The Ninth Circuit’s Grand Slam

On June 7 the Ninth Circuit handed down a decision in favor of the Health Freedom Defense Fund in its suit against the Los Angeles Unified School District regarding its mandatory COVID vaccine policy. A lower court had ruled in favor of LAUSD, applying Jacobson v. Massachusetts.

The HFDF argued that, contrary to the smallpox vaccine at the end of the 19th century, the COVID vaccine does not prevent transmission of the disease (scientifically indisputable now, except to Democrats who think that Science is Dr. Fauci). The decision in Jacobson v. Massachusetts relied on the prevention of transmission for a public health benefit. That decision was the one erroneously cited by politicians and public health officials to justify the COVID vaccine mandates.

The LAUSD had suspended its mandate 12 days prior to oral arguments before the Ninth Circuit to moot the case. The Ninth Circuit opined that there was no reason to believe that the LAUSD would not reimpose the mandate once the case was mooted, and so proceeded to issue their opinion that the mandate was not legally valid, as it violated the individual right to refuse medical treatment, as the treatment was solely for the benefit (or lack thereof, or harm) to the individual, not to society generally.

The LAUSD whined that the only penalty for not getting vaccinated was job loss. The Court didn't buy that either, as the mandate was a coercive action violating that individual right to refuse medical treatment.

The Ninth Circuit, amazingly, got it exactly right.

(Unfortunately, if past is prologue, the odds are that the Supreme Court will overturn the Ninth Circuit decision!!!)

If this decision stands and is appealed to and upheld by the Supreme Court, it would go a long way toward preventing the tyrannical actions of governments and public health officials that so devastated our society during the COVID pandemic.

Of course, as in all cases, it will not prevent them entirely. Vigilance is the price of freedom, as they say.

Consider that even the vaunted decision in Jacobson v Massachusetts was a despicable overreach of public health authority and was wrongly decided. The case involved a Swedish minister who had emigrated from Sweden in the late 19th century. Massachusetts had a public health law that required the smallpox vaccination for public health reasons. The minister had been vaccinated in Sweden, which by that time had eradicated smallpox in Sweden through universal vaccination of its citizens. Given that the minister had already been vaccinated, there was no need to vaccinate him again. He met the requirements of the law. The State of Massachusetts, even then a tyrannical polity, didn't accept his prior vaccination and demanded under penalty of law that he repeat the vaccine.

The minister had suffered a severe adverse reaction to the original vaccine and had developed a pain syndrome that was debilitating and persisted for about 3 years. The same thing happened to his son with the vaccine. So in fear of his health, the minister refused vaccination. He was jailed and fined ($100). He appealed his case to the Supreme Court. The Supreme Court imbeciles, er, justices, upheld the Massachusetts law and ruled against the minister. There was no medical exception allowed for prior adverse reactions, as there was no exception for prior vaccination. Therein the Massachusetts law was atrocious and tyrannical and placed the minister at risk of his life for no good public health reason whatsoever. He could not contract nor transmit the smallpox virus.

So then, as now, our politicians, judges, and politicians know nothing of and care nothing for anything that might be deemed legitimate Science.

It, of course, is even worse. The dishonorable Justice O. W. Holmes, Jr, who voted to uphold the Massachusetts law, later wrote the majority opinion in Buck v. Bell, upholding the Virginia law permitting forced sterilization of the 'unfit.' In that opinion, he cited Jacobson v Massachusetts as the basis for upholding the Virginia law on eugenic forced sterilization. He "reasoned" that if the state could require vaccination for public health purposes to prevent contagion, the State also had the police power to sterilize the unfit for public health purposes and prevent the contagion of deplorable human births. With the immortal words, "Three generations of imbeciles are enough," he sent Carrie Buck back to the Virginia colony to be sterilized (without her consent and without informing her of the procedure — she was told she was receiving an appendectomy). Holmes even got the terminology (of the day, asinine as it was) wrong, as Carrie Buck was (erroneously and perversely) deemed a moron (she was normal), not an imbecile (imbecile was a worse category than moron).

So Justice Holmes equated human birth with contagion — at least Hamas only applies that definition to Jewish births.

Buck v. Bell remains the federal law of the land, although no state has any law permitting forced sterilization at this point. But there was an undercurrent of an implication that the states and federal government could mandate a vaccine whose effects on fertility were unknown (perhaps in the hope of the public health officials such as Fauci, Collins, and their ilk, that fertility might be impaired and thus save the earth from the ravages of an unchecked human population).

In that sense, this Ninth Circuit decision may have an impact on the Buck v. Bell decision. The argument that the unfit posed a burden and a threat to the public weal was used to justify the decision. Now as illegal immigrants run wild and consume public resources at the instigation of a Democrat administration, and blue cities across the fruited plain welcome them with open arms (less open as the costs mount up), it is harder to argue that the "unfit" citizens should be prevented. So perhaps this Ninth Circuit decision holds wide-ranging promise for our freedoms than just the vaccine question.

Of note is that in the Roe v. Wade opinion, Blackmun cited Buck v. Bell as the only exception to the right to privacy and self-determination regarding reproduction, noting that the federal government still had a right to forcibly sterilize individuals for public health purposes as in Jacobson v Massachusetts and Buck v. Bell. Is our law perverse or is it perverse? No mention was made of this aspect of Roe v. Wade in the Dobbs decision overturning Roe v. Wade.