You might perhaps have guessed from the panel draw how this one was going to come out. The Los Angeles Unified School District has occasionally required (but does not currently require) its employees to be vaccinated against COVID-19, and a group of anti-vaccination plaintiffs sue. There's a big fight about both whether the lawsuit is moot (since the LAUSD no longer has this requirement) as well as on the merits -- whether mandatory vaccination survives rational basis review. The district court held for the LAUSD on the merits and dismissed the lawsuit.
The Ninth Circuit panel drawn to hear the appeal consisted of two Trump appointees (Judges Nelson and Collins) and one Clinton appointee (Judge Hawkins).
The panel reverses and remands, with Judge Hawkins dissenting.
I'll not wade into the fight about whether the case is moot -- the majority thinks it's not, whereas the dissent thinks it is -- but rather want to talk briefly about the merits.
Pretty much every prior federal opinion on the whole COVID-19 vaccine front has gone the same way as the district court did. In no small part because there's a controlling Supreme Court opinion (Jacobson) that says it's permissible for the government to require vaccinations during an epidemic (there, smallpox).
But the Ninth Circuit panel thinks that this case is different because, here, plaintiffs allege that the various COVID-19 vaccines are "not really vaccines" -- that they don't, in fact, deter the spread of COVID, but instead merely alleviate its symptoms. The panel says that, at the pleadings stage (as here), the court must accept these factual representations as true, and hence says that Jacobson is distinguishable, and reverses and remands on that basis.
But my reaction to this move was twofold -- one substantive, and one procedural.
First, the panel's clearly correct that, at the pleading stage, factual allegations are generally taken as true. But only if they're plausible. Conservative judges in particular are often quite keen on this caveat, and on that basis reject a plethora of factual allegations that they hold are not, in fact, accurate.
Is it plausible that the COVID-19 vaccine is not, in fact, a vaccine, and does not in fact stop the spread of COVID?
If that's true, I've got to admit, this is the first I've heard of it. And I conducted a quick Google search to try to find scientific evidence of this purported fact, and couldn't find any. That said, I'm not a scientist, and admit that I'm not completely well-versed in this field, so I'm not willing to reject the proposition out of hand.
So what support does the panel have for its conclusion that this factual assertion is plausible? Here's the entirety of the opinion on this point -- the only two the opinion even mentions plausibility:
"If the parties provide competing but plausible explanations, the plaintiffs’ complaint survives. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). . . . At this stage, we must accept Plaintiffs’ allegations that the vaccine does not prevent the spread of COVID-19 as true. Twombly, 550 U.S. at 556. . . . 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. Thus, Jacobson does not apply, and so we vacate the district court’s order of dismissal and remand."
That's not really an analysis of plausibility now, is it? It merely says that the allegation is plausible, with no support whatsoever.
Now, if the conclusion comported with common understanding -- e.g., that the Earth is not flat -- it may well be permissible to just conclude offhand that a factual allegation is plausible. But I don't think that the factual claim that the COVID vaccine isn't actually a vaccine so qualifies as obviously true. In fact, I'm personally somewhat suspicious of the claim.
And, indeed, below, the LAUSD permissibly introduced evidence (government reports) that showed that the rate of COVID infection and deaths appreciably diminished once people started to receive the COVID vaccine. Something that's fairly common knowledge anyway, I might add. It seems to me a very natural reading of these statistics that vaccination does, in fact, assist in reducing the transmission of COVID. What's the evidence to the contrary? What's the "alternative explanation" of those statistics that makes plaintiffs' claim -- that vaccination is allegedly not effective at all in reducing transmission -- plausible? The panel never says. Which seems to me a pretty big gap.
Is it plausible to me that being vaccinated reduces the severity of COVID and thus reduces death rates? Totally. That appears to be plaintiff's claim -- that the vaccine merely helps the body fight COVID and hence not die. But if the body's effectively fighting the disease, it seems common sense that the rate of "shedding" -- how much virus would be expelled outside the body, in coughs, saliva, etc. -- would also be reduced. Which is not only what I previously understood to be true, but also a fact amply supported by the underlying scientific data.
So what, exactly, makes it plausible for plaintiffs to say that vaccination isn't effective at all in reducing to any degree the transmission of a deadly epidemic disease that has already killed millions of people? This omission seems fairly critical, since (as the panel admits) only plausible factual allegations are to be accepted as true.
To be clear: I might well find it plausible that the COVID vaccine mostly only reduces the severity of the illness. Or at least I don't find such an allegation obviously implausible; again, I'm not a scientist and haven't reviewed all the data. But Jacobson nowhere says that the government can only require a vaccine when it's100% effective (which, even back then, it wasn't): it only says that it's constitutional for the government to require injections in order to reduce transmission in the face of a public health epidemic. I haven't seen anything cited by plaintiffs or the panel that suggests to me that the was either not an epidemic (there was) or that COVID vaccines didn't reduce, in at least a non-trivial way (and likely in a massive way), the rate of transmission of that deadly virus. If so, Jacobson controls.
That's the substantive point.
The procedural point is this. The panel basically says: "Well, Jacobson's different because that involved a vaccine, and plaintiffs here plausibly claim that the vaccination here isn't a vaccine, so we reverse and remand." But the Court of Appeal reviews judgments, not reasoning. The LAUSD argued that its rules survive rational basis review -- a very low-level review, I might add -- because even if what plaintiff says is true, the LAUSD had a rational basis for requiring "vaccination" because it reduced the severity of the illness and hence resulted in (amongst other things) less absenteeism. That's a rational basis for sure. One that, as far as I can tell, plaintiffs never even denied.
What about that? If that's true, the policy survives rational basis review, and the judgment is affirmed, even if the district court's reasoning was erroneous?
Moreover, the fight here is not centrally about whether COVID vaccines are effective or not, a matter about which there's (arguably) some factual dispute. It's rather when the government can permissibly conclude that they might be and, on that basis, require vaccination in order to reduce the millions of deaths resulting from that epidemic. The Supreme Court has said that we generally let the government, not the courts, draw conclusions from even seriously disputed medical studies, particularly during national emergencies like epidemics. Doubly so when, as here, the standard of review is rational basis, "a paradigm of judicial restraint."
If, during an undisputed national epidemic in which millions are being killed, the government, from consultation with its most serious medical experts, concludes that a particular vaccine would in fact reduce transmission rates and save millions of lives, that seems constitutional even if there exist some medical experts (or plaintiffs) who allege otherwise. No? We instead let courts decide what the medical evidence suggests? Not under rational basis review, surely: that I know for certain.
I don't think anyone seriously disputes (outside of some really hardcore tin hat folks) that the LAUSD required vaccination because it thought, with at least some serious basis, that this would at least reduce the transmission of COVID in schools -- both to adults and to kids. Maybe it was wrong, maybe it was right. But that conclusion was at least plausible, and Jacobson seems on point. Particularly if, as here, a contrary conclusion -- that COVID vaccines allegedly don't reduce transmission at all -- doesn't appear consistent with either the undisputed facts (that rates plummeted after widespread vaccination) or the underlying medical evidence (that reduced severity and/or enhanced immune responses decrease virus shedding and hence transmisson).
That's my reaction to today's opinion. We'll see in due course whether the Ninth Circuit takes it en banc. (My guess is that it will.)