    Much to digest/read. From the perspective of someone who works remotely and was told by my employer that I had to get vaccinated to continue working I take great interest in the subject. I refused to be vaccinated by filling out “religious exemption” paperwork where I took the opportunity to blast said employer. They asked for supporting documentation that would support my objection on religious grounds, I refused to provide it and they backed down.

    The whole “project” stunk to high hell right from the beginning and I said so here on NC. When politicians try and cajole you with free beer, weed, ice cream, lotteries, etc…and having failed that move to punitive measures I knew something was amiss. But, I need to read the post more carefully, for I too “love the law” and also hate it.

    Reply
  7. Jeff W

    (1) The Court doesn’t accept that “‘non-traditional’ COVID vaccines may in fact be treatments (and hence should not have been mandated)” (as in the headline) in terms of the characterization—it makes no statement about that (and doesn’t need to). It says it accepts the plaintiffs’ allegations regarding the COVID vaccine as not preventing the spread of disease as true.

    Essentially, the Court says that, whatever the COVID vaccine is (and, again, the Court doesn’t say, other than refer to it simply as a “vaccine”), the holding in Jacobson is inapplicable to it because Jacobson holds only in cases where a vaccine prevents the spread of the disease.

    (2) I love that New Yorker cartoon, too!

    Reply
  8. Jesper

    On a somewhat related note an analysis of the legalities of compulsory COVID vaccination in EU (from 2022):
    https://www.europarl.europa.eu/thinktank/en/document/EPRS_BRI(2022)729309
    As far as I can tell EU institutions let countries chose whether or not to make it mandatory.

    That website has a link to a pdf containing a legal analysis done.

    To determine whether national provisions imposing
    compulsory vaccination may be considered contrary to the EUCharter, it is necessaryto analyse how
    the Council of Europe’s bodies have interpreted similar provisions in the pertinent Council of Europe
    human rights treaties. Council of Europe standards are relevant to interpret the EU Charter
    provisions, as derived not only from Articles 52(3), 52(7) and 53 EU Charter, but also from the
    explanationsrelating to the Charter.

    The pdf points out a lot of issues and some of those issues appear to have been argued by people who opposed mandatory vaccination.

    However, from October 2022: https://strasbourgobservers.com/2022/10/18/challenging-state-responses-to-the-covid-19-pandemic-before-the-ecthr/

    the second group of cases concerns challenges to rules relating to vaccinations, the wearing of masks, and testing. The court has so far found all of these cases to be inadmissible.

    I had a look at Sweden (334 pages in Swedish):
    https://www.regeringen.se/contentassets/045e47bb40f543bab98f079241b16b6d/sou-2023_73_pdf-a_webb.pdf

    Difficult to summarise it but I can try: Vaccines can’t be mandated but employers can demand vaccination or the employee can lose his/her job or be transferred to a position where contacts with people are minimised.
    Might be possible to argue that a mandate was outsourced and in practice very few could say no without consequences.
    As far as I can tell that is the argument used now: Nobody was forced to take the vaccine but if they didn’t take the vaccines they could legally be discriminated against. Vaccinate or lose human and/or citizen rights, the choice was/is yours…

    As the definition of vaccine has changed then it might be needed to update laws to reflect those changes since some things that are regulated by law for vaccines seem to be based on an old and no longer valid definition. The law and/or definition might need clarifying.

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  9. Chris in OK

    The impact of this case will certainly be far-reaching. It specifically calls out that non-sterilizing vaccines cannot be mandated because there is no public good. That was the seminal argument in Jacobsen as the smallpox vaccine was sterilizing.

    It is worth noting that nearly all of what we consider “traditional” vaccines today are also non-sterilizing. Polio, Tetanus, Pertussis, Flu shots, Hep-B, RSV, Rotavirus, Varicella, Meningococcal – none of these are sterilizing and therefore cannot be mandated via Jacobson because they do not prevent the spread of the disease.

    My company started banging the mandate drum as we sell products to the Federal Government. The assumption was that the company would be covered by the Federal Contractors mandate that Biden created. Thankfully, our lawyers sharpened their pencils and only required vaccination for employees of the division that dealt directly with FedGov so I was unaffected.

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