Why have state and local governments allowed a summer surge of COVID-19 to happen when they have safe and effective vaccines at their disposal -- and the legal authority to enforce their use? That question arises from a Washington Post article under the headline: "Require the vaccine: It's time to stop coddling the reckless." Writes Ruth Marcus:
It’s
reasonable, it’s fair, and it’s legal to step up the pressure on the
reckless noncompliant. By reckless, I mean to exclude some people: If
you have a medical condition that counsels against vaccination, you are
excused.
If
you have a good-faith religious objection, same — although I have a
hard time imagining what that might be beyond adherents of Christian
Science, or what religion does not advocate some version of the Golden
Rule. Yes, some fetal cell lines were used in the development or testing
of the vaccines, but the Vatican has declared that it is “morally acceptable” to take the vaccines, and that reasoning seems solid.
Federal
judges have already rejected challenges to vaccine mandates by
hospitals and public universities. The Equal Employment Opportunity
Commission has made it clear
that federal anti-discrimination laws don’t prevent private employers
from requiring proof of vaccination. The Justice Department’s Office of
Legal Counsel concluded that federal law “does not prohibit public or
private entities from imposing vaccination requirements” for vaccines
even at the emergency-use stage.
A
century ago, balancing the tension between individual liberties and
public safety, the Supreme Court upheld the ability of state and local
governments to enforce mandatory vaccination laws. “In every
well-ordered society charged with the duty of conserving the safety of
its members,” wrote Justice John Marshall Harlan,
“the rights of the individual … 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.”
Then
the great danger was a smallpox epidemic. Today it is a global covid-19
pandemic. The “safety of the general public” demands a “reasonable”
response today, just as it did in 1905.
The SCOTUS case in question was styled Jacobson v. Massachusetts, 197 U.S. 11 (1905). In it, a Massachusetts resident named Henning Jacobson challenged as unconstitutional a state law that made smallpox vaccinations mandatory. Jacobson claimed that, back in his native Sweden, he had suffered a bad reaction to a vaccine as an infant, struggling for years with an angry rash.
Roughly 115 years after it was issued, the Jacobson case is back in the news because of President Joe Biden's vaccine mandates last week related to the COVID-19 pandemic. The nation's highest court rejected Jacobson's argument that he was protected by the U.S. Constitution's Due Process Clause, finding the state's police power gave it the authority to enforce such a statute. That likely means Biden's COVID orders rest on solid legal footing. From the opinion (Most citations omitted for ease of reading):
The authority of the State to enact this statute is to be
referred to what is commonly called the police power — a power which
the State did not surrender when becoming a member of the Union under
the Constitution. Although this court has refrained from any attempt to
define the limits of that power, yet it has distinctly recognized the
authority of a State to enact quarantine laws and "health laws of every
description;" indeed, all laws that relate to matters completely within
its territory and which do not by their necessary operation affect the
people of other States. 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.
Were any of Jacobson's constitutional rights trampled by the state law? No was the answer from the high court:
We come, then, to inquire whether any right given, or secured by the Constitution, is invaded by the statute as interpreted
by the state court. 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. 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. This court has more than once
recognized it as a fundamental principle that "persons and property are
subjected to all kinds of restraints and burdens, in order to secure the
general comfort, health, and prosperity of the State; of the perfect
right of the legislature to do which no question ever was, or upon
acknowledged general principles ever can be made, so far as natural
persons are concerned." Railroad Co. v. Husen, 95 U.S. 465, 471,
we said: "The possession and enjoyment of all rights are subject to
such reasonable conditions as may be deemed by the governing authority
of the country essential to the safety, health, peace, good order and
morals of the community. Even liberty
itself, the greatest of all rights, is not unrestricted license to act
according to one's own will. It is only freedom from restraint under
conditions essential to the equal enjoyment of the same right by others.
It is then liberty regulated by law." In the constitution of
Massachusetts adopted in 1780 it was laid down as a fundamental
principle of the social compact that the whole people covenants with
each citizen, and each citizen with the whole people, that all shall be
governed by certain laws for "the common good," and that government is
instituted "for the common good, for the protection, safety, prosperity
and happiness of the people, and not for the profit, honor or private
interests of any one man, family or class of men." The good and welfare
of the Commonwealth, of which the legislature is primarily the judge, is
the basis on which the police power rests in Massachusetts.
Was the state law onerous? Again, SCOTUS' answer was no:
Applying these principles to the present case, it is to be observed
that the legislature of Massachusetts required the 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.
The authority to determine for all what ought to be done in such an
emergency must have been lodged somewhere or in some body; and surely it
was appropriate for the legislature to refer that question, in the
first instance, to a Board of Health, composed of persons residing in
the locality affected and appointed, presumably, because of their
fitness to determine such questions. To invest such a body with
authority over such matters was not an unusual nor an unreasonable or
arbitrary requirement. 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. If such was
the situation — and nothing is asserted or appears in the record to the
contrary — if we are to attach any value whatever to the knowledge
which, it is safe to affirm, is common to all civilized peoples touching
smallpox and the methods most usually employed to eradicate that
disease, it cannot be adjudged that the present regulation of the Board
of Health was not necessary in order to protect the public health and
secure the public safety. Smallpox being prevalent and increasing at
Cambridge, the court would usurp the functions of another branch of
government if it adjudged, as 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. Wisconsin &c. R.R. Co. v. Jacobson, 179 U.S. 287, 301; Freund's Police Power, § 63 et seq. In Railroad Company v. Husen, 95 U.S. 465, 471-473,
this court recognized the right of a State to pass sanitary laws, laws
for the protection of life, liberty, health or property within its
limits, laws to prevent persons and animals suffering under contagious
or infectious diseases, or convicts, from coming within its borders. But
as the laws there involved went beyond the necessity of the case and
under the guise of exerting a police power invaded the domain of Federal
authority and violated rights secured by the Constitution, this court
deemed it to be its duty to hold such laws invalid. If the mode adopted
by the Commonwealth of Massachusetts for the protection of its local
communities against smallpox proved to be distressing, inconvenient or
objectionable to some — if nothing more could be reasonably
affirmed of the statute in question — the answer is that it was the
duty of the constituted authorities primarily to keep in view the
welfare, comfort and safety of the many, and not permit the interests of
the many to be subordinated to the wishes or convenience of the few.
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.
An American citizen, arriving at an American port on a vessel in which,
during the voyage, there had been cases of yellow fever or Asiatic
cholera, although apparently free from disease himself, may yet, in some
circumstances, be held in quarantine against his will on board of such
vessel or in a quarantine station, until it be ascertained by
inspection, conducted with due diligence, that the danger of the spread
of the disease among the community at large has disappeared. The liberty
secured by the Fourteenth Amendment, this court has said, consists, in
part, in the right of a person "to live and work where he will," Allgeyer v. Louisiana, 165 U.S. 578;
and yet 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.
In essence, SCOTUS found that Massachusetts had the authority to protect public health:
Looking at the propositions embodied in the defendant's rejected
offers of proof it is clear that they are more formidable by their
number than by their inherent value. Those offers in the main seem to
have had no purpose except to state the general theory of those of the
medical profession who attach little or no value to vaccination as a
means of preventing the spread of smallpox or who think that vaccination
causes other diseases of the body. What everybody knows the court must
know, and therefore the state court judicially knew, as this court
knows, that an opposite theory accords with the common belief and is
maintained by high medical authority. We must assume that when the
statute in question was passed, the legislature of Massachusetts was not
unaware of these opposing theories, and was compelled, of necessity, to
choose between them. It was not compelled to commit a matter involving
the public health and safety to the final decision of a court or jury.
It is no part of the function of a court or a jury to determine which
one of two modes was likely to be the most effective for the protection
of the public against disease. That was for the legislative department
to determine in the light of all the information it had or could obtain.
It could not properly abdicate its function to guard the public health
and safety. The state legislature proceeded upon the theory which
recognized vaccination as at least an effective if not the best known
way in which to meet and suppress the
evils of a smallpox epidemic that imperiled an entire population. Upon
what sound principles as to the relations existing between the
different departments of government can the court review this action of
the legislature? If there is any such power in the judiciary to review
legislative action in respect of a matter affecting the general welfare,
it can only be when that which the legislature has done comes within
the rule that if a statute purporting to have been enacted to protect
the public health, the public morals or the public safety, has no real
or substantial relation to those objects, or is, beyond all question, a
plain, palpable invasion of rights secured by the fundamental law, it is
the duty of the courts to so adjudge, and thereby give effect to the
Constitution." Mugler v. Kansas, 123 U.S. 623, 661.
Whatever may be thought of the expediency of this statute, it cannot
be affirmed to be, beyond question, in palpable conflict with the
Constitution. Nor, in view of the methods employed to stamp out the
disease of smallpox, can anyone confidently assert that the means
prescribed by the State to that end has no real or substantial relation
to the protection of the public health and the public safety. Such an
assertion would not be consistent with the experience of this and other
countries whose authorities have dealt with the disease of smallpox. And the principle of vaccination as a means to
prevent the spread of smallpox has been enforced in many States by
statutes making the vaccination of children a condition of their right
to enter or remain in public schools. Blue v. Beach, 155 Indiana, 121.
Speaking of kids and school, I can remember my mother taking me to the lunchroom at Portland Elementary School in Springfield, MO, to have some kind of shot administered to my arm -- I don't think I even knew what it was for at the time. But I know now it was for smallpox, and even though I don't recall my mom saying it then, I would not have been allowed to attend school without it. It was not controversial in the least, best I could tell; we just did it, no fuss, no muss. Like millions of other Americans, I still have a slight bump on my upper left arm as a reminder of that day:
The latest case upon the subject of which we are aware is Viemeister v. White, President &c.,
decided very recently by the Court of Appeals of New York, and the
opinion in which has not yet appeared in the regular reports. That case
involved the validity of a statute excluding from the public schools all
children who had not been vaccinated. One contention was that the
statute and the regulation adopted in exercise of its provisions was
inconsistent with the rights, privileges and liberties of the citizen.
The contention was overruled, the court saying, among other things:
"Smallpox is known of all to be a dangerous and contagious disease. If
vaccination strongly tends to prevent the transmission or spread of this
disease, it logically follows that children may be refused admission to
the public schools until they have been vaccinated. The appellant
claims that vaccination does not tend to prevent smallpox, but tends to
bring about other diseases, and that it does much harm, with no good.
"It must be conceded that some laymen, both learned and unlearned,
and some physicians of great skill and repute, do not believe that
vaccination is a preventive of smallpox. The common belief, however, is
that it has a decided tendency to prevent the spread of this fearful
disease and to render it less dangerous to those who contract it. While
not accepted by all, it is accepted by the mass of the people, as well
as by most members of the medical profession. It has been general in our
State and in most civilized nations for generations. It is
generally accepted in theory and generally applied in practice, both by
the voluntary action of the people and in obedience to the command of
law. Nearly every State of the Union has statutes to encourage, or
directly or indirectly to require, vaccination, and this is true of most
nations of Europe. . . .
"A common belief, like common knowledge, does not require evidence to
establish its existence, but may be acted upon without proof by the
legislature and the courts. . . .
"The fact that the belief 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. In a free country,
where the government is by the people, through their chosen
representatives, practical legislation admits of no other standard of
action; for what the people believe is for the common welfare must be
accepted as tending to promote the common welfare, whether it does in
fact of not. Any other basis would conflict with the spirit of the
Constitution, and would sanction measures opposed to a republican form
of government. While we do not decide and cannot decide that vaccination
is a preventive of smallpox, we take judicial notice of the fact that
this is the common belief of the people of the State, and with this fact
as a foundation we hold that the statute in question is a health law,
enacted in a reasonable and proper exercise of the police power."
Could Biden's orders be challenged in court? Could that bring Jacobson back into the news as the guiding precedent on matters of vaccines? The answer to both questions is yes. But as we reported in a recent post, legal experts seem to think Biden's orders stand on firm legal ground:
From a Boston Globe piece about U.S. Supreme Court precedent and the Biden mandates:
In 1905, the Supreme Court ruled 7-2 in Jacobson v. Massachusetts that
public health measures, like vaccination, imposed by states are
constitutional because, in essence, living in society comes with
restrictions, including those pertaining to public health.
At
the heart of the case is the intersection between public health and a
person’s individual rights. The court ruled that while the state doesn’t
have absolute power to limit individual rights, it can impose
reasonable limits when it comes to public health.
Now in the
wake of the sweeping federal vaccine mandates President Biden announced
on Thursday and claims by some Republican lawmakers that the rules are
unconstitutional, experts say legal challenges to the measure are likely
to be unsuccessful because of the strong precedent established by the
Jacobson case.
“I
think the Biden administration can clearly point to the fact that there
is an ability of governmental entities to mandate vaccination,” Brian
Dean Abramson, an adjunct professor of vaccination law at Florida
International University, said of the Jacobson case.
