Does Transmission Still Matter for Mandates? The Ninth Circuit Doesn’t Think So

For more than a century, the government’s claimed power to coerce medical intervention rested on a single premise: protecting others. That was the logic of Jacobson v. Massachusetts (1905), which upheld a $5 fine for refusing a smallpox vaccine. Even then, the Court tethered that extraordinary power to one condition: the vaccine had to prevent the spread of a dangerous disease. The state’s authority ended where the risk to others did.

That limiting principle is now vanishing. In recent years, courts have upheld mandates without asking whether the products actually prevent transmission — or by deferring to contested claims that they do. First came school mandates with shots offering no community benefit. Then came COVID mandates, enforced long after regulators admitted the vaccines did not prevent infection or spread. Challenges were waved away under the lowest constitutional standard — rational-basis review — as judges avoided the very question on which Jacobson turned.

Last year, the Ninth Circuit finally broke that pattern. For a brief, electrifying moment, it restored the guardrail. What happened next — in an August 2025 en banc decision now on a likely path to the Supreme Court — shows just how fragile that principle has become.

A Rare Crack in a Century-Old Wall

The case was Health Freedom Defense Fund v. Carvalho, a challenge to the Los Angeles Unified School District’s (LAUSD) COVID-19 employee vaccine mandate. The plaintiffs’ argument was simple: if the shots do not prevent transmission — as regulators and manufacturers later admitted — then Jacobson’s logic collapses. The state cannot plausibly claim to be protecting others. And once that third-party justification disappears, the controlling precedent is no longer Jacobson but Cruzan v. Missouri Department of Health (1990), a U.S. Supreme Court decision that reaffirmed a fundamental right to refuse medical treatment.

The district court brushed that aside. Whether the shots prevented transmission, the judge said, didn’t matter; under Jacobson, rational-basis deference carried the day. Case dismissed.

Then, in June 2024, something remarkable happened. A three-judge Ninth Circuit panel said the quiet part out loud: if the plaintiffs were correct about transmission, Jacobson might not apply at all (No. 22-55908, June 7, 2024). In that scenario, Cruzan’s bodily-integrity protections could govern. For the first time, a federal appellate court signaled it would confront the question courts had dodged for years: does the state’s justification for coercion vanish without third-party protection?

It was a small crack in a century-old wall. And it didn’t last.

En Banc Retreat: Transmission No Longer Matters

In short order, the Ninth Circuit vacated the panel’s opinion and reheard the case en banc — a move reserved for matters of “exceptional importance” and signaling substantial institutional pressure. The message was unmistakable: the panel’s willingness to revisit Jacobson threatened more than a single school-district policy; it endangered the legal scaffolding that has propped up decades of public health deference.

The full court’s decision, issued in August 2025, was a stunning retreat. It reaffirmed Jacobson as controlling even if the vaccines did not prevent transmission. It refused to engage the panel’s reasoning or the plaintiffs’ central claim. “Public health” became a magic phrase suspending constitutional scrutiny. So long as the state could assert a rational basis, its power to compel remained intact — even when no one else was being protected.

In dissent, Judge Kenneth Lee warned that applying Jacobson after its factual predicate has vanished “untethers state power from any limiting principle.” He’s right. An emergency authority once justified to prevent harm to others has morphed into a boundless license to override bodily autonomy.

The case is not over. The plaintiffs have 90 days from the August ruling to petition the Supreme Court — a deadline that falls in November 2025. Whether the justices take it could determine if the last guardrail on state power over the human body survives, or if Jacobson becomes a permanent blank check.

A Lie at the Foundation

This judicial surrender of scrutiny might be less alarming if public-health authorities had acted in good faith. They did not. Americans were told the COVID vaccines would “stop infection and transmission.” President Biden declared, “You’re not going to get COVID if you have these vaccinations.” That was never true. The FDA’s own Emergency Use Authorizations acknowledged the shots hadn’t been tested for their ability to block transmission. Manufacturers later confirmed as much under oath abroad.

Those false claims built the mandate regime that fired employees, expelled students, and divided society — yet even after it became undeniable the vaccinated could still spread the virus, courts clung to Jacobson.

That is not how constitutional government works. The state bears the burden to justify intrusions on fundamental rights. During COVID, courts flipped that burden, treated agency assertions as gospel, and ignored contrary evidence from plaintiffs. Deference became default — and default became doctrine.

What the Supreme Court Must Do

The Ninth Circuit’s August 2025 ruling in the LAUSD vaccine mandate case is more than a misstep; it’s an engraved invitation to limitless state power. If allowed to stand, it will cement Jacobson as a blanket permission slip for coercion — even when there is no public benefit at all. That cannot be the law of a free society.

The Supreme Court should take the LAUSD case and do what lower courts have refused to do:

• Affirm Cruzan as the controlling precedent — and clarify what follows from it: The Court should make clear that Cruzan — not Jacobson — governs cases involving coerced medical interventions. Cruzan recognized a fundamental liberty interest in refusing medical treatment and requires the state to meet strict scrutiny before interfering. Where a medical intervention protects only the recipient and does not prevent harm to others, that right is absolute.
• Retire Jacobson — and modernize the standard: Decided in 1905, Jacobson predated incorporation of the Bill of Rights, the rise of strict scrutiny, and modern informed-consent doctrine. It assumed — rather than proved — government power over the body, an assumption incompatible with modern constitutional law. Even where a product is proven to prevent transmission, Jacobson’s deferential framework has no place today. The right to bodily autonomy remains fundamental, and any state interference must, at minimum, survive strict scrutiny — with the government proving necessity through evidence, not slogans or lies. Courts must rigorously weigh plaintiffs’ evidence alongside the state’s rather than rubber-stamping agency assertions.
• Require least-restrictive means — and ban irreversible coercion: Even if a public-health measure survives strict scrutiny, it must never include compulsory vaccination or the permanent deprivation of livelihoods for non-compliance. Even Jacobson imposed only a small fine—economic coercion, yes, but not economic ruin. It did not authorize firing workers, barring students, or coercing compliance through loss of livelihood. Voluntary vaccination campaigns, targeted outreach, accommodations, and narrowly tailored, time-limited quarantines are the proper tools, backed by meaningful exemptions and firm sunset clauses. No “emergency” ever justifies forcing an irreversible medical intervention.

There are better ways to confront infectious disease than by compelling or coercing unwanted medical procedures. But if the Court stays silent, governments will continue to claim unchecked authority to invade the body — not only in pandemics, but anywhere a “collective benefit” can be asserted. Once the state can compel you to pierce your skin for your “own good,” the question is no longer what it can force — but whether anything remains beyond its reach.