smallpox vaccine in particular, and vaccines in general, prevent transmission of disease. Clearly, absent that ability, there is no public health rationale. Most worryingly, by the court’s metric, a lying politician or policymaker can mandate virtually any medical intervention on the American people as long as it is under the guise of public health.
{4} In Jacobson, the Court reasoned that “in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand” (197 U.S. at 30). [Emphasis added.] The Ninth Circuit made a massive stretch by equating the dangers of Covid with the dangers of smallpox. No comparison could be further from the truth. Evidence proves that early spread of Covid had already occurred across much of Los Angeles County by the spring of 2020, when research found that 4% of adults had already had the disease and had recovered from it, thereby negating the need for any preventive measures by late 2021, when the school district’s policy was implemented. In addition, it was widely documented at the time that the dangers of Covid were miniscule for all but the elderly and extremely infirm in comparison to the ravages of smallpox. Because there was provably
{5} In Jacobson, Justice Harlan wrote, “According to settled principles, the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Since the Covid injections do not stop transmission or infection, they do
{6} In further justifying the court’s ruling, Judge Bennett wrote, “The SAC [Second Amended Complaint of plaintiffs] concedes that COVID-19 vaccines 'lessen the severity of symptoms for individuals who receive them.' From this, the LAUSD could have reasonably determined that the vaccines would protect the health of its employees.” Here, the Ninth Circuit slyly and dishonestly shifted from public health and safety to the individual health of school district employees. But since when has it ever been a school district’s job to direct the medical treatment of individual employees? Going forward, will LAUSD also mandate that its employees get regular exercise and eight hours of sleep? Will cholesterol-lowering drugs be forced on teachers? Will their consumption of sugar and of alcohol be monitored and regulated? Where does Big Brother stop?
{7} When a plaintiff files a lawsuit, courts are obligated to accept the truth of the plaintiffs’ allegations at the initial stage of proceedings as long as the claims are plausible. In our case, both the three-judge panel and the dissent in the latest ruling acknowledged that we had plausibly pled that Covid injections do not stop infection or transmission. It is our right, according to the rules, to have the opportunity to prove our case in court. However, the Ninth Circuit robbed us of that right. In addition, the Ninth Circuit’s decision has denied the right of any plaintiff to dispute the issues of fact in front of the court. If the Ninth Circuit can abdicate its duties and thereby violate the basic principles of our judicial system, what is the point in attempting to resolve disputes in the courts? Moreover, how can any American have faith in our judicial system?
{8} When a party disagrees with a ruling from a district court, the party may appeal to the circuit court. If a party disagrees with a ruling from the circuit court, the party may petition the circuit court for an en banc review by a broader panel of judges than the small panel. A review of the en banc process in the Ninth Circuit reports, “To qualify for en banc review, the petition must show that the decision of the three-judge panel conflicts with 'a decision of the United States Supreme Court,' 'an authoritative decision of another United States court of appeals,' or 'a decision of the court to which the petition is addressed' and consideration by the full court is 'necessary to secure or maintain uniformity of the court’s decisions,' or 'the proceeding involves one or more questions of exceptional importance.' Rule 40(b)(2)(A)-(D).” None of these conditions were met in our case, yet the rehearing was granted. Was this apparent violation of the rules a politically motivated decision?
{9} The Ninth Circuit did not even acknowledge that in September 2021 the US Centers for Disease Control and Prevention (CDC) had suspiciously timed and conveniently altered its definition of “vaccine” from an injection that prevents disease and produces immunity to the “act of introducing a vaccine into the body to produce protection.” This deceptive move allowed authorities to label Covid injections as “vaccines” instead of categorizing them as “gene therapy.” It should be obvious that the public would be reticent to submit to a new gene therapy whereas it would be more comfortable with a vaccine.
{10} The Ninth Circuit repeatedly noted that Jacobson allows the legislature and executive decision-makers to enforce reasonable laws to protect public health. But there is no mention of school boards in
There are many more issues with the Ninth Circuit’s recent ruling. But for brevity’s sake, I will make only a few more comments.
It is remarkable that no Ninth Circuit judge took the time to write a concurrence—especially in light of the tenor of oral argument before the en banc panel in March 2025.
During oral argument, the questions posed by the majority of the judges suggested they favored the arguments of plaintiffs and we left the court feeling very optimistic, while counsel for the defendants looked downcast. Yet none of those judges championing the principles during the hearing took the time to write a concurrence in support of the majority opinion. I can only wonder why not.
The biggest takeaway from the ruling is this: If the state can mandate a medical product under a real or a fake public health scare, can it mandate any medical intervention it chooses? What are the limits of the state’s power? Can it mandate psych meds to improve public morale? Order the use of Adderall to enhance public productivity? Regulate sugar to improve immunity? Decree forced pregnancy to ensure a stable population? Of course, all of these dictates would be for the greater good!
Judge Bennett wrote, “We reject Plaintiffs’ attempt to limit Jacobson to only those vaccines that prevent the spread of a disease and provide immunity.”
By the court’s logic, there is no limit to the power of the state—a conclusion that should terrify us all. Equally concerning: The Ninth Circuit has abdicated its power and authority to hold public servants accountable. When the courts cannot be relied upon to hold public servants accountable, who can? And where does that leave us?
Judge Lee wrote in the fitting conclusion to his powerful dissent, “As a practical matter, I fear we are giving the government a blank check to foist health treatment mandates on the people—despite its checkered track record—when we should be imposing a check against the government’s incursion into our liberties."