Covid, smallpox and stare decisis

Can the government mandate vaccines? President Biden announced that people at companies with more than 100 employees will have to either receive the Covid vaccine or do weekly testing. Of course, this will be tested in the courts and may wind up in the U.S. Supreme Court. We have been here before. Smallpox was killing Americans at the beginning of the 20th century. The smallpox vaccine is generally credited to Dr. Jenner in 1796. Many people in the United States welcomed the vaccine and could not wait to get it. And there were people who were afraid or suspicious of the vaccine and did not want to take it. The issue for society was did the rights of the people who did not want to take the vaccine trump the health of the general population that relied on as many persons as possible taking the vaccine in order to reach herd immunity. Sound familiar? This issue was fought out in the courts and went to the U.S. Supreme Court in a case from Massachusetts called Jacobson v. Massachusetts.

In 1902, the Board of Health in Cambridge stated the following: "Whereas, smallpox has been prevalent to some extent in the city of Cambridge and still continues to increase; and whereas it is necessary for the speedy extermination of the disease that all persons not protected by vaccination should be vaccinated, and whereas, in the opinion of the board, the public health and safety require the vaccination or revaccination of all the inhabitants of Cambridge; be it ordered, that all the inhabitants of the city who have not been successfully vaccinated since March 1, 1897, be vaccinated or revaccinated." Cambridge Pastor Hennings Jacobson refused to be vaccinated, and his case made it up through the court system. The case was brought to the U.S. Supreme Court at the end of 1904. The ruling came down in February 1905.

In a 7 to 2 decision, the summary of the opinion was that “the Court upheld the authority of states to enforce compulsory vaccination laws. The Court's decision articulated the view that individual liberty is not absolute and is subject to the police power of the state.”

I have taken the liberty to quote from the majority opinion in this landmark case:

·??It is the case of an adult [Mr. Jacobson] who, for aught that appears, was himself in perfect health and a fit subject of vaccination, and yet, while remaining in the community, refused to obey the statute and the regulation adopted in execution of its provisions for the protection of the public health and the public safety, confessedly endangered by the presence of a dangerous disease.

?·??The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.

?·??Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It is to be observed that, when the regulation in question was adopted, smallpox, according to the recitals in the regulation adopted by the Board of Health, was prevalent to some extent in the city of Cambridge, and the disease was increasing.

?·??There 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. But it is equally true 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.

?·??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 [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others.

·??He may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense. It is not, therefore, true that the power of the public to guard itself against imminent danger depends in every case involving the control of one's body upon his willingness to submit to reasonable regulations established by the constituted authorities, under the sanction of the State, for the purpose of protecting the public collectively against such danger.

·??The fact that the belief [in smallpox vaccination] is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive, for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.

?·??We are not prepared to hold that a minority, residing or remaining in any city or town where smallpox is prevalent, and enjoying the general protection afforded by an organized local government, may thus defy the will of its constituted authorities, acting in good faith for all, under the legislative sanction of the State.

Mr. Jacobson was fined $5 for not complying with the vaccine mandate. His fine was upheld by the U.S. Supreme Court thus codifying the legal principle that the government in a public health emergency has the right to mandate vaccination. The legal principle of stare decisis states that courts will in general look to former decisions that have already ruled on a matter. We shall see how our courts interpret the law now 116 years later…