Did the Supreme Court Really Say Vaccine Mandates Are A-OK Like 100 Years Ago?
Answer: Kinda-sorta, but not really, but still kinda-sorta.
The case that everyone seems to rely on to say that “the Supreme Court has already said vaccine mandates are constitutional” is Jacobson v. Massachusetts, 197 US 11 (1905). I encourage you to read the whole case, but I will break it down in a reasonably digestible way.
THE SHORT ANSWER
In short, the US Constitution will not restrict a state’s ability to make laws that are reasonably related to legitimate government purposes.
The Supreme Court decided it would not interfere with the specific vaccine mandate at issue in the Jacobson case because (a) smallpox was bad, (b) the smallpox vaccine was widely accepted as safe and effective and had been in use for about a century, and (c) the vaccine mandate was reasonably related to the legitimate government purpose of protecting the health and safety of its citizens. (Justice Neil Gorsuch recently implied in Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ___, 141 S. Ct. 63 (2020) that the nature of the “mandate” in Jacobson was relevant, being simply a $5 fine, or, as Gorsuch noted, about $140 in today’s money, and provided for exemptions, in noting that the mandate “easily survived rational basis review.”)
The Jacobson Court did note, however, that not all legislative actions will avoid judicial interference. Indeed, it noted that legislative power “may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression,” and also indicated that if an individual could show that he or she was likely to experience a dangerous adverse consequence, that the court would infer that the legislature intended an exemption to be built into the law in order to avoid an oppressive or absurd application.
The historical context of the Jacobson case must be remembered when analyzing modern-day Covid (are we over Covid and on to monkeypox, now?) vaccine mandates, and, while the US Constitution places very few limits on state legislatures’ power to protect health and safety, there are, in fact, limits. The liberty secured by the Constitution will trump oppressive and unreasonable legislative measures unmoored from legitimate government objectives.
(Normal people can stop reading here. Nerds who want to punish themselves with the nitty-gritty details can read on.)
A LONGER BREAKDOWN
WHAT WAS THE STATUTE?
[T]he 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.”
WHAT WERE THE ARGUMENTS MADE AGAINST IT / QUESTIONS PRESENTED?
(Note the similarity of arguments made recently regarding Covid vaccines).
“Is the statute, so construed, therefore, inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the State?”
* * *
“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.”
* * *
“The defendant offered to prove 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; that the defendant refused to submit to vaccination for the reason that he had, "when a child," been caused great and extreme suffering for a long period by a disease produced by vaccination; and that he had witnessed a similar result of vaccination not only in the case of his son, but in the cases of others.”
* * *
“We come, then, to inquire whether any right given, or secured by the Constitution, is invaded by the statute”
HOW DID THE COURT RESPOND?
“Was defendant exempted from the operation of the statute simply because of his dread of the same evil results experienced by him when a child and had observed in the cases of his son and other children? Could he reasonably claim such an exemption because "quite often" or "occasionally" injury had resulted from vaccination, or because it was impossible, in the opinion of some, by any practical test, to determine with absolute certainty whether a particular person could be safely vaccinated?”
* * *
“It seems to the court that an affirmative answer to these questions 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.“
WHAT ARE THE POWERS OF THE STATE TO LEGISLATE?
“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.”
* * *
“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.”
DOES THE CONSTITUTION IMPOSE ANY RESTRAINTS ON THAT POWER?
The Supreme Court recalled that in the case of Railroad Company v. Husen, 95 U.S. 465 (1878):
“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”
Back to Jacobson:
“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.”
* * *
“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; Minnesota v. Barber, 136 U.S. 313, 320; Atkin v. Kansas, 191 U.S. 207, 223.”
* * *
“Before closing this opinion we deem it appropriate, in order to prevent misapprehension as to our views, to observe — perhaps to repeat a thought already sufficiently expressed, namely — that the police power of a State, whether exercised by the legislature, or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.”
* * *
“It is easy, for instance, to suppose the case of an adult who is embraced by the mere words of the act, but yet to subject whom to vaccination in a particular condition of his health or body, would be cruel and inhuman in the last degree. We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it was so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned. "All laws," this court has said, "should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression or absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of that character. The reason of the law in such cases should prevail over its letter."
* * *
“we are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he 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”
THE SUPREME COURT UPHELD THE STATUTE, BUT WHY?
“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.“
* * *
“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.”
COMMON KNOWLEDGE THAT SMALLPOX IS BAD AND THAT THE SMALLPOX VAX IS SAFE AND EFFECTIVE BASED ON 100 YEARS OF USE AND EXPERIENCE
“What everybody knows the court must know …. 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 imperilled an entire population.”
* * *
“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”
* * *
“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; and that not only the medical profession and the people generally have for a long time entertained these opinions”
* * *
“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. . . .”
* * *
“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”
* * *
“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”
SO, WHAT IS THE TAKEAWAY?
Jacobson is not a blanket approval of all vaccine mandates for all diseases at all times. This case dealt with a smallpox vaccine that had been in use “for generations,” “for nearly a century.”
Covid vaccines have obviously only been in use for about two years, not 100 years.
Moreover, at least according to this VOX article, “O.G.” Covid has an R value of 2-3 (maybe 4 with delta), while Smallpox was twice as transmissible with a R value of 5-7, and the case fatality rate of Covid is about 1.5%, whereas Smallpox was 30%.
“Epidemiologists have estimated that the coronavirus has a “basic reproduction number” between 2 and 3, meaning that when people aren’t taking precautions and practicing social distancing, each infection leads to roughly two to three other people getting infected. (The basic reproduction number is often rendered “R.”) New variants push that R to about 4. Now imagine if it were even more infectious — if the number of people each infection caused were closer to between five and seven. Then there’s the fatality rate. Currently, the coronavirus kills around 0.5 percent of the people it infects. Instead, imagine that it killed 30 percent — and that it would take centuries, instead of months, to develop a vaccine against it.
That’s smallpox.”
While omicron has a higher R value than delta, its fatality rate is substantially lower (one can only assume that is due to a combination effect of natural immunity, vaccine induced immunity, and the overall reduced mortality of the omicron variant/s).
Long story short: Jacobson should not be relied upon to claim that the Supreme Court has already settled the question that all vaccine mandates have already passed constitutional muster. There are limits to the government’s power, which has to be exercised in a way that is rationally related to legitimate objectives. Covid is a different animal (ok, virus) than smallpox, and the Covid vaccine does not have the same provenance as the smallpox vaccine had, even 100 years ago. That said, the rational relationship test is a very easy one to pass, and courts are generally loathe to interfere with the will of the people as expressed through democratic legislation.