Ninth Circuit did not rule COVID-19 shots are not vaccines | Fact check

The claim: US court ruled COVID-19 shots don't qualify as traditional vaccines

An Instagram post ( direct link , archive link ) shows a headline from the conservative media outlet LouDobbs.com.

"BREAKING: 9th Circuit Court of Appeals Rules mRNA COVID-19 Jab is NOT a Vaccine Under Traditional Medical Definitions," reads the headline.

The June 10 post was liked more than 3,000 times in about two months. A similar post on Instagram was liked more than 5,000 times in two months. Variations also spread across social media platforms .

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Our rating: False

The 9th U.S. Circuit Court of Appeals made no such ruling, a legal expert said. The claim misstates the appellate court's opinion in an ongoing lawsuit challenging the pandemic-era vaccination policy of a California school district.

Circuit court did not rule COVID-19 vaccines are not vaccines

The LouDobbs.com article referenced in the Instagram post is about a ruling by the 9th Circuit in June that reopened a 2021 lawsuit alleging the pandemic-era vaccination policy of the Los Angeles Unified School District violated the right of workers to refuse medical treatment. The school district was one of many that mandated the COVID-19 vaccine for employees during the pandemic.

The lawsuit – which names several school district employees as plaintiffs – claims COVID-19 vaccines are not "vaccines," as that term has traditionally been understood, because they do not "prevent the infection or transmission" of the virus. Rather, the lawsuit asserts they are "treatments" that reduce symptoms of the disease, a distinction at the heart of the plaintiffs' argument against the school district's previously imposed vaccination mandate.

A U.S. district judge dismissed the case in 2022 after concluding, in part, that the school district had a legitimate government purpose in requiring COVID-19 vaccination. The 9th Circuit's June 7 ruling overturned the dismissal and sent the case back to the district court for further proceedings. The appellate court held that the district judge misapplied an early 1900s U.S. Supreme Court decision that upheld a vaccination mandate for smallpox .

But the 9th Circuit did not rule COVID-19 shots are not vaccines, said Dorit Reiss , a law professor at the University of California College of the Law San Francisco whose research includes legal issues related to vaccines. Instead, the appeals court allowed the workers' claims that the shots are not vaccines to go on to the fact-finding stage of the case, Reiss said, citing the 9th Circuit's opinion .

The opinion says the 9th Circuit panel of judges was required to treat the school district employees' allegations about the COVID-19 vaccine as true for the purpose of analyzing whether the district court properly applied a 1905 Supreme Court case Jacobson v. Massachusetts , which held that mandatory vaccinations were rationally related to preventing the spread of smallpox. The appeal was based on use of the 1905 case, so the court essentially created a hypothetical conclusion to the still-undecided question of vaccine definitions in order to consider the question that arises once that is settled.

"At this stage, we must accept plaintiffs' allegations that the vaccine does not prevent the spread of COVID-19 as true," the 9th Circuit's opinion states.

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It goes on to say, "We note the preliminary nature of our holding. We do not prejudge whether, on a more developed factual record, plaintiffs' allegations will prove true. ... 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."

Reiss, the law professor, boiled the 9th Circuit's decision down further.

"In essence, the court ruled that because it is so early in the proceeding, they are treating the plaintiffs' claims as true, and if the plaintiffs were right, the standard the district court used – Jacobson – is the wrong standard," she said.

The lawsuit is ongoing.

COVID-19 vaccines are effective at protecting people from serious illness, hospitalization and death, according to the Centers for Disease Control and Prevention .

Attorneys for the plaintiffs and defendants in this case did not respond to requests for comment. Attempts to reach LouDobbs.com for comment were not successful. The Instagram users who shared the posts did not immediately respond to requests for comments.

Science Feedback also debunked the claim.

Our fact-check sources:

• Dorit Reiss , June 24, Email exchange with USA TODAY
• 9th U.S. Circuit Court of Appeals, June 7, Opinion
• U.S. District Court for the Central District of California, March 14, 2022, Second Amended Complaint for Violation of Civil Rights and Declaratory and Injunctive Relief
• U.S. District Court for the Central District of California, Sept. 2, 2022, Order GRANTING Defendants’ Motion for Judgment on the Pleadings
• CalMatters, June 7, Trump-appointed judges revive lawsuit against L.A. schools’ COVID vaccine mandate

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This article originally appeared on USA TODAY: Ninth Circuit did not rule COVID-19 shots are not vaccines | Fact check