The Right of Access to the Courts When Deprived of Life, Liberty, or Property
Imagine for a moment that you spent twenty years building a well-established real estate, salon, or other business, or ten years in medical school to become a surgeon, or thirty years on the police force or in the fire service — only to be forced by a state mandate to inject an experimental drug into your body and, as a condition of continuing to enjoy the success you built, to waive your constitutional right to access the courts if that drug injures you. This is no longer hypothetical. It is the legal reality now facing the Nation, the product of historic levels of judicial procedural abuse by the Ninth and other federal circuit courts.1 Beginning in 2021, state actors across the Nation began mandating the use of covered countermeasures — FDA-classified as investigational 2 (i.e., experimental) — that were shielded from civil liability under the PREP Act. In practice, these requirements, backed by the force of law, unconstitutionally compelled Americans to prospectively surrender their right of access to the courts if they were deprived of life, liberty, or property as a result of complying with State policy — leaving them to bear alone the emotional, financial, and legal consequences of any resulting injury for the remainder of their lives— an unspeakable evil. The Supreme Court of the United States has now called for a response in Boysen v. PeaceHealth — a case presenting what is, in its implications, the single most consequential constitutional question the Court can answer.3 Stated plainly: May a State condition access to a public benefit — the right to practice a licensed profession, to hold public employment, to receive an education, or to participate in the ordinary economic life of the community — on an individual’s prospective surrender of the constitutional right to seek a judicial remedy when deprived of life, liberty, or property as a result of complying with a State health mandate?
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1Full details of this abuse is outlined in a report to the U.S. Congress: An Unspeakable Evil: The Coerced Administration of Investigational Drugs and the Covert Experimentation of the American People — A Report to the U.S. Congress on the Conduct of the Department of Health and Human Services, the Food and Drug Administration, and the Judicial Branch, and on the Threat Their Conduct Poses to the National Security of the United States. (July 2026), CovidPenalty.com. 2 Pfizer-BioNTech COVID-19 Vaccine operates under investigational drug application No. 19736 3 Supreme Court Docket No. 25-1280. Responses are due July 17th, 2026.
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The Supreme Court answered this question long ago, establishing a bright-line rule that “a man may not barter away his life or his freedom, or his substantial rights.” Insurance Co. v. Morse, 87 U.S. 445, 451 (1874). Conditioning a constitutional right on the acceptance of a public benefit is not regulation. It is amendment — a transfer of the power to alter the Constitution from the People, in whom Article V vests it, to the political branches of the State, in whom it was never placed. The purpose of this article is to demonstrate why this is so: by tracing the right of access to the courts to its deepest historical roots, establishing its place in the constitutional order, and showing that a century of Supreme Court precedent forbids a State from extracting its surrender through the leverage of a conditioned benefit.
I. The Right of Access to the Courts:
Eight Centuries of Guarantee The constitutional right of access to the courts — the right of one member of society to seek redress when another has deprived him of life, liberty, or property — is among the oldest and most deeply rooted rights in the Anglo-American tradition. It predates the Constitution and the common law as we now understand it. In 1215, standing in a water meadow known as Runnymede, in Surrey, England, King John affixed his seal to the Magna Carta. Clause 40 of that Great Charter states: To no one will we sell, to no one deny or delay, right or justice. In one statement, King John was bound by three distinct promises, each of which remains a pillar of the right of access to courts today. First, the King may not sell justice — he may not condition access to the courts on payment of a fee or a bribe. Justice was not a commodity to be purchased by the wealthy and denied to the poor. Second, the King may not deny justice — he may not refuse to hear a subject’s claim. The courts were to remain open to every freeman seeking a remedy for a wrong. Third, the King may not delay justice — he may not indefinitely postpone judgment, because a remedy deferred is effectively denied. Taken together, Clause 40 established a principle that would echo across the next eight centuries: the right to a judicial remedy is not a privilege granted by the sovereign at his pleasure, but a guarantee owed by the sovereign to every subject. The sovereign does not bestow it. The sovereign is bound by it. These principles flowed directly into English common law. Sir Edward Coke, in his Second Institutes, read Clause 40 as the foundation of the subject’s right to the King’s courts, and the principle was settled in English constitutional understanding by the time the American colonies were founded. The colonists carried it across the Atlantic as part of the inheritance of English liberty, and they invoked it against the Crown in the years before independence. By the time of the founding, the right of access to the courts was not an aspiration. It was a fixed star in the constitutional firmament — assumed, relied upon, and understood as fundamental to the very concept of ordered liberty.
II. The Right Is Woven Into the Founding Itself
The Founders did not merely inherit the right of access to the courts. They ratified it. On June 27, 1788, the Virginia Ratifying Convention, in the act of proposing amendments to the federal Constitution, declared that every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property or character. He ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay, and that all establishments or regulations contravening these rights, are oppressive and unjust.4
Read that language beside Clause 40, and the lineage is unmistakable. Without sale, without denial, without delay — the precise triad of Magna Carta, carried forward five and a half centuries and transplanted into the American constitutional project at its founding moment. The Virginia delegation was not improvising. It was consciously invoking the oldest guarantee in the Anglo-American legal tradition and binding the new nation to it.
The right of access to the courts for a judicial remedy when injured predates the Constitution itself, and it frames the foundation upon which the Constitution rests. The Constitution did not create the right of access to the courts. The Constitution presupposed it — and embedded it within the Privileges and Immunities Clause of Article IV.
III. The Supreme Court Has Recognized the Right and Grounded It in the Constitution
The Supreme Court has long recognized the right of access to the courts and has grounded it in the deepest structural guarantees of the constitutional order. In Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148 (1907), the Court held that access to the courts is “the alternative of force,” “the right conservative of all other rights,” and “one of the highest and most essential privileges of citizenship.” The Court located the right in the Privileges and Immunities Clause of Article IV — among the rights that belong to citizens of the United States by virtue of their citizenship and that no State may abridge. The right “conservative” to all others means that the right to access the courts is the right that secures all other rights. After all, the right to free speech is no right at all if one cannot access the courts to secure it when deprived of it by a state actor.
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4 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 327 (2d ed. 1836).
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The grounding has only deepened in the century since Chambers. In McDonald v. City of Chicago, 561 U.S. 742, 819–50 (2010), Justice Thomas, concurring, explained that the Privileges or Immunities Clause protects rights understood at ratification as fundamental to citizenship, drawing on Corfield v. Coryell, 6 F. Cas. 546, 551–52 (E.D. Pa. 1823), which expressly included among those fundamental privileges the right of access to the State courts for a judicial remedy. The right of access was understood at the time of the Fourteenth Amendment’s ratification to be one of the privileges of citizenship that the Amendment was designed to protect against State abridgment
In Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002), the Court cataloged the multiple constitutional sources on which the right of access has been grounded: the Article IV Privileges and Immunities Clause, the First Amendment’s Petition Clause, the Fifth Amendment’s Due Process Clause, and the Fourteenth Amendment’s Due Process Clause. The right is not the creature of any single provision. It is woven through the constitutional fabric, anchored at multiple points, and recognized — at a minimum — as a fundamental right under the Fourteenth Amendment. The Supreme Court has issued opinions in dozens of cases over the last century addressing the right of access, including governmental interference with that right, cost barriers, notification of hearings, the Petition Clause, prisoner access, and public access to hearings. Each opinion reaches the same result: governments cannot establish a barrier to access to courts of law under any circumstances.
The right to a judicial remedy is, in short, inviolable. It inheres in the privilege of citizenship under the federal Constitution. It is, at minimum, a fundamental right secured by the Fourteenth Amendment. And it is the right upon which every other right guaranteed to this Nation depends — for a right without a forum to vindicate it is no right at all.
No President, Governor, mayor, fire chief, university dean — no political actor of any rank or office — may condition access to a licensed profession, public employment, education, healthcare, or welfare assistance on the forfeiture of that right. The Constitution does not permit it. A century of this Court's precedent forbids it. And no official, however empowered, sits above either.
In Curtis v. Inslee,5 the case upon which the Boysen panel relied for dismissal, held that plaintiffs’ “substantive due process claim regarding the PREP Act’s grant of immunity…fails.”6 The claim is that when a state mandates the use of a PREP Act-covered countermeasure, it is mandating that citizens prospectively surrender their right to a judicial remedy if injured by the mandated drug—an unconstitutional condition
When the State conditions a public benefit on the individual’s submission to a PREP Act– covered countermeasure, the State extracts, by operation of law, a prospective waiver of the right to a judicial remedy if injured by the mandated drug. The PREP Act, by its terms, extinguishes any State or federal cause of action for injuries caused by a covered countermeasure, subject only to the willful misconduct exception. 42 U.S.C. § 247d-6d(a), (d). The mandate and the waiver are inseparable. The individual may not comply with the former without suffering the latter. The State has thus achieved, through the leverage of economic survival, what it may never achieve by direct command: the extinguishment of a constitutional guarantee.
The Ninth Circuit, under Curtis and Boysen, on nothing more than personal preference untethered from constitutional law, would permit a political actor to lawfully require an American to play Russian roulette with their life involving experimental drugs — while the actor shields himself from liability when the chamber lands on a live round — an unspeakable evil. Surely the American Revolution began over far fewer grievances than those facing this nation on its 250th birthday.
IV. A Waiver of a Constitutional Right May Never Be Presumed, and May Never Be Coerced
Because the right of access to the courts is a constitutional guarantee of this magnitude, its surrender is governed by the most demanding standards the Supreme Court imposes on any waiver of any right. A waiver of any constitutional right must be “voluntary, knowing, and intelligently made,” and it must be “an intentional relinquishment or abandonment of a known right or privilege.” D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185–86 (1972); Johnson v. Zerbst, 304 U.S. 458, 464 (1938). It must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Berghuis v. Thompkins, 560 U.S. 370, 382–83 (2010). Courts “do not presume acquiescence in the loss of fundamental rights.” Zerbst, 304 U.S. at 464.
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5 Curtis v. Inslee, No. 24-1869 (9th Cir. Oct. 6, 2025) 6 Id. at 19
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In Janus v. AFSCME, 585 U.S. 878 (2018), the Court reaffirmed that a waiver of a constitutional right must be freely given, shown by clear and compelling evidence, and never presumed. Janus is directly on point and most instructive. The Court there held that public-sector unions could not extract agency fees from nonconsenting employees, because those fees subsidized political speech the employees opposed, and compelling that subsidy amounted to forcing a waiver of First Amendment rights.
Mandating, under threat of losing one’s livelihood, the use of a liability-shielded product under a federal act that waives an individual’s right of access to the courts — without informing the individual that compliance institutes such a waiver — is deceptive, and it is the quintessential definition of coercion. The Supreme Court confronted this structure precisely in Garrity v. New Jersey, 385 U.S. 493 (1967). There, police officers were given a choice: waive the Fifth Amendment privilege against self-incrimination, or lose their jobs. The Court held that the choice was coercion. “Where the choice is ‘between the rock and the whirlpool,’” the Court wrote, “duress is inherent in deciding to ‘waive’ one or the other.” Id. at 498. The Court held that a waiver extracted under that kind of pressure is no waiver at all, because the choice between forfeiting one’s livelihood and surrendering one’s constitutional rights is no free choice.
The leading modern scholarship reaches the same conclusion. Deborah J. La Fetra, senior attorney at the Pacific Legal Foundation, has argued in Miranda for Janus: The Government’s Obligation to Ensure Informed Waiver of Constitutional Rights that compelled waivers of constitutional rights should be governed by the same disclosure requirements the Court imposes under Miranda — that the Government bears an affirmative obligation to ensure that any waiver is knowing and informed, and that such a waiver must be the product of voluntary consent, not coerced by threats of penalty.
V. A State May Not Accomplish Indirectly What It Is Forbidden to Command Directly
The Supreme Court has long held that “what the State may not do directly it may not do indirectly.” Bailey v. Alabama, 219 U.S. 219, 239–44 (1911); Speiser v. Randall, 357 U.S. 513, 518–29 (1958). The principle is not a technicality. It is a structural safeguard against the evasion of constitutional limits, and the Court has guarded it jealously. The foundational statement of the doctrine remains the Court’s warning warning in Frost & Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 593–94 (1926):
If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.
A constitutional order in which rights may be conditioned away, one benefit at a time, is a constitutional order in which rights do not exist as guarantees at all. They exist only as privileges, revocable whenever the State finds them inconvenient. That is why the Supreme Court has been relentless in protecting constitutional rights against governmental coercion.
The Supreme Court has held that a government may not condition a tax exemption on the surrender of free speech. Speiser, 357 U.S. at 518–29. It may not condition unemployment benefits on the surrender of the free exercise of religion. Sherbert v. Verner, 374 U.S. 398, 404 (1963). It may not condition public employment on the surrender of the privilege against self-incrimination. Garrity, 385 U.S. at 497–98. It may not condition public employment on the surrender of academic freedom. Keyishian v. Board of Regents, 385 U.S. 589, 605–06 (1967). It may not condition a benefit the State was free to withhold entirely on the surrender of First Amendment rights. Perry v. Sindermann, 408 U.S. 593, 597 (1972). It may not condition public employment on the surrender of the right of political association. Elrod v. Burns, 427 U.S. 347, 360 (1976). It may not condition a land-use permit on the surrender of property rights. Nollan v. California Coastal Commission, 483 U.S. 825, 837 (1987); Koontz v. St. Johns River Water Management District, 570 U.S. 595, 604–06 (2013). The unifying rule, stated and restated across a century, is that the Government may not do indirectly — through the leverage of conditioned benefits — what the Constitution forbids it to do directly. Speiser, 357 U.S. at 526.
The Court has applied that rule to the conditioned-benefit structure in its purest form. In Lefkowitz v. Turley, 414 U.S. 70, 83 (1973), the Court held that a State may not condition public contracts on a contractor’s waiver of the Fifth Amendment privilege against selfincrimination, enforced through the threat of losing existing contracts and being barred from future ones. That is the structure in essence: a public benefit on one side, a constitutional right on the other, and the State demanding the surrender of the latter as the price of the former. A health-policy mandate that relies exclusively on liabilityshielded products presents the identical structure — with a benefit even more essential, the right to earn a living in one’s chosen profession, and a right even more fundamental, the right of access to the courts, conservative of all other rights.
The scholarly literature is unanimous that public benefits cannot be used to barter away constitutional rights. Kathleen M. Sullivan, in the canonical academic treatment of the doctrine, summarized the rule directly: government “may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether.” Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1415 (1989). Richard A. Epstein has argued that the doctrine functions as a structural limit, preventing the Government from accomplishing, through leverage, what it may not accomplish through command. Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 4 (1988). Mitchell N. Berman has analyzed the doctrine as a baseline-coercion problem, demonstrating that wherever the Government holds the power to inflict an unconstitutional condition, the citizen’s apparent consent is necessarily compromised, because the choice has been engineered by the very party the Constitution constrains. Coercion Without Baselines: Unconstitutional Conditions in Three Dimensions, 90 Geo. L.J. 1 (2001). And Philip Hamburger has argued, most directly, that consent is irrelevant where the underlying condition is itself constitutionally impermissible. Unconstitutional Conditions: The Irrelevance of Consent, 98 Va. L. Rev. 479 (2012).
VII. Jacobson Forbids The Waiver — It Does Not Authorize It
The Ninth Circuit, in Curtis, cited to Jacobson v. Massachusetts, 197 U.S. 11 (1905) as support, though in reality it provided none. The Ninth Circuit relied on Jacobson as its foundational support for the rule that a substantive due process challenge to a mandated covered countermeasure fails — holding that the only inquiry before a court reviewing a State health policy is whether the policy furthers a legitimate State interest. That reading inverts what Jacobson actually holds and invalidates the Supremacy Clause.
The Jacobson Court held that the first inquiry in any constitutional challenge to a state policy is whether the policy intrudes upon the federal Constitution or a field of governance dominated by the federal government. If so, the court must set the policy aside. As the Supreme Court has affirmed, the state's legitimate interests are only those "interests the State has the authority to implement." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 441 (1985).
And here, a federal constitutional guarantee is infringed. State mandates for liability shielded products infringe the Constitution’s guarantee of access to the courts when life, liberty, or property is deprived. Jacobson therefore does not authorize these mandates. Jacobson, correctly read, requires that they be invalidated, as Jacobson instructed when the Supreme Court invalidated state health policies under Railroad Company v. Husen, 95 U.S. 465 (1877) (“It seems hardly necessary to argue at length that unless the statute can be justified as a legitimate exercise of the police power of the state, it is a usurpation of the power vested exclusively in Congress.”) Id. at 469. Under Husen, the state’s health
policy of reducing the spread of the Spanish Fever was vacated by the Supreme Court because the policy infringed upon the Commerce Clause. Under Jacobson, no federal statute or constitutional guarantee was implicated — Congress would not enact the Federal Food, Drug, and Cosmetic Act until 1938, nor the PREP Act until 2005. Under Boysen v. PeaceHealth, valid acts of Congress and the Fourteenth Amendment’s Due Process Clause are implicated—the Ninth Circuit gave legal effect to neither, thereby stripping the nation of rights modern societies have enjoyed since 1215 A.D.
Conclusion Since Congress enacted the National Childhood Vaccine Injury Act (VICP) of 1986, governments have been unconstitutionally mandating involuntary participation in liability-shielded medical products, thereby prospectively stripping the nation of its privilege of citizenship to access constitutional courts for judicial remedy when injured. Congress may provide immunity to a medical product under the VICP or the PREP Act, but once that immunity is lawfully applied, no government can mandate involuntary use of those products as a condition of public benefits, because such mandates achieve indirectly what they can never command directly.7
Until the COVID-19 pandemic, no one had ever presented an argument to an Article III court that a government mandate of liability-shielded products imposed an unconstitutional condition by stripping the right of access to the courts upon injury. Now that the argument has been made, sixteen federal district judges and more than a dozen federal appellate judges have ignored it outright, effectively nullifying the Constitution through silence. Only the Ninth Circuit has directly addressed the claim — and only to declare that there is no fundamental right to refuse a State policy, even one that strips the public of its constitutional guarantees. And so, for the first time in our Nation's history, the fundamental right of access to the courts has been stripped from the Constitution through a backdoor procedural device — effectively amending the Constitution outside the framework Article V requires.
The right of access to the courts descends from Magna Carta. It was ratified at the founding. It is the alternative to force, the right conservative of all other rights, one of the highest and most essential privileges of citizenship. It may not be sold. It may not be denied. It may not be delayed. It may not be presumed away by silence, nor coerced away by the threat of ruin, nor bargained away as the price of a public benefit. It may never be amended out of the Constitution by any actor other than the People themselves.
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7 As detailed in the report to Congress linked in Footnote 1, more than a dozen federal and State courts — including two State supreme courts — have held that the criminal conduct of battery (e.g., secret injections) is shielded from judicial review when the weapon of choice is a product covered by the PREP Act or the VICP. These judges are weaponizing federal acts that can never grant absolute immunity for the criminal act of battery, thereby subjecting the nation to irreparable harm.
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The barons wrested this right from King John in 1215. America's founders gave their blood, their labor, and their fortunes to win independence from the Crown's successors in 1776. Tens of millions of Americans have since worn the uniform, fought in two world wars, and died on the battlefield to ensure that the victory George Washington won would not be lost to new tyrants.
Two hundred fifty years after the founding of this Nation — with no defendant claiming authority to mandate a liability-shielded drug — Ninth Circuit Judges M. Margaret McKeown, Richard A. Paez, and Gabriel P. Sanchez walked onto the battlefield, winked at the State defendants, and affixed the Ninth Circuit's seal to a new order of oppression, empowering political actors to wield public benefits as a weapon of coercion — stripping this Nation of guarantees long secured by eight hundred years of human struggle. Three judges have deputized political actors to act as instruments of oppression on their behalf.8 Millions of lives have been lost in the fight for liberty across the world since King John affixed his seal to the Magna Carta; it only took three corrupt judges to overthrow the most powerful nation in the world.
The United States Solicitor General and the States' attorneys general must make their voices heard in Boysen on behalf of the American people.
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8 Roberts v. Ferguson, pending before the Supreme Court under No. 25-1327, a case dismissed under Curtis, provides a strong argument that states cannot require a waiver of the right of access to the courts as a condition of public benefits.
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