A few months ago we posted about how the Supreme Court’s decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) held up against challenges to COVID-19 vaccine mandates.  The decision—which upheld a smallpox vaccination order over 100 years ago—has fared very well. Jacobson’s recognition that “society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy” applies today as much as it did in 1905. Id. at 26.  Today’s post addresses another COVID-19 decision relying on Jacobson to uphold vaccine mandates instituted for healthcare workers.  

Plaintiffs in Curtis v. Inslee, __ F.4th __, 2025 WL 2827880 (9th Cir. Oct. 6, 2025) were healthcare employees in Washington state who challenged the state’s COVID-19 vaccine mandate.  The district court dismissed the complaint, and the plaintiffs appealed to the Ninth Circuit.  Consistent with the strong trend discussed in our prior post, the Ninth Circuit affirmed the district court:

Although [plaintiffs] throw the kitchen sink at the [vaccine mandate], none of their wide-ranging sources of purported rights supports their federal claims. As for the state-law claims, the district court correctly dismissed with prejudice the claims against the Governor and left the merits of the claims against [plaintiffs’ employer] for state courts to adjudicate.

Id. at *1.  

Plaintiffs pulled from a variety of sources to claim that the vaccine mandate violated established and enforceable rights, and they sued to enforce those “rights” under 42 U.S.C. § 1983.  The first of the plaintiffs’ “kitchen sink” claims was based on section 360bbb-3 of the Food Drug and Cosmetic Act. Under that section, the FDA can authorize the use of a drug in certain circumstances, and the secretary of health and human services is required to provide “[a]ppropriate conditions . . . to ensure that individuals to whom the product is administered are informed of the option to accept or refuse administration of the product.” Id. at *3.  Without deciding whether the statute even applied to the defendants, the court held that any enforcement of the Food Drug and Cosmetic Act is limited to public actions. As a result, section 360bbb-3 did not create any private right of action that the plaintiffs could enforce.

Plaintiffs also tried to leverage 10 U.S.C. § 980, which provides that funds “appropriated to the Department of Defense may not be used for research involving a human being as an experimental subject.”  Id.  “Spending-power statutes, like this one, are ‘especially unlikely’ to confer an enforceable right,” Id. (quoting Medina v. Planned Parenthood S. Atl., __ U.S. __, 145 S. Ct. 2219, 2230 (2025)), and  plaintiffs could not rely on the statute to enforce any rights under Section 1983. The court reached the same result for plaintiffs’ claim under the Public Readiness and Emergency Preparedness Act, 42 U.S.C. § 247d-6, which did not include any “rights creating language” sufficient to create an enforceable right for the plaintiffs.

Aside from their claim that these statutory provisions created enforceable rights, plaintiffs relied on an international treaty, a CFR regulation, a report by the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, an agreement between HHS and institutions involved in federally funded research, vaccination contracts between the CDC and medical providers, and the vaccine’s emergency use authorizations.  None of these non-statutory sources provided plaintiffs with any enforceable right, and the court made short work of each of them.

Plaintiffs’ last category of claims in the “kitchen sink” were constitutional claims—substantive due process, procedural due process, and equal protection. Relying on Jacobson and Health Freedom Defense Fund, Inc. v. Carvalho, 148 F.4th 1020 (9th Cir. 2025) (also discussed in our Jacobson post), the Ninth Circuit ruled that plaintiffs could not prevail on any substantive due process claim regarding a purported “right to refuse an investigational drug without penalty or pressure.” Id. at *7. 

As to procedural due process, the plaintiffs’ “at-will” employment status was not a constitutionally protected property interest under the Fourteenth Amendment.  And, even if they had alleged a sufficient deprivation of an enforceable right, they did not plausibly allege that they weren’t afforded all the procedural process they were due. Rather than challenging the process by which the state standard was effected, the plaintiffs were really challenging the standard itself. Such a challenge “is not a question to be answered by procedural due process. The Supreme Court long ago held that ‘legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subjects to which it relates.’” Id. at *8 (quoting Dent v. West Virginia, 129 U.S. 114, 124 (1889)).  The court held that the plaintiffs’ procedural due process claims, which were really claims to alter the state’s policies rather than a failure of providing appropriate procedural protections, failed.

For plaintiffs’ equal protection claim, the court concluded that “the state action here easily survives rational-basis review.” Id. at *9.  The Ninth Circuit previously held that stemming the spread of COVID-19 wasn’t merely a legitimate state interest, it was “unquestionably a compelling one.” Id., (quoting Wash. State Dep’t of Lab. & Indus., 4 F.4th 747, 748 (9th Cir. 2021)). And recent Supreme Court precedent clearly supported a holding that the state could have “rationally decided” that a vaccine mandate for healthcare workers would help stem the spread of COVID-19:  

COVID-19 is a highly contagious, dangerous and—especially for Medicare and Medicaid patients—deadly disease.  The Secretary of Health and Human Services determined that a COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. . . . He accordingly concluded that a vaccine mandate is necessary to promote and protect patient health and safety in the face of the ongoing pandemic.

Id. at *9 (quoting Biden v. Missouri, 595 U.S. 87, 93 (2022)).

The plaintiffs also brought state law claims for breach of contract, employment tort, outrage, and invasion of privacy. The district court dismissed those claims against the Governor for failure to state a claim, and the Ninth Circuit affirmed.  For the “outrage” claim, the court noted that the state’s vaccine mandate did not “remotely constitute conduct utterly intolerable in a civilized community.” Id. at *10.

For the defendant employer, however, the district court declined to exercise supplemental jurisdiction over the remaining state law claims. After it dismissed all the claims over which it had original jurisdiction, the district court held that the remaining state law claims raise “novel or complex issues of state law.”  Id. at *11. The Ninth Circuit held that the district court was within its discretion to decline to exercise supplemental jurisdiction. That is certainly a disappointment for the healthcare employer, but given the foundation established in the Ninth Circuit’s opinion, it seems highly unlikely that plaintiffs could prevail on any of their remaining state law claims.