Advocates and a coalition of Republican-led states argue courts have misused a century-old precedent to justify sweeping COVID vaccine mandates, reviving dangerous limits on bodily autonomy.
By yourNEWS Media Newsroom
A growing coalition of red states and civil liberties advocates is urging the U.S. Supreme Court to revisit a 1905 precedent frequently cited to uphold COVID-19 vaccine mandates, arguing that courts have stretched the ruling far beyond its original facts and in ways that echo some of the Court’s most discredited decisions.
Whenever COVID-19 vaccine mandates were challenged in court, governments routinely relied on Jacobson v. Massachusetts, a case in which the Supreme Court upheld a $5 fine imposed on a man who refused a smallpox vaccination under a local ordinance. At the time, the smallpox vaccine was believed to be highly effective at preventing infection and transmission, with modern estimates placing its effectiveness at about 95%.
Now, an advocacy organization that opposes what it calls “unwanted medical treatments” is asking the justices to reconsider Jacobson and how lower courts have interpreted it, arguing that judges have extrapolated the ruling far beyond its narrow context. As Just the News reported, the effort has drawn support from multiple Republican-led states and a public-interest law firm that focuses on limiting administrative overreach.
Last week, the Supreme Court considered whether to take up a petition filed by the Health Freedom Defense Fund seeking review of a decision by the full 9th U.S. Circuit Court of Appeals. That ruling overturned a three-judge panel and held that it was irrelevant whether COVID-19 vaccines stop infection or transmission when evaluating the Los Angeles Unified School District’s former employee vaccine mandate. The justices did not act on the petition at that time, and the case has drawn little public attention.
Los Angeles Unified operated one of the strictest COVID mitigation regimes in the country. In fall 2021, it required students and staff returning to in-person learning to undergo weekly SARS-CoV-2 testing regardless of vaccination status. A parent later accused the district of vaccinating her son without consent after he was offered free pizza.
This is not the first time the Supreme Court has been asked to reassess Jacobson in the COVID era. While he was still a presidential candidate, future Health and Human Services Secretary Robert F. Kennedy Jr. supported an effort by Children’s Health Defense to challenge Rutgers University’s vaccine mandate.
The 9th Circuit said it was following other appellate courts by applying the lowest level of judicial scrutiny to COVID vaccine mandates, a move a libertarian law firm derided as “judicial abdication in the face of government misconduct”. Judges frequently defaulted to Jacobson even when plaintiffs could show natural immunity from prior infection, except in some cases involving religious objections, such as a college athlete challenge.
In one case, a federal judge later ordered San Francisco to rehire a Muslim city worker fired over vaccine refusal after initially mocking the worker for arguing that the shot did not stop transmission, which the judge said contradicted the “scientific consensus.”
Health Freedom Defense Fund is asking the Court to replace the “rational basis” review retroactively attached to Jacobson—even though formal tiers of scrutiny were not recognized until decades later—with the balancing test articulated in the 1990 decision Cruzan v. Director, Missouri Department of Health. That case described Jacobson as weighing individual medical liberty against the state’s interest in preventing disease.
The petition argues this may require overruling Jacobson outright or limiting it strictly to its facts—pre-COVID vaccines designed to stop transmission—contending the precedent became a “straitjacket” during the pandemic, borrowing language from the Court’s explanation in Dobbs for discarding abortion-rights precedent. The group said governments should know whether the definition of a “vaccine” still matters, rather than relying on speculation about what lawmakers “could have thought,” citing a law review critique of rational-basis review.
A coalition of states led by Texas echoed those concerns in an amicus brief joined by Alabama, Alaska, Arkansas, Idaho, Iowa, Kansas, Louisiana, Montana, Nebraska, South Carolina and Utah. The states argued that the right to refuse medical treatment and the principle of bodily autonomy have deep historical roots, including Supreme Court rulings against compelled surgery and forced stomach pumping under the Fourth Amendment.
They said due process precedents require informed consent and, by extension, the right to refuse treatment. In Cruzan, the Court affirmed that a competent person has the right to refuse unwanted medical care, even as it allowed states to impose evidentiary standards in end-of-life cases.
The states argued Jacobson rests on a narrow exception tied to preventing the spread of communicable disease and cannot justify compulsory treatment for an individual’s own benefit. They warned that the 9th Circuit’s reasoning would allow forced medical treatment based solely on paternalism.
Another brief from the New Civil Liberties Alliance criticized the 9th Circuit’s retroactive application of rational-basis review and its disregard of later Supreme Court decisions. The group said Jacobson is incompatible with modern jurisprudence unless confined to mandates necessary to protect third parties.
The alliance also warned that one of the Court’s most infamous rulings relied entirely on Jacobson: the 1927 decision in Buck v. Bell, which upheld Virginia’s compulsory sterilization of the “feeble-minded” at the height of judicial approval for eugenics. Writing for the Court, Justice Oliver Wendell Holmes declared, “Three generations of imbeciles are enough.”
“Tolerating too broad a reading of Jacobson risks heinous future applications,” the alliance warned, urging the justices to clarify or limit the precedent before it is used again to justify sweeping intrusions on bodily autonomy.
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