Whenever COVID-19 vaccine mandates were legally challenged, public entities were likely to invoke a 1905 Supreme Court precedent upholding a $5 fine on a Massachusetts man for violating a local smallpox vaccination ordinance. Invented a century earlier, the vaccine allegedly has a 95% effective rate against infection.

An advocacy group that fights "unwanted medical treatments" is asking the high court to take a fresh look at the case, Jacobson v. Massachusetts, and how courts have interpreted it – extrapolating the holding far beyond the facts of the case – and getting an assist from several red states and a public interest law firm that seeks to rein in the administrative state.

Last week, the justices considered whether to accept Health Freedom Defense Fund's petition to review a ruling by the full 9th U.S. Circuit Court of Appeals, overturning a three-judge panel that said it's irrelevant whether COVID vaccines stop infection or transmission for the purposes of Los Angeles Unified School District's onetime employee mandate. 

They didn't make a decision at that time, and the petition has received little attention.

The school district was one of the strictest in the country on COVID mitigation, even requiring students and employees returning to in-person learning in fall 2021 to get tested weekly for SARS-CoV-2 regardless of COVID vaccination. A mother also accused the district of inoculating her son without her consent by offering him free pizza.

It's not the first SCOTUS petition to ask for a review of Jacobson in light of COVID vaccine mandates. While he was still a presidential candidate, future Health and Human Services Secretary Robert F. Kennedy's Children's Health Defense tried to get Rutgers University's mandate on students before the high court.

The nation's largest federal appellate court, the 9th Circuit, said it was following the lead of its "sister circuits that have considered substantive due process challenges to COVID-19 vaccine mandates" by subjecting them to the lowest level of judicial scrutiny, which a libertarian law firm has mocked as judicial abdication in the face of government misconduct.

Judges have often defaulted to Jacobson in challenges to COVID vaccine mandates, even when plaintiffs could demonstrate natural immunity from recovery, except when religious objections are raised, such as in a college athlete challenge.

A chastened judge ordered San Francisco to rehire a Muslim municipal worker after the 9th Circuit overturned his denial of an injunction. The judge had initially mocked the man for noting the jab can't stop the spread, which supposedly ignored the "scientific consensus."

HFDF wants SCOTUS to replace the "rational basis review" that was retroactively associated with Jacobson – judicial tiers of scrutiny weren't recognized before the Great Depression – with the "balancing test" from the 1990 precedent Cruzan, which itself said Jacobson "balanced" individual medical liberty against "the State’s interest in preventing disease."

This may require "overruling Jacobson or limiting it to its facts" – vaccines as defined before COVID – since the precedent became a "straitjacket" during the pandemic, the petition says, quoting the high court's explanation in Dobbs for junking its abortion rights precedent.

"And governments should know whether the definition of a 'vaccine' still matters—whether a shot’s failure to prevent infection renders it a medical treatment that is subject to heightened judicial scrutiny," rather than judicial speculation about what the government "could have thought," HFDF said, quoting a critical law review paper about rational basis.

Compulsory sterilization of 'three generations of imbeciles' relied on Jacobson

SCOTUS must not miss the forest for the trees, according to a brief led by Texas and joined by Alabama, Alaska, Arkansas, Idaho, Iowa, Kansas, Louisiana, Montana, Nebraska, South Carolina and Utah.

"The right to refuse medical treatment and the foundational liberty of bodily autonomy have deep historical roots," especially recognized by SCOTUS in "the context of bodily searches and the Fourth Amendment," the red states said, noting rulings against "compelled surgical intrusion" and "pumping a suspect's stomach" to retrieve evidence.

In the medical context, due process precedents require informed consent and its "logical corollary" of refusing treatment, and in Cruzan, SCOTUS let states raise the evidentiary bar for families to remove "life-sustaining treatment" from an "incompetent" person – thus affirming the right of a "competent person to refuse unwanted medical treatment," they said.

Jacobson is explicitly premised on "a governmental need to prevent the transmission and spread of a communicable disease" and cannot be read to trample the right to refuse treatment beyond that "narrow exception," the states said. SCOTUS made this plain when it approvingly cited public school smallpox vaccine mandates as "a means to prevent the spread."

The full 9th Circuit majority's analysis, which upheld the LAUSD mandate because "policymakers could reasonably conclude that the vaccines would protect the public’s health and safety," would bless compulsory treatment on competent individuals for "a purely paternalistic rationale: that the medical treatment is for the individual’s own good," the brief said.

The majority even misread the "the crux of the holding" in Jacobson, which was not whether the smallpox vaccine "actually prevented the spread" but whether the Legislature "reasonably believed" it did, the states said. By contrast, LAUSD's justification shifted from preventing infection and transmission to "mitigating serious symptoms."

The 9th Circuit seems to attach talismanic significance to the word "vaccine," encouraging governments to label any compulsory treatment as a "vaccine" now that the bar has been lowered to include "anything that lessens symptoms," as dissenting Judge Kenneth Lee warned, the brief said. It's a "blank check to foist health treatment mandates on the people."

The New Civil LIberties Alliance, which challenged COVID vaccine mandates by universities and through President Biden's sweeping executive orders, seized on the 9th Circuit's retroactive application of rational basis review to Jacobson, its finding that the precedent applies regardless of public benefit and its erasure of subsequent SCOTUS precedents.

Jacobson is irreconcilable with later decisions unless it's limited to vaccine mandates that are "necessary to protect third parties," NCLA said.

It bemoaned that COVID-era courts, "with little, no, or misguided analyses," read Jacobson to review "virtually all public-health measures adopted during a pandemic" under the forgiving tier of rational basis, showing they abdicated even a "cursory examination" of the precedent.

SCOTUS "applied a heightened standard of review, one that weighed the plaintiff’s substantial liberty interest in declining an unwanted vaccine against the government’s interest in preventing the spread of smallpox," and it made clear the limited contours of Jacobson in later rulings on the right to refuse treatment for personal benefit, NCLA said.

It warned that one of the high court's most infamous rulings, at the height of its approval for eugenics, "relied exclusively" on Jacobson. Virginia's compulsory sterilization of "feeble-minded" mental patients passed muster in Buck v. Bell because, as Justice Oliver Wendell Holmes said, "Three generations of imbeciles are enough."

"Tolerating too broad a reading of Jacobson risks heinous future applications," NCLA said.