July 4th, Independence Day, is a holiday here in the U.S., celebrating the date the Continental Congress approved the final wording of the Declaration of Independence, which bears the date July 4, 1776.
While the Declaration of Independence speaks of fundamental liberties, those liberties did not become legally enforceable until the ratification of the U.S. Constitution and its first 10 amendments, known as the Bill of Rights. Subsequent amendments bring the total to 27. This brings us, in roundabout way, to Jacobson v. Massachusetts, a case decided in 1905 under Section 1 the 14th Amendment, which prohibits the states from depriving any person of life, liberty, or property without due process of law.
I recently re-read Jacobson v. Massachusetts and was struck by the straightforwardness and simplicity of the majority opinion, written by Justice John M. Harlan II. Amid the din of anti-vaccination rhetoric prevalent today, focusing, as it does, on the individual at the expense of the community, Justice Harlan’s clarity in upholding the government’s duty to protect the public’s health against an individual’s objection to mandatory vaccination is refreshing.
Of course, regular readers of this blog know I am no fan of legislative action when it’s based on pseudoscience, but a good defense of science-based legislation is worth celebrating. My purpose in this short post (it is a holiday, after all) is not a scholarly discussion of constitutional law, or even a full explication of this particular case. Rather it is to highlight particular passages that, in forthright language, push back against anti-vaccination ideology still trotted out over a hundred years later.
First, some background: A Massachusetts law allowed cities to require residents to be vaccinated against smallpox. Cambridge adopted such an ordinance, which allowed some exceptions for which Henning Jacobson did not qualify. Jacobson refused to comply with the requirement and was fined five dollars. The Supreme Judicial Court of Massachusetts ruled that, although the state could not force Jacobson to be vaccinated, he could be fined. He then took the case to the U.S. Supreme Court, claiming the vaccination requirement violated his liberty rights under the Fourteenth Amendment, making an argument, summarized by the Court here, well-known to those familiar with the anti-vaccination playbook.
The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best, and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.
Justice Harlan, writing for the majority, rejected Jacobson’s expansive interpretation of the 14th Amendment, focusing on the common good:
But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. 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. 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.
There was no evidence that Jacobson was medically unfit for the smallpox vaccination, yet he wanted to proffer evidence, which the lower court refused to admit, that he, as a child, had been made sick from a vaccination, and that others had as well. He alleged, again in an argument reminiscent of anti-vaxxers today, that vaccination
“quite often” caused serious and permanent injury to the health of the person vaccinated; that the operation “occasionally” resulted in death; that it was “impossible” to tell “in any particular case” what the results of vaccination would be or whether it would injure the health or result in death; that “quite often,” one’s blood is in a certain condition of impurity when it is not prudent or safe to vaccinate him; that there is no practical test by which to determine “with any degree of certainty” whether one’s blood is in such condition of impurity as to render vaccination necessarily unsafe or dangerous; that vaccine matter is “quite often” impure and dangerous to be used, but whether impure or not cannot be ascertained by any known practical test . . . .
The Court rejected this argument as well, because to agree with it,
would practically strip the legislative department of its function to care for the public health and the public safety when endangered by epidemics of disease. Such an answer would mean that compulsory vaccination could not, in any conceivable case, be legally enforced in a community, even at the command of the legislature, however widespread the epidemic of smallpox, and however deep and universal was the belief of the community and of its medical advisers, that a system of general vaccination was vital to the safety of all.
The Court did recognize that “if it be apparent or can be shown with reasonable certainty that [an adult] 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,” mandatory vaccination could violate his constitutional rights. [At the time, Massachusetts recognized a medical exemption for children; it later enacted one for adults.] However, because no such case was before the Court, the ruling of the lower court was affirmed and Jacobson’s five dollar fine stood.
Both medical science and constitutional jurisprudence have evolved since 1905 — you can find a good discussion of that evolution here. But Jacobson v. Massachusetts is still good law and the principle on which it rests, that mandatory vaccination laws are a legitimate exercise of the state’s power to protect the public health and safety (known as the “police power”), still forms the basis of court decisions upholding those laws in modern jurisprudence.
