Vaccine Mandates Have Long Passed Constitutional Muster

Plus ça change, plus c'est la même chose.

Here is a bit of history for those who think that vaccine mandates are an infringement of their liberty. I apologize to you in advance because it will be inconvenient, to conjure Al Gore.

Today, February 20, in 1905, the US Supreme Court ruled in Jacobson v Massachusetts that states have the authority to enforce compulsory vaccination laws, and that remains the law of the land. That Court opined that individual liberties under the Constitution and Bill of Rights are not absolute and can be suspended for a greater good. Jacobson has since been invoked in numerous other court cases as an example of a baseline exercise of collective rights over individual rights.

At the time of the decision Massachusetts was one of 11 states that had compulsory vaccination laws. The State’s law empowered the health departments of cities and towns to enforce mandatory, free vaccinations for adults over 21 years old if it was determined necessary for public health or safety of the community. In 1902, faced with an outbreak of smallpox, Cambridge ordered the immunization, or re-vaccination of all its inhabitants.

A Cambridge pastor, Henning Jacobson, had lived through earlier mandatory vaccinations in his home, Sweden. Although, the vaccination efforts in Sweden successfully eradicated smallpox in that country, Jacobson, had a bad reaction to that vaccine. The vaccine was crude by today’s standards, and often had adverse side effects, but was quite effective. Because of his personal experience, Jacobson refused to be re-vaccinated and was slapped with a $5 fine. He fought the penalty in courts over the next three years all the way to the Supreme Court. He, argued that the law was "unreasonable, arbitrary and oppressive", and that one should not be subjected to the law if he or she objected to vaccination, no matter the reason.

In the end he lost in a 7-2 SCOTUS decision. The Court held 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" and that "[r]eal 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."

In other words, as pastor and prolific author, Tim Keller has written, you cannot have absolute individual freedom and live in community with others at the same time.

Furthermore, the Court held that mandatory vaccinations are neither arbitrary nor oppressive so long as they do not "go so far beyond what was reasonably required for the safety of the public". In Massachusetts, with smallpox being "prevalent and increasing in Cambridge", the regulation in question was "necessary in order to protect the public health and secure the public safety". The Court noted that Jacobson had offered proof that there were many in the medical community who believed that the smallpox vaccine would not stop the spread of the disease and, in fact, may cause other diseases of the body. However, the opinions offered by Jacobson were "more formidable by their number than by their inherent value" and "[w]hat everybody knows, ... [the] opposite theory accords with the common belief and is maintained by high medical authority."

SCOTUS saw through Jacobson's specious medical science arguments, and ignored it in favor of empirical evidence presented by the other side--evidence such as that seen by the eradication of small pox in Sweden.

The Supreme Court reaffirmed its earlier Jacobson decision in Zucht v. King (1922), which held that a school system could refuse admission to a student who failed to receive a required vaccination. Jacobson was also a precedent case in justifying the constitutionality of government face mask orders and stay-at-home orders throughout the COVID-19 pandemic.

The closest COVID-19-related challenge to Jacobson was Does v. Mills, which questioned Maine's vaccine mandate for health care workers. By a 6–3 vote, the Supreme Court in 2021 denied relief to those who were seeking an injunction on the mandate.

Your humble correspondent, vaccine enthusiast, and left-handed chess player (it confuses the opponent), finds interesting, even sadly amusing, the similarities of some of the poor medical science arguments used by Jacobson and the spurious science often resorted to by the anti-vaxers today.

Sadly, the more things change, the more many things remain the same.