Ninth Circuit puts brakes on vaccine mandates for San Diego students, California prison guards

(CN) — In a pair of rulings issued over Thanksgiving weekend, the Ninth Circuit blocked two vaccine mandates, one covering San Diego public school students, the other covering California prison guards.

A three-judge panel temporarily blocked the San Diego Unified School District's student vaccine mandate, for as long as the district offers exceptions for pregnant students. The panel's 2-page order said a full explanation of their decision would be issued later.

The student vaccine mandate, which was set to go into effect Monday, offered a medical exemption but no religious exemption. That's because since 2016, California law does not allow students to apply for a personal belief exemption from vaccine mandates.

Last month, a 16-year-old girl at Scripps Ranch High School sued the school district, writing: "Jill Doe’s faith prevents her from taking any of the currently available Covid-19 vaccinations due to their taint with aborted fetal cells."

Although none of the Covid vaccines contain fetal cells, it is true that fetal cell lines — cells grown in a lab from decades-old fetal tissue — were used in researching and developing the two mRNA vaccines made by Pfizer and Moderna. Johnson & Johnson also uses fetal cell lines in the manufacturing of its Covid vaccine.

The Catholic Church has written "it is morally acceptable to receive Covid-19 vaccines that have used cell lines from aborted fetuses in their research and production process" if other vaccines are not available. The vaccines made by Pfizer, Moderna and J&J are the only ones approved for use in the United States.

According to the judges' order, the district's vaccine mandate may take effect if the district removes its exemption for pregnant students.

"This is a very significant and promising first step," said the student's attorney, Paul Jonna. "Our client is pleased that she doesn’t have to comply with the mandate, at least for the time being.”

But the injunction may not last very long. On Monday afternoon, San Diego Unified filed a declaration with the court saying it had removed its pregnancy exemption — which, according to the district, no student had applied for — and asking the court to terminate its injunction. 

"We expect the court’s brief order issued last night will be short-lived, and the primary takeaway is that the court appears poised to uphold the district’s vaccination mandate in the face of numerous lines of attack,” said the school district's attorney Mark R. Bresee.

Jonna had said, however, that his client would file a new request for an injunction should the district jettison its pregnancy exemption.

The three-judge panel included U.S. District Judges Marsha Berzon, a Bill Clinton appointee, Sandra Ikuta, a George W. Bush appointee and Mark Bennett, a Donald Trump appointee.

Judge Ikuta issued a partial dissent to the ruling, writing she would keep the injunction in place until "the San Diego Unified School District ceases to treat any students (not just pregnant students) seeking relief from the vaccination mandate for secular reasons more favorably than students seeking relief for religious reasons."

That argument would seem to cut against an appeals court decision from 2018, which upheld California's repeal of its religious exemption.

A three-judge panel that included Ikuta and Bennett also temporarily blocked a statewide vaccine mandate covering all California prison guards, which was set to go into effect in January. Clinton-appointed U.S. Circuit Judge William Fletcher rounded out the panel.

The prison staff vaccine mandate arose out of a decades-long court case which placed medical care for California prisoners into the hands of a federal receiver, who made the decision to force prison employees to be vaccinated. The powerful prison guards union asked a federal judge to block the mandate, and Governor Gavin Newsom — who has largely been in favor of vaccine mandates — sided with the union in asking the judge to intervene. But the judge refused.

"We are very disappointed," said Laura Bixby, an attorney with Prison Law Office, which represents a class of California inmates, "especially that Governor Newsom sought to stay the court’s ruling, given that Covid cases are on the rise, given that Newsom is supportive of vaccine mandates in other contexts. I’m sure there is a political reason."

The union spent millions of dollars supporting Newsom's 2018 gubernatorial run and fighting against his recall earlier this year.

According to Bixby, more than 50,000 people in California's prison system have contracted Covid, and at least 240 of those have died.

Lawyers for the prison guards union could not be reached for comment.

"It’s certainly concerning," said Dorit Rubinstein Reiss, a professor at UC Hastings College of the Law, of the two Ninth Circuit decisions. "The court certainly seems to undervalue the harm of the Covid 19 pandemic. We currently have several outbreaks in prisons. We have a new variant. And that doesn’t figure in? That should worry us."

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