By George Wentz, Davillier Law Group and Leslie Manookian, President of HFDF
The seminal case on mandatory vaccinations is Jacobson v. Massachusetts, 197 U.S. 11 (1905). In Jacobson, the U.S. Supreme Court upheld the conviction of Reverend Jacobson of Cambridge under a Massachusetts statute requiring “inhabitants of a city or town to be vaccinated only when, in the opinion of the Board of Health, that was necessary for the public health or the public safety”. 197 U.S. at 27.[i] The Court stated that:
According to settled principles, the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. It is equally true that the State may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. The mode or manner in which those results are to be accomplished is within the discretion of the State, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a State, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States or infringe any right granted or secured by that instrument. A local enactment or regulation, even if based on the acknowledged police powers of a State, must always yield in case of conflict with the exercise by the General Government of any power it possesses under the Constitution, or with any right which that instrument gives or secures. 197 U.S. at 25 (citations omitted).
Reverend Jacobson argued 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.” The Court rejected this argument based upon inherent individual liberty, stating that:
[T]he 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.
Jacobson thus framed the question on the basis of two fundamental and thorny issues in U.S. Constitutional law: Federalism (where do we draw the line between the power of a state and the power of the federal government) and the Social Compact (where do we draw the line between the rights of the individual and the rights of the community). The Court ruled that the Massachusetts statute was not contrary to any federal authority, and that Jacobson’s rights had to yield to the rights of the community. But it did so on the facts of the case before it.
- The Court noted that the legislature had allowed local boards of health to determine whether a vaccine was required. The edict was not state-wide, but was instituted at the local level based on facts as determined by members of the board of health living in the local community.
- The case involved the extremely deadly disease of smallpox, a disease with a fatality rate of 30-40%. The Court reasoned that “in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” 197 U.S. at 30 (emphasis added).
- Despite the acknowledged threat of smallpox, however, the Court specifically reserved the right to intervene on the side of individual rights in a future case if the facts warranted it.
Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as a matter of law, that the mode adopted under the sanction of the State, to protect the people at large was arbitrary and not justified by the necessities of the case. We say necessities of the case because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. 197 U.S. at 28 (emphasis added).
- The Court went on to acknowledge that “[t]here is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will.” 197 U.S. at 29.
The Court was careful in its language. Therefore, it is important to understand what Jacobson does not stand for.
First, contrary to recent public statements by Professor Alan Dershowitz, the case does not stand for the proposition that “the state has the power to literally take you to a doctor’s office and plunge a needle into your arm.” To the contrary, what the case demonstrates is that a person refusing to accept a vaccine may be convicted and pay a penalty. Jacobson was never vaccinated, which was why he was convicted.
Second, the case does not stand for the proposition that any statewide edict mandating vaccinations is valid. It instead stands for the proposition that a conviction for violating a locally promulgated ordinance mandating vaccinations under “pressure of great dangers” and under “reasonable regulations” may be upheld. Absent the pressure of great dangers or where regulations may be unreasonable, the Court specifically reserved the right to step in and strike down the law. Thus, the Court balanced the interests of the state in reasonably protecting its citizens from great danger against the individual liberty interest asserted by Jacobson, and under the circumstances presented, sided with the perceived interests of the common good against the liberty interest of the individual.
Third, Jacobson has nothing whatsoever to do with whether the federal government has the power to mandate a national forced vaccination program. Indeed, the case upheld an ordinance issued on the most local of levels, that of a local Board of Health. The validity of a national forced vaccination program is another question altogether, and would be a case of first impression by the Court.
What Jacobson said,[ii] based on the scientific, moral, and ethical understanding of vaccinations and forced medicine extant in 1905, is that the police powers of state governments include the power to delegate to municipal governments the right to mandate vaccinations where, under a balancing test, the pressure of great dangers overrides individual liberty interests, and the regulation is reasonable.
Jacobson preceded the Court’s adoption of a substantive due process analysis under the 14th Amendment. Those cases have added judicial gloss to the Jacobson opinion that is relevant to challenging a mandatory vaccination for COVID-19 but which we will not address herein.
It goes without saying that much has changed since Jacobson in 1905. There was poor, if any, understanding of the harm caused by vaccinations as this decades before the National Childhood Injury Act of 1986[iii] was signed into law by President Ronald Reagan, recognizing that vaccines injure and kill some recipients and thereby adding much needed color to any discussion of mandated vaccinations.
Jacobson also predated the horrors of medical experimentation conducted under the Nazis of which the world only became aware after WWII during the Nuremberg Trials which led to the adoption of the Nuremberg Code. Among other requirements, the Nuremberg Code[iv] demands,
“The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.”
International Treaties agreed since Nuremberg have only reinforced the ethical principle which underlies the practice of ethical medicine, namely voluntary informed consent. The Declaration of Helsinki by the World Medical Association in 1964 provides that human subjects “must be volunteers and informed participants in the research project.” In 2005, the General Conference of UNESCO adopted the Universal Declaration on Bioethics and Human Rights[v] further raising the bar for the practice of ethical medicine by stating that, “Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information.”
While Jacobson is very clear that state action in relation to medical mandates must surpass a very high bar, the intervening century plus since Jacobson has changed not only the ethical landscape pertaining to the practice of medicine but also our scientific understanding of the risk and harms posed by vaccines. It is clear that Jacobson is due for an update based on the progress made by humanity since 1905.
[i] The statute at issue read: “Boards of health, if in their opinion it is necessary for public health or safety, shall require and enforce the vaccination and revaccination of all the inhabitants of their towns, and shall provide them with the means of free vaccination. Whoever refuses or neglects to comply with such requirement shall forfeit five dollars.”
[ii] In Zucht v. King, 260 U.S. 174, 176 (1922) (holding that vaccination laws do not discriminate against schoolchildren to the exclusion of others similarly situated, i.e., children not enrolled in school) the Court stated:
Long before this suit was instituted, Jacobson v. Massachusetts, 197 U.S. 11, had settled that it is within the police power of a State to provide for compulsory vaccination. That case and others had also settled that a State may, consistently with the Federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative.
Zucht v. King, 260 U.S. 174, 176. See also, Prince v. Massachusetts, 321 U.S. 158 (1944) (holding that the right to practice religion does not include the liberty to jeopardize the wellbeing of minors by violating child labor laws). Most recently, in South Bay United Pentecostal Church v. Newsom, 590 U.S. ___ (2020) the Court relied upon Jacobson to deny an application for injunctive relief with regard to COVID-19 restrictions on in person worship services, stating:
Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).