Amicus Curiae Brief — Children's Health Defense, et al., Petitioners v. Rutgers, the State University of New Jersey, et al.

No. 23-1222

IN THE

Supreme Court of the United States

————

CHILDREN’S HEALTH DEFENSE, ET AL.,

v.

Petitioners,

RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY,

ET AL.,

Respondents.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

————

BRIEF OF AMICUS CURIAE ASSOCIATION OF

AMERICAN PHYSICIANS AND SURGEONS

IN SUPPORT OF PETITIONERS

————

ANDREW L. SCHLAFLY

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amicus Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

ii

TABLE OF CONTENTS

Pages

Table of Contents ................................................... ii

Table of Authorities .............................................. iii

Interests of Amicus Curiae .................................... 1

Summary of Argument .......................................... 2

Argument ............................................................... 3

I. The Petition Should Be Granted Because No

One Should Be Forced to Choose Between a

College Diploma and Informed Consent ............... 3

II. The Petition Offers an Excellent

Opportunity for the Court to Overturn

Jacobson v. Massachusetts .................................... 8

III. The Petition Should Be Granted to Resolve

the Widening Split Between the Third Circuit

Below, and the Fifth and Ninth Circuits, in

Reviewing Vaccine Mandates.............................. 12

Conclusion ............................................................ 16

iii

`

TABLE OF AUTHORITIES

Pages

Cases

Ass’n of Am. Physicians & Surgs. v. Clinton,

997 F.2d 898 (D.C. Cir. 1993) ......................... 2

Ass’n of Am. Physicians & Surgs. v. Mathews,

423 U.S. 975 (1975) ......................................... 2

Ass’n of Am. Physicians & Surgs. v. Tex. Med.

Bd., 627 F.3d 547 (5th Cir. 2010) ................... 2

Ass’n of Am. Physicians & Surgeons Educ.

Found. v. Am. Bd. of Internal Med., No. 2340423, 2024 U.S. App. LEXIS 13321

(5th Cir. June 3, 2024) ................................. 4-5

BST Holdings, L.L.C. v. OSHA, 17 F.4th 604

(5th Cir. 2021).......................................... 13, 14

Buck v. Bell, 274 U.S. 200 (1927) ..................... 8, 9

Children’s Health Def., Inc. v. Rutgers,

93 F.4th 66 (3d Cir. 2024) ..................... 5, 7, 11

Health Freedom Def. Fund, Inc. v. Carvalho,

No. 22-55908, 2024 U.S. App. LEXIS 13910

(9th Cir. June 7, 2024) .............................. 4, 15

Jacobson v. Massachusetts,

197 U.S. 11 (1905)

.......................... ii, 2-3, 7, 8-9, 10, 11, 12, 15, 16

Lau Ow Bew v. United States,

144 U.S. 47 (1892) ......................................... 10

Mast v. Fillmore Cty., 141 S. Ct. 2430 (2021) ...... 3

Nat’l Fed’n of Indep. Bus. v. DOL, OSHA,

595 U.S. 109, 142 S. Ct. 661 (2022) ....... 5-6, 14

iv

Sambrano v. United Airlines, Inc.,

No. 21-11159, 2022 U.S. App. LEXIS 4347

(5th Cir. Feb. 17, 2022) ................................. 15

United States v. Kirby,

74 U.S. (7 Wall.) 482 (1869) .......................... 10

Other Authorities

CPI Inflation Calculator,

https://www.in2013dollars.com/us/

inflation/1905?amount=5 ................................ 9

Katalin Karikó, Breaking Through: My Life in

Science 184 (2023) ........................................... 5

Samir Okasha, Philosophy Of Science: A Very

Short Introduction 77 (2nd ed. 2016).............. 5

Rutgers University Tuition and Fees (Last

Updated – 06/2023),

https://tinyurl.com/2wk2drye ........................ 11

No. 23-1222

IN THE

Supreme Court of the United States

CHILDREN’S HEALTH DEFENSE, ET AL.,

Petitioners,

v.

RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY,

ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

INTERESTS OF AMICUS CURIAE1

Amicus Association of American Physicians and

Surgeons (“AAPS”) is a national association of

physicians, founded in 1943. AAPS is dedicated to

protecting the patient-physician relationship, and to

defending the right of patients to make their own

personal decisions about whether to receive an

Amicus AAPS provided the requisite ten days’ prior written

notice to all the parties. Pursuant to Rule 37.6, counsel for

amicus curiae authored this brief in whole, no counsel for a party

authored this brief in whole or in part, and no such counsel or a

party made a monetary contribution intended to fund the

preparation or submission of this brief. No person or entity –

other than Amicus AAPS, its members, and its counsel –

contributed monetarily to the preparation or submission of this

brief.

1

2

experimental or novel vaccine injection. AAPS has

been a litigant in this Court and in other appellate

courts. See, e.g., Ass’n of Am. Physicians & Surgs. v.

Mathews, 423 U.S. 975 (1975); Ass’n of Am. Physicians

& Surgs. v. Tex. Med. Bd., 627 F.3d 547 (5th Cir. 2010);

Ass’n of Am. Physicians & Surgs. v. Clinton, 997 F.2d

898 (D.C. Cir. 1993).

As a longstanding medical association devoted to

defending the rights of patients to withhold informed

consent about novel and experimental treatments,

amicus AAPS has strong interests in this matter.

SUMMARY OF ARGUMENT

Informed consent for experimental medical

treatments is a matter of national significance, and

students should not be forced to choose between their

college diplomas and their bodily integrity. “Vaccine

mandate” is not a pejorative term, as declared by the

Third Circuit decision below while affirming the

premature dismissal of this lawsuit, but is an accurate

description used in more than a thousand court

decisions, including rulings by this Court. Rutgers

prohibited students, who are burdened by enormous

debt in seeking a college degree, from attending inperson classes unless they received injections with the

Covid vaccine. Students forced to choose between a

college diploma and an experimental vaccine have a

cause of action to challenge that mandate by a state

university. Now, free of the hysteria surrounding the

Covid pandemic, is the best time to address this

coercive violation of informed consent, and allow

students’ claims to proceed to discovery below.

The Petition offers an excellent opportunity for the

Court to overturn Jacobson v. Massachusetts, which is

3

an outdated precedent causing havoc of national

significance. 197 U.S. 11, 39 (1905). Jacobson itself

never held in favor of vaccine mandates having the

draconian penalties that are common today. Moreover,

individual rights are far more robust now than in

1905, when Jacobson was decided, and recognition of

a right to decline novel medical treatment is inherent

in the right of self-defense long recognized by this

Court. Revisiting Jacobson now, beyond any

pandemic, is an ideal time.

Finally, this Court should grant the Petition for

review because there is a widening split in the Circuits

on the issue of vaccine mandates. While the Third

Circuit below adopted a highly deferential standard of

review to hold sweepingly in favor of a harsh college

vaccine mandate, the Fifth and Ninth Circuits have

gone in the opposite direction by properly performing

meaningful judicial review. This Court should grant

the Petition to resolve the widening split in Circuit

reasoning.

ARGUMENT

I. The Petition Should Be Granted Because

No One Should Be Forced to Choose Between

a College Diploma and Informed Consent.

The Third Circuit below slammed the door shut on

students wrongly forced to choose between receiving

the traditional in-person college education they were

admitted into college to pursue, and submitting to

medical treatment without informed consent. “In this

country, neither the Amish nor anyone else should

have to choose between their farms and their faith.”

Mast v. Fillmore Cty., 141 S. Ct. 2430, 2434 (2021)

(Gorsuch, J., concurring). Likewise, no one should be

4

compelled to forgo either a college diploma or informed

consent in connection with an experimental biological

injection.

Informed consent was impossible for the Covid

vaccine required by Rutgers. The vaccine’s long-term

toxicity is unknown. Its short-term toxicity was never

properly assessed. Upon release to the public there

were astronomical numbers of injuries reported to the

Vaccine Adverse Event Reporting System (VAERS) –

under threat of punishment for any false reports –

incurred within days of receiving the vaccine. The

Covid vaccine was never shown to prevent infection,

spread of Covid, hospitalization, or deaths. See Health

Freedom Def. Fund, Inc. v. Carvalho, No. 22-55908,

2024 U.S. App. LEXIS 13910, at *22 (9th Cir. June 7,

2024) (“[Defendant] only provides a CDC publication

that says ‘COVID-19 vaccines are safe and effective.’

But ‘safe and effective’ for what?”). Informed consent for

this novel biological agent was impossible, and coercing

this product through mandates was profoundly

unethical.

The vaccine mandate at Rutgers, which was initially

imposed against only students – the demographic at least

risk from Covid – and not the more at-risk faculty or

staff, was driven by financial conflicts of interest and

political alliances. Abuse of power by government

agencies and government-appointed, so-called experts,

like Dr. Anthony Fauci, is incompatible with the

principle of informed consent, the ethical practice of

medicine, and the standard of individual rights.

“Yes, we should absolutely follow the science. But

that doesn’t mean we should always follow scientists.

Because scientists don’t always follow the science.”

Ass’n of Am. Physicians & Surgeons Educ. Found. v.

5

Am. Bd. of Internal Med., No. 23-40423, 2024 U.S.

App. LEXIS 13321, at *26 (5th Cir. June 3, 2024) (Ho,

J., dissenting in part). See also Samir Okasha,

Philosophy Of Science: A Very Short Introduction 77

(2nd ed. 2016) (observing that scientists are subject to

“peer pressure”); Katalin Karikó, Breaking Through:

My Life in Science 184 (2023) (“I had become a very

good scientist. But I was learning that succeeding at a

research institution like Penn required skills that had

little to do with science.”).

The Third Circuit below adopted an overly

deferential, rational-basis standard of review to

dismiss serious allegations of wrongdoing by the state

university. The court merely required that Rutgers

provide “a conceivable rational basis for its action” or

that the court hypothesize one for it. Children Health

Def., Inc. v. Rutgers, 93 F.4th 66, 84 n.37 (3d Cir.

2024). The dissent below correctly criticized the flaw

in the standard used by the panel majority. “Rational

basis review requires us to look to the rationale

Rutgers gave for imposing the mandate, not to some

hypothetical rationale the University might wish it

had given, or, as in this case, one the Majority devises.”

Id. at 89 (Jordan, J., concurring and dissenting in

part).

The Third Circuit cites other decisions that

likewise prematurely dismissed complaints against

vaccine mandates without allowing discovery, while

ignoring the precedents of this Court and other Courts

of Appeals against the Covid-related mandates. This

Court rather emphatically blocked the requirement by

the Biden Administration that employees of large

employers be mandated to receive the vaccine. Nat’l

Fed’n of Indep. Bus. v. DOL, OSHA, 595 U.S. 109

6

(2022). So why is there any doubt that students have

a valid cause of action to challenge an analogous

vaccine mandate against them? Of course students

have a legitimate claim against Rutgers for its

requirement of Covid vaccination in order to pursue an

education there, and it was improper for the Third

Circuit to apply the highly deferential rational-basis

standard of review in order to dismiss the lawsuit

below.

This lawsuit was dismissed contrary to ordinary

standards of notice pleading, thereby cutting off

discovery that should have been readily available.

Robust judicial review should exist for college students

who are subjected to a vaccine mandate accompanied

with harsh penalties, particularly when the mandate

did not even initially apply to faculty and staff present

on the same campus. Vaccine mandates are driven by

financial conflicts of interest and political alliances,

and the very deferential standard of review used below

amounts to a denial of judicial review about an

improper infringement on individual rights.

The allegations made below, which should have

been taken as true on the motion to dismiss, describe

financial conflicts of interest at Rutgers which gave it

an incentive to impose its suffocating vaccine mandate

on students. When a life-changing injection is required

of thousands of students, and motivation for that

requirement is tainted with conflicts-of-interest,

meaningful judicial review should exist.

Safeguards exist against financial incentives for

legislators to impose mandates on the general public,

and the process of legislative hearings ensures some

transparency to the process and the decision-making.

But no such protections are in place against undue

7

influence of university officials to require vaccination

of thousands of students, and to withhold diplomas

from those who decline an injection. When the vaccine

is experimental, as the Covid vaccine has been, a

highly deferential standard of judicial review is

inappropriate amid numerous indications of political

and financial bias motivating a mandate.

The Third Circuit below concluded that:

In short, there is no fundamental right to refuse

vaccination, nor any unconstitutional condition

implicated here. Accordingly, we apply rational

basis review to Rutgers’ Policy as did the Court

in Jacobson and as we have done traditionally with

the policies of other universities.

Children’s Health Def. v. Rutgers, 93 F.4th at 81.

This extremely deferential standard of review

adopted by the Third Circuit is woefully inadequate.

The well-established right of self-defense, although

found nowhere in the U.S. Constitution, is implicated

by a vaccine mandate using an experimental

substance. Moreover, an undue financial incentive to

treat students as though they are guinea pigs, as fully

alleged in this lawsuit, warrants development of a

factual record in discovery rather than dismissal based

on a highly deferential standard of review.

Defendant’s stated rationale should not be accepted at

face value, without even allowing discovery as to

whether the purported reason was the real one, when

thousands of students’ lives are disrupted so severely.

The rational-basis standard of review exists for

commercial legislation, not for imposing the

equivalent of a medical experiment on students who

could be harmed the rest of their lives from it. There

8

might be an inherent presumption of good faith and

validity in a law that is enacted in a transparent

manner based on public hearings, passed by two

legislative chambers, and signed by a governor. No

such checks-and-balances exist in backroom decisionmaking made at an university with its own conflicts of

interest.

The Third Circuit reasoned that students could

seek an education elsewhere, but that fails to

recognize that students had worked hard to earn their

admission to Rutgers and had invested enormously in

its costly programs. The term “refund” appears

nowhere in the decision below, and the disruption to

students’ education and their ability to obtain letters

of recommendation are profound when they are forced

out for this reason unrelated to academic achievement.

A student plainly has a cause of action when denied

his chosen course of study as Rutgers has done.

The decision to receive an experimental or novel

injection – the Covid vaccine – is a highly personal one

not to be coerced by holding students’ education

hostage. This is as much an issue of national

significance as the student loan controversy is, and the

Petition should be granted.

II.

The Petition Offers an Excellent

Opportunity for the Court to Overturn

Jacobson v. Massachusetts.

Jacobson v. Massachusetts was the cornerstone of

the horrific (and racist) eugenics movement that

yielded the much-criticized holding in Buck v. Bell:

The principle that sustains compulsory vaccination

is broad enough to cover cutting the Fallopian

tubes. Jacobson v. Massachusetts,

197

U.S.

9

11. Three generations of imbeciles are enough.

Buck v. Bell, 274 U.S. 200, 207 (1927). To uproot this

error by Justice Oliver Wendell Holmes, Jr., in Buck

v. Bell, it is necessary to overturn Jacobson, and the

Petition presents an ideal opportunity to correct this

terrible blight in Supreme Court jurisprudence.

To be sure, the precedent of Jacobson was not

initially as tyrannical as it has become with its

expansive application to uphold every vaccine

mandate imaginable. Jacobson merely affirmed a $5

fine (equivalent to $178.15 in today’s dollars) 2 of an

adult who declined a vaccine intended to halt the

spread of smallpox in a community “confessedly

endangered by the presence of a dangerous disease.”

Jacobson, 197 U.S. at 39. That is a far cry from

denying students a college education because they

decline an experimental vaccine, and particularly a

vaccine that never halted the spread of the disease

(Covid). Moreover, the defendant in Jacobson

apparently never asserted any reason, such as a

medical or religious basis, for declining the smallpox

vaccine.

The Supreme Court itself in Jacobson emphasized

that its decision should not be applied broadly, as

many courts are wrongly doing today:

It is easy, for instance, to suppose the case of an

adult who is embraced by the mere words of the act,

but yet to subject whom to vaccination in a

particular condition of his health or body, would be

cruel and inhuman in the last degree. We are not

2 CPI Inflation Calculator,

https://www.in2013dollars.com/us/inflation/1905?amount=5

(viewed June 6, 2024).

10

to be understood as holding that the statute was

intended to be applied to such a case, or, if it was

so intended, that the judiciary would not be

competent to interfere and protect the health and

life of the individual concerned. “All laws,” this

court has said, “should receive a sensible

construction. General terms should be so limited in

their application as not to lead to injustice,

oppression or absurd consequence. It will always,

therefore, be presumed that the legislature

intended exceptions to its language which would

avoid results of that character. The reason of the

law in such cases should prevail over its letter.”

United States v. Kirby, 7 Wall. 482; Lau Ow Bew v.

United States, 144 U.S. 47, 58.

Jacobson v. Massachusetts, 197 U.S. at 38-39.

The Jacobson decision then created a medical

exemption from vaccination that is largely ignored by

applications of that decision today:

Until otherwise informed by the highest court of

Massachusetts we are not inclined to hold that the

statute establishes the absolute rule that an adult

must be vaccinated if it be apparent or can be

shown with reasonable certainty that he is not at

the time a fit subject of vaccination or that

vaccination, by reason of his then condition, would

seriously impair his health or probably cause his

death.

Id. at 39.

The Third Circuit decision blows through the above

limits imposed by Jacobson, and instead declares that

“the federal appellate courts, for their part, have

uniformly relied on Jacobson in dismissing challenges

11

to vaccination requirements.” Children’s Health Def. v.

Rutgers, 93 F.4th at 80 & n.29 (citing repetitively to

only the Seventh, Sixth, and Second Circuits). The

appellate decision below also asserts that “in the last

three years alone, the Supreme Court has cited

Jacobson five times,” but none of its examples is to

anything more than dissents and concurrences. Id. at

80 & n.28.

In its expansive misapplication of Jacobson, the

Third Circuit below further held that “the penalties for

non-compliance in Jacobson were more, not less,

severe than those at issue here: The city ordinance

authorized criminal prosecution and imprisonment for

up to fifteen days.” Id. at 79. That penalty is paltry

compared with the cost of higher education today, even

at publicly funded universities like Rutgers. As of June

2023, the annual cost of attendance at Rutgers was

$34,780 (in-state) and $52,480 (out-of-state).3 This

enormous investment required of students imposes

life-changing debt burdens on them for decades to

come, far more than the mere $5 fine and possibility of

15 days in prison (which was not imposed) in Jacobson.

Students who had already invested heavily in their

education at Rutgers were generally forced to abandon

their investment or abandon their right to informed

consent.

In 1905, unlike today, natural law provided a basis

for meaningful judicial review of an inhumane

governmental action, as a one-size-fits-all mandate of

an experimental vaccine is. The existence or absence

of a constitutional right was not dispositive as to the

3 Rutgers University Tuition and Fees (Last Updated – 06/2023),

https://tinyurl.com/2wk2drye (viewed June 6, 2024).

12

level of scrutiny applied by a federal court, in 1905.

Yet Jacobson has since become a rubber stamp for

judicial affirmance of any and all vaccine mandates.

Jacobson was never intended to be that, but it appears

impossible to turn back the clock at this point to

salvage it. Instead, Jacobson should be overruled, and

the extensive misapplication of it by the Third Circuit

below makes the Petition an ideal vehicle for

correcting this.

III.

The Petition Should Be Granted to

Resolve the Widening Split Between the

Third Circuit Below, and the Fifth and Ninth

Circuits, in Reviewing Vaccine Mandates.

While the panel majority below presented its

decision as being in uniformity with other courts, the

opposite is true as neither the Fifth nor the Ninth

Circuit rubber-stamps vaccine mandates as the Third

Circuit did. The overly deferential standard of review

adopted by the Third Circuit in reviewing a vaccine

mandate stands in sharp contrast with multiple

decisions by the Fifth and Ninth Circuits, and by this

Court. Rather than allow this Circuit split to worsen,

the Petition presents an optimal case for resolving it.

In a challenge to one of the famous Covid vaccine

mandates by the Biden Administration, the Fifth

Circuit issued a stay with the following reasoning:

The Mandate is staggeringly overbroad. Applying

to 2 out of 3 private-sector employees in America,

in workplaces as diverse as the country itself, the

Mandate fails to consider what is perhaps the most

salient fact of all: the ongoing threat of COVID-19

is more dangerous to some employees than

to other employees. All else equal, a 28 year-old

13

trucker spending the bulk of his workday in the

solitude of his cab is simply less vulnerable to

COVID-19 than a 62 year-old prison janitor.

Likewise, a naturally immune unvaccinated

worker is presumably at less risk than an

unvaccinated worker who has never had the virus.

The list goes on, but one constant remains—the

Mandate fails almost completely to address, or

even respond to, much of this reality and common

sense.

BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 615 (5th

Cir. 2021).

In contrast, the Third Circuit completely omits any

recognition of how college students, due to their

relatively young age, had very little risk of harm from

Covid. The Third Circuit analysis further overlooks

how “a naturally immune unvaccinated worker is

presumably at less risk,” as candidly observed by the

Fifth Circuit. Id. The vaccine mandate by Rutgers was

“staggeringly overbroad,” and yet that factor was not

a consideration to the Third Circuit, in contrast with

the more objective analysis by Fifth Circuit.

“The petitioners’ challenges to the Mandate show a

great likelihood of success on the merits, and this fact

weighs critically in favor of a stay,” the Fifth Circuit

held. BST Holdings, 17 F.4th at 618. With its opposite

approach, the Third Circuit’s analysis below upheld

Rutger’s vaccine mandate based on a highly

deferential standard of review that relied on

imagining any conceivable justification for it. Blatant

corruption in the decision-making by the university

would not have changed the outcome in the Third

Circuit, under its flawed reasoning.

14

The U.S. Supreme Court ultimately ruled as the

Fifth Circuit had in staying the same vaccine mandate

by the Biden Administration:

The Fifth Circuit initially entered a stay [in BST

Holdings]. But when the cases were consolidated

before the Sixth Circuit, that court lifted the stay

and allowed OSHA’s rule to take effect.

Applicants now seek emergency relief from this

Court, arguing that OSHA’s mandate exceeds its

statutory authority and is otherwise unlawful.

Agreeing that applicants are likely to prevail, we

grant their applications and stay the rule [that

imposed a vaccine mandate].

Nat’l Fed’n of Indep. Bus. v. DOL, OSHA, 595 U.S. 109,

142 S. Ct. 661, 663 (2022).

The Fifth Circuit also ruled against United Airlines

(“United”), in a challenge related to a vaccine mandate

it imposed on its pilots and flight attendants. Like

Rutgers, United ostensibly provided a religious

exemption. Like Rutgers, the religious exemption

carried

with

it

substantial

burdens

and

inconveniences, which were entirely unjustified by any

science.

When employees challenged United’s vaccine

mandate, the reasoning and outcome were very

different in the Fifth Circuit compared with the Third

Circuit, and the Fifth Circuit took the better route of

applying meaningful judicial review to what United

had done:

Plaintiffs are United Airlines employees. United

has given them a choice: receive the COVID-19

vaccine or be placed on unpaid leave indefinitely.

The question we address here is narrow. If United’s

15

policy is not preliminarily enjoined, are plaintiffs

likely to suffer irreparable harm? For the two

plaintiffs who received religious exemptions and

remain on unpaid leave, we hold that they are. We

therefore REVERSE the decision of the district

court and REMAND for consideration of the other

factors courts must evaluate when deciding

whether to issue a preliminary injunction.

Sambrano v. United Airlines, Inc., No. 21-11159, 2022

U.S. App. LEXIS 4347, at *2 (5th Cir. Feb. 17, 2022).

The Ninth Circuit recently rejected application of

Jacobson to vaccine mandates because “Jacobson …

did not involve a claim in which the compelled vaccine

was designed to reduce symptoms in the infected

vaccine recipient rather than to prevent transmission

and infection.” Health Freedom Def. Fund, 2024 U.S.

App. LEXIS 13910, at *21 (inner quotations omitted).

The shots were never shown to prevent transmission

of Covid, and indeed the manufacturers never even

made that claim. Rather, the shots are gene-based

medical treatments and, unlike the Third Circuit, the

Ninth Circuit recognized this distinction:

The district court thus erred in holding

that Jacobson extends beyond its public health

rationale – government’s power to mandate

prophylactic measures aimed at preventing the

recipient from spreading disease to others – to also

govern “forced medical treatment” for the

recipient’s benefit.

Id. There, as here, the issue is forced medical

treatment, and:

we must accept Plaintiffs’ allegations that the

vaccine does not prevent the spread of COVID-19

16

as true. And, because of this, Jacobson does not

apply. [Defendant] cannot get around this

standard by stating that Plaintiffs' allegations are

wrong.

Id. (emphasis added).

Now is the best time to close the growing gap

between the Third, Fifth, and Ninth Circuits, and the

Petition presents an ideal vehicle for resolving this

Circuit conflict.

CONCLUSION

This Court should grant the Petition for the

reasons stated in it, and for those explained above.

Respectfully submitted,

ANDREW L. SCHLAFLY

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amicus Curiae

Dated: June 10, 2024