9th Circuit Vaccine Mandate Ruling Mired By Dis-ingenious Framing From Vaccine Skeptics.
A little over a week ago there was a small revival in the debate surrounding COVID-19 vaccine mandates, coming in the form of a 9th circuit appellate court ruling.
The ruling brought forth comments from many of the usual popular vaccine skeptics, with RFK Jr’s diatribe on twitter about how the court ruled COVID vaccine mandates were unconstitutional due to them not stopping transmission serving as the most prominent instance I came across on social media.
When I initially saw these claims, I skimmed the ruling, realized it didn’t really make any judgement on the underlying facts relating to whether the vaccine stopped transmission, and moved on. However, since then a couple things remained stuck in my mind prompting me to write this piece.
- I don’t think people realize just how disingenuously this ruling truly was framed by vaccine skeptics, while there is some legal terminology present in the ruling that I wouldn’t necessarily expect the average person to know, pretty much all the important parts are clearly spelled out, and for individuals like RFK Jr. who are lawyers nothing in the ruling should have been confusing at all.
- I think the ruling serves as good vehicle to go over some of the ways our courts function, discuss the steps taken in deciding the adjudication of any given dispute, and give people a bit of a framework for understanding some of the terms used to hopefully empower them to be more scrutinous about other people’s characterizations of rulings like this in the future.
So here I am, writing this piece at 2am in my bedroom sitting next to my dog because I couldn’t get myself to go to sleep like a normal person.
THE ANTI-VAX FRAMING
The big claim made about this ruling was that it affirmed the idea that the mRNA vaccines were in fact not vaccines at all and that they did not stop transmission.
These claims got strong traction on social media but stood in stark contrast to an actual plain reading of the court ruling’s text.
The actual focus of the ruling was situated on 2 primary points. First, whether voluntary cessation exception to mootness applied to this situation, as the Los Angeles United School District (LAUSD) had withdrawn their mandatory vaccine policy 12 days after oral argumentation. Second, whether the lower district court’s decision to dismiss the plaintiff’s (Health Freedom Defence Fund, INC) action on the grounds of the policy surviving rational basis review was in fact justified.
Ultimately, they decided to vacate the lower court’s dismissal and remand it back down to be reconsidered by said district court in light of the appellate court’s decisions. None of this is that out of the ordinary, but its worth going over in detail what exactly the two points I mentioned above entail.
POINTS IN DISPUTE
Mootness doctrine refers to a limitation on the judicial review power granted to federal courts, establishing that the courts may only get involved in ongoing disputes:
“A case is moot when the issues presented are no longer ‘live’ or the parties lack a cognizable interest in the outcome.” “[A]n actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” Thus, “[i]f an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit[]’ at any point during litigation, the action can no longer proceed and must be dismissed as moot.”
LAUSD, in accordance with rescinding their vaccination policy, invoked this doctrine to the appellate court. However, there are several exceptions to the doctrine, with voluntary cessation exception to mootness being the one called upon here.
This exception establishes that a litigant cannot automatically moot a case by voluntarily ceasing an unlawful practice once sued, instead they also hold the burden of showing that there is no reasonable possibility that they will revert to imposing a similar policy alongside establishing that any effects of the alleged violation have been permanently reversed.
The opinion justifies their application of voluntary cessation exception to mootness upon LAUSD’s pattern of rescinding vaccination policies after facing litigation risk which occurred twice, once in a previous suit and once here, and on the expression of willingness to reinstate the policy in the future based upon statements made by LAUSD officials and board members.
Pretty reasonable grounds from my reading, though one of the judges on the appellate panel — Judge Hawkins — notably disagreed.
It is their decision surrounding the lower court’s application of rational basis review, however, in which the meat of the conversation lies. The rational basis test is the least stringent of the 3 judicial review tests, the other 2 being intermediate and strict scrutiny. It is generally used in cases where no fundamental rights nor suspect classifications are at issue and requires that a statute or ordinance has a legitimate state interest in which there is an established rational connection between the means and goals.
In this case the district court held that LAUSD’s policy did not implicate any fundamental right — a point which is more specifically challenged in the concurrent opinion written by Judge Collins of the appellate panel — and that it passed rational basis review in response to the defense’s motion to dismiss.
They largely relied on the 1905 Jacobson V. Massachusetts case, claiming that even if the plaintiff’s argument that the COVID-19 vaccine is a “medical treatment” and not a “traditional” vaccine was true, it wouldn’t hold as “Jacobson does not require that a vaccine have the specific purpose of preventing disease.”
It was here that the appellate court’s opinion diverged from the district court, and in turn where figures like RFK Jr. primarily pulled from to frame the decision as part of their own anti-vaxx narratives.
ASSUMPTION OF TRUTH
The appellate court found that the lower court’s ruling was a mis-application of Jacobson, holding that mandatory vaccinations were rationally related to preventing smallpox from spreading in that case.
As a result, if we take the plaintiff’s claim that the COVID vaccines do not prevent transmission as true on its face, it is clear that the two cases distinguish themselves from one another in a meaningful way. “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.”
From there its understandable why the appellate court would come to the conclusion that the grounds by which the district court dismissed the plaintiff’s case were unsatisfactory, in turn vacating and remanding the case back down to the district level.
However, this raises the question, why ought we take the plaintiff’s claim as being true and does this constitute the court making a factual judgement with regards to whether the COVID vaccines prevent transmission and function as “Traditional” vaccines?
Well no, it doesn’t constitute that whatsoever, in reality this is just the result of the stage of litigation considered for the appeal decision. Early into litigation it is the norm for the plaintiff’s claims to be taken as true, assuming said claims meet a minimal plausibility standard for pleading. This is for the purpose of deciding whether the case should be allowed to proceed to the actual fact-finding stage.
The appellate opinion actually clarifies this several times in its text:
- “Judgments on the pleadings are reviewed de novo.” We review under the same standards as a motion to dismiss. So we must accept the plaintiffs’ alleged facts as true, whether “actual proof” of them is “improbable.” If the parties provide competing but plausible explanations, the plaintiffs’ complaint survives. Thus, we can affirm for the moving party only if there are no material and unresolved facts, and the plaintiffs’ claims fail as a matter of law.”
- “We note the preliminary nature of our holding. We do not prejudge whether, on a more developed factual record, Plaintiffs’ allegations will prove true. But “[w]hether an action ‘can be dismissed on the pleadings depends on what the pleadings say.’” Because we thus must accept them as true, Plaintiffs have plausibly alleged that the COVID-19 vaccine does not effectively “prevent the spread” of COVID-19.”
It’s unfortunate that despite this people have taken it upon themselves to completely misrepresent what was established by the appellate ruling in order to sell a sensational narrative to their bases.
In reality, public discussion surrounding this ruling has been something of a tragedy. It’s largely reasonable and well argued — focusing on some interesting points of nuance in our legal system — but instead of any conversation focused on the actual points it discusses, nearly the entirety of the dialogue space ends up being captured by fantastical claims.
We deserve a better discourse, and that begins by calling out hucksters like RFK Jr. and his ilk who make blatantly false claims in sharp discordance with the factual record. Claims that strain credulity in believing them to be mere miserable mistakes as opposed to calculated acts of bad faith.
To sum things up in his own words, “I dunno, maybe it’s the brain worm”.
