Oral Argument in the Ninth Circuit Court of Appeals in Health Freedom Defense Fund et al. v. Alberto Carvalho

Oral argument in the Ninth Circuit Court of Appeals in Health Freedom Defense Fund et al. v. Alberto Carvalho yesterday was nothing short of jaw-dropping.

The plaintiffs, Health Freedom Defense Fund (HFDF), California Educators for Medical Freedom (CAEMF), and several individuals, are appealing the district court’s dismissal of their lawsuit against the Los Angeles Unified School District’s (LAUSD) Covid-19 vaccine mandate.

One of the three judges admitted he was “shocked” and “floored” by LAUSD’s ongoing Covid-19 vaccine mandate for its employees as well as by LAUSD’s “irrational” justification for the policy.

Another judge expressed his concern over the breadth of the district court’s decision and declared that the district court’s rationale was clearly wrong.

When LAUSD’s counsel, Connie Michaels, addressed the panel, the judges peppered her with questions, such as: Does it matter whether the shot stops transmission? If the shots don’t stop transmission, what’s the argument for them? Is there any law anywhere that qualifies Jacobson? [Jacobson is a lawsuit brought to the US Supreme Court in 1905, which will be explained in further detail below.] What is the rational basis for saying that a vaccine mandated three years ago continues to work today? What if LAUSD is still requiring the shot twenty years from now, when there is no emergency? How did the school district come up with the premise that it doesn’t matter whether the shot is effective or not?

Michaels argued rather lamely that the courts have to give the state the right to decide. She further argued that unless it has been established that the injection does not work, LAUSD has the right to mandate it. HFDF notes that that fact has been quite clearly proven not only in the scientific literature, but in the real world.

After hearing the arguments on both sides, HFDF president Leslie Manookian observed, “It seems to us that Connie Michaels and LAUSD got it backwards. HFDF asserts the right to bodily autonomy for any and all medical treatments. Surely, then, the state must prove that a vaccine works if it seeks to justify mandating its use. Otherwise, where is the limit on state power?”

One limit to state power is the judges’ assertion that Jacobson’s whole rationale was that a vaccine must have a public health benefit. Another point they made is that any justification LAUSD may have had for a vaccine mandate would have waned by now.

At issue for the plaintiffs is whether LAUSD violated their fundamental right to privacy under the substantive component of the Due Process Clause of the US Constitution. Further, the plaintiffs assert that the vaccine mandate is arbitrary, since it classifies people based on vaccination status in violation of the Equal Protection Clause of the 14^th Amendment.

The plaintiffs contend that LAUSD acted arbitrarily when it fired hundreds of employees and displaced hundreds more who had requested exemptions to the mandate. Moreover, the terminations took place even though it was already known that the injections prevented neither transmission nor infection. Thus, the plaintiffs contend, the injections amounted to nothing more than a therapeutic, lacking any public health justification, and as such are a private matter.

While LAUSD and others have used the aforementioned US Supreme Court’s (SCOTUS) Jacobson v. Massachusetts case from 1905 to justify vaccine mandates, Jacobson has been wildly misconstrued to justify authoritarian overreach. In it, SCOTUS held that in extreme circumstances, such as a smallpox outbreak with a death rate of 30–40 percent, a jurisdiction might mandate a safe and effective vaccine or allow a fine to be paid by those who declined the vaccine. Jacobson did not say that the state could plunge a needle into the arm of someone who objected to being vaccinated or could condition employment on submitting to a vaccine.

The Ninth Circuit Court judges clearly understood this important fact.

They also appeared to understand that Covid-19 is not smallpox and that the Covid injections are neither safe nor effective.

Moreover, case law since World War II has solidified a number of human rights, including the right to bodily autonomy, the right to refuse unwanted medical treatment, and the right to refuse life-extending and life-saving medical interventions, as well as the notion of a zone of privacy around each American into which the state may not intrude.

Due to the conflict between the recent case law just noted and Jacobson—the latter made in an era when women could not vote and Jim Crow laws existed and SCOTUS had sanctioned the sterilization of a woman deemed too unintelligent to bear children—the rights of Americans today are suspended in limbo.

This conflict must be reconciled. Yet the district court declined to do so. Instead, it wrote, “Without further guidance from the Ninth Circuit, the Court declines to adopt case law applying strict scrutiny in cases of forced medical treatment to the Covid-19 vaccine context.”

This is the very reason we appealed. It is high time for the Ninth Circuit, which has led the way in bodily autonomy jurisprudence, to allow the case to proceed so that the plaintiffs may prove their case—namely, that the Covid injections are nothing more than a therapeutic, that natural immunity is superior, that Jacobson does not apply, and that recent case law regarding bodily autonomy overrides the outdated Jacobson.

In the pleadings, the plaintiffs also argued that the district court erred in failing to accept all the facts that the plaintiffs alleged as true and in failing to draw all reasonable references in their favor, as is required when considering a motion for judgement on the pleadings.

The district court should also have considered whether there was any possibility that the plaintiffs would prevail. That answer is yes, but the court ignored that fact.

The Ninth Circuit has the power to not only right these wrongs but to advance the constitutionally protected cause of freedom by affirming the appeal and sending the case back to district court for a proper adjudication of the facts.

Over the decades, when constitutional amendments have been challenged, the Supreme Court has made clear that no right is held more sacred than that of bodily autonomy. It is time to put Jacobson in its place in history by clarifying and cementing recent case law in service to all Americans.

NOTE, the following additional information was added to the article September 16, 2023, one day after it was initially posted:

A final note, after the Court had adjourned and our attorney and LAUSD’s attorney, Connie Michaels, were walking through the gate from the argument lectern to the gallery, she turned and bitterly spat “What are you going to do when the board rescinds the policy!” 

She knew that the hearing had not gone well for LAUSD and, in the heat of the moment, she tipped her hand. LAUSD will likely try to rescind the mandate so that the school district can then argue the case is moot to avoid depositions, discovery, and a trial. This would be a cynical move laying bare that neither LAUSD nor its attorneys give a darn about their employees, their rights, whether the injections work, or the Constitution, they just want power – to do virtually anything.

Let’s hope LAUSD does not rescind the mandate, and if it does, let’s hope the court does not fall for it.