The Surprisingly Strong Supreme Court Precedent Supporting Vaccine Mandates

“There are manifold restraints to which every person is necessarily subject for the common good,” read the majority opinion. “On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.”

Jacobson’s claim was essentially the same as that taken for granted by vaccine skeptics today: That they have the personal liberty under the U.S. Constitution to decide for themselves whether to take the shot. Backed by a group called The Anti-Vaccination Society, Jacobson made a formidable case, incorporating many of the same arguments about freedom from government interference that are ricocheting around cable TV this summer, and mouthed by politicians. Donald Trump, after recommending at a rally on Aug. 21 that his supporters get vaccinated, quickly added after a smattering of boos: “But you do have your freedoms you have to keep. You have to maintain that.”

The question of whether those freedoms include refusing a legally mandated Covid-19 vaccine, should any government implement such a requirement today, has yet to come before the Supreme Court — or any court. But in the event that it does, the 116-year-old case brought by Henning Jacobson would be the standing legal precedent. In deciding whether the rules that the Jacobson decision rendered for smallpox would apply to Covid-19, today’s court would need to reckon with a different medical landscape, as well as the freighted politics of the moment. The justices would also find themselves grappling with the legacy of the man who wrote the opinion, Justice John Marshall Harlan.

Known for his highly principled dissents, and most famously for taking a lonely stand in favor of Black rights in the late 19th Century, Harlan in this case wrote for a clear majority of the court. He concluded: “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”

That last is a classic Harlan sentence, cutting through all the nuances and caveats to reach an essential point of justice. His balancing of the rights of vaccine skeptics against the rights of the community seems especially compelling at a time when those who refuse to get vaccinated are fueling fresh outbreaks and inviting the creation of variants that pierce the defenses of those who are fully immunized. And his thinking could have special resonance: While many of his colleagues have faded into history, today’s justices, conservatives and liberals alike, profess themselves to be deep admirers of Harlan.

I studied the court’s 1905 decision in Jacobson v. Massachusetts, along with the briefs of the lawyers who argued the case, because of my recent book about Harlan, The Great Dissenter. As the title suggests, the book focuses on Harlan’s dissents, not his majority opinions. But what struck me wasn’t just the contrasting ways that Harlan’s principles played out in majority opinions and dissents, but the extent to which the Jacobson case was so eerily on-point to current debates about Covid-19.

Could Harlan’s notion of competing freedoms transform the still-simmering debate over vaccine mandates, which now seem more possible with full FDA approval of the various vaccines either in place or on the horizon? Certainly, he offers a powerful rebuttal to those who feel that personal liberty is only in play when someone is compelled to be vaccinated: The Jacobson holding suggests that other people, from co-workers to classmates to neighbors, have a corresponding liberty interest in being free from infectious disease. Like those who inhale passive smoke, they, too, are affected by a decision that others deem a matter of personal choice.

And the court’s ruling makes clear that a community in danger has every right to protect itself.

For the people of Cambridge, Massachusetts — then, as now, a bastion of academic liberalism — the great plague of the first decade of the 20th Century was smallpox, an infectious disease so virulent that about a third of those who caught it would eventually succumb. The main source of protection was vaccines, which were safely applied in most cases but sickened some people.

Henning Jacobson, apparently, was one.

The Evening Herald of Fall River, Massachusetts, painted his medical picture this way on Nov. 17, 1904: “He was born in Sweden and until he was vaccinated in infancy was in excellent health. Six days after the vaccine he was troubled with a hot burning rash which continued for years. He needed constant and efficient care, such as being wrapped in hot sheets, etc.” As an adult, the Herald reported, Jacobson had urged his 18-year-old son to avoid vaccination, but the boy was threatened with losing his job if he didn’t protect himself against smallpox, so he took the shot. He, too, had painful side effects, leaving his arm in a sling for six months.

The fact that both father and son had suffered bad reactions no doubt led Jacobson to assert in his court papers that “impurity of the blood” can trigger injury and even death in certain people if they choose to take the smallpox vaccine. That was one of numerous medical claims that Jacobson presented to the court. All would sound familiar to today’s vaccine skeptics, ranging from reasonable-seeming contentions like “the result of vaccination cannot be foretold in any case,” to balder assertions such as “vaccination causes loathsome diseases,” to statements that may be technically true but carry more than a tinge of conspiracy, including “vaccination does not prevent smallpox but spreads the disease.”

Jacobson vowed to prove the truth of all those statements and more, but the courts wouldn’t have it.

“The only ‘competent evidence’ that could be presented to the court to prove these propositions was the testimony of experts, giving their opinions,” concluded the Supreme Judicial Court of Massachusetts, which Harlan quoted in the Supreme Court decision. “Assuming that medical experts could have been found who would have testified in support of these propositions, [the court] would have been obliged to consider the evidence in connection with facts of common knowledge, which the court will always regard in passing upon the constitutionality of a statute.”

Those facts, the court stated, include “that for nearly a century, most of the members of the medical profession have regarded vaccination, repeated after intervals, as a preventive of smallpox; that, while they have recognized the possibility of injury to an individual from carelessness in the performance of it, or even, in a conceivable case, without carelessness, they generally have considered the risk of such an injury too small to be seriously weighed as against the benefits coming from the discreet and proper use of the preventive.”


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