San Diego student vaccine mandate temporarily blocked by Ninth Circuit

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The Ninth Circuit Court of Appeals issued an emergency injunction pending appeal against the San Diego Unified School District (SDUSD) on Monday after a student-athlete sued the district for religious discrimination because of its COVID-19 vaccine mandate.

In September, the school board of the SDUSD voted in favor of requiring students aged 16 and up to be fully vaccinated against COVID by Dec. 20, which would require them to get their first dose by Monday. Anyone who failed to comply would be forced to attend school remotely.

Leah Lefkove, 9, covers her face as her dad Dr. Ben Lefkove gives her the first COVID-19 vaccine at the Viral Solutions vaccination and testing site in Decatur, Ga., on the first day COVID-19 vaccinations were available for children from 5 to 12 on Wednesday, Nov. 3, 2021. (AP Photo/Ben Gray)

In October, counsel with the Thomas More Society filed a lawsuit on behalf of the family of a 16-year-old Scripps Ranch High School student, referred to as "Jane Doe" in the court documents. The suit argued that religious exemptions should be allowed if the school district also allows medical exemptions for pregnant students.

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Many religious objections to the vaccines cite alleged use of fetal tissue related to their development. None of the COVID-19 vaccines contain fetal cells, but fetal cell lines, which are grown in a lab from decades-old fetal tissue, were utilized in the research and development of the vaccines dispensed by Pfizer, Moderna and Johnson & Johnson.

FILE PHOTO: An employee shows the Moderna COVID-19 vaccine at Northwell Health's Long Island Jewish Valley Stream hospital in New York, U.S., December 21, 2020. (REUTERS/Eduardo Munoz)

"The injunction shall be in effect only while a 'per se' deferral of vaccination is available to pregnant students under San Diego Unified School District’s COVID-19 vaccination mandate," Judges Marsha Berzon and Mark Bennett wrote in the ruling. "The injunction shall terminate upon removal of the ‘per se’ deferral option for pregnant students."

"I concur in granting Doe’s emergency motion for an injunction pending appeal," Judge Sandra Ikuta said. "But I would keep the injunction in effect 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, because any unvaccinated student attending in-person classes poses the same risk to the school district’s interest in ensuring a safe school environment."

A nurse gives a girl a dose of the Pfizer vaccine at a COVID-19 vaccine clinic at Lyman High School in Longwood on the day before classes begin for the 2021-22 school year.  (Paul Hennessy/SOPA Images/LightRocket via Getty Images)

Describing SDUSD's vaccine as "one of the harshest in the nation," Thomas More Society attorney Paul Jonna said in a statement provided to Fox News that the court order was "a significant victory," despite the case being in its early stages.

"SDUSD should promptly revise its policy to include religious exemptions for students. Otherwise, we are confident that we will fully vindicate our clients’ rights either in the Ninth Circuit or in the U.S. Supreme Court, if necessary," Jonna said.

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"The COVID regime of secular favorites but religious outcasts must end," Jonna added. "There is no vaccine exception to the Free Exercise Clause. Until that truth becomes the law of the land, the battle for religious freedom from state-coerced vaccination—while secular exemptees are given a pass—will not be over."

The SDUSD did not immediately respond to a request for comment.