Coronavirus news & views

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.

Masks Redux

"You’ve got to be very careful if you don’t know where you are going, because you might not get there."

—Yogi Berra

As cases of COVID-19 ascend in areas of the US, some schools are reverting to requiring masks. Of course this is accompanied by renewed claims that they are ineffective. In fact, Florida governor Ron DeSantis issued an executive order barring local school districts from requiring their students to wear masks, claiming that there was no evidence that masks prevent infection in schools. That claim has been levied over and over by many politicians, talking heads, pundits, and assorted Facebook “experts.” But, they are flat wrong. There are multiple lines of evidence from a variety of disciplines—including materials science, infectious diseases, pediatrics and epidemiology—showing that masks can help protect children and teachers from getting COVID in schools. Some of that evidence has already been presented in these pages, and I now add to that body of evidence, more  data recently summarized in Scientific American.

1. For starters, laboratory experiments show that masks block the respiratory droplets and aerosols that transmit SARS-CoV-2, the virus that causes COVID. In one test, an engineering team at the University of Wisconsin–Madison used a machine in a classroom setting to pump out particles the same size as those that carry the virus from an infected person. The researchers placed several CPR dummies with or without masks around the room and measured the degree to which the aerosols penetrated the masks. They reported that a surgical mask reduced the chances of penetration by 382 times when compared to the maskless mannequins.
2. Then, in the real world, not a laboratory setting, several epidemiological studies also concluded that masks in schools work. Researchers at the ABC Science Collaborative in North Carolina collected data from more than a million K–12 students and staff members from schools across that state, which mandated masking in schools from August 2020 until July 2021. The scientists reported little in-school transmission when the mask mandates were in place during the fall, winter or summer months. During this time, in-school transmission remained low as COVID cases fluctuated outside the schools. With mask mandates, rates of within-school spread were as low as one percent.
3. Masks, combined with other prevention efforts, also reduce the risk that students might bring home the virus to parents or other relatives. An online survey of 2.1 million Americans by researchers at Johns Hopkins University showed a 38 percent increased risk of COVID-related illness in households with a child attending school in person. That risk went down, however, as the number of school-based mitigation measures, including mask mandates went up.
4. Studies done in wider communities beyond schools give the strongest real-world evidence that masks stop COVID’s spread. An international team of researchers conducted a randomized controlled trial involving nearly 350,000 people across 600 villages in rural Bangladesh. Half of the villages got free cloth or surgical masks and a promotional campaign encouraging their use. The other half did not. The researchers found that the mask intervention significantly curbed coronavirus transmission.

Bottom line:  The effectiveness of masks in schools is supported by many different studies and analyses that show similar results. There are more than a dozen studies beyond those cited here, that all point to the same conclusion:

Masks work.

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What Happened To The Flu And Other Respiratory Diseases?

A NYC based travel blogger who travels a lot used to get a respiratory infection whenever she flew. That stopped when the airline mask mandates went into effect. The mandates, of course, were designed to hinder the spread of the CoV-2 virus that causes COVID, but it makes sense that if masks and other physical (that is, non-medical) mandates worked to mitigate COVID, then we would see a decrease in other contagious respiratory diseases after the mandates were, well…mandated.

We did.

The mandates worked, despite persistent claims of some to the contrary. This particular blog subject was stimulated by a radio talk show where a couple of nonscientist talking heads announced that there was no scientific proof that the masks or other mandates prevented disease. I previously posted in these pages evidence that masks, in particular, do indeed work to retard the spread of disease (see here, here, here, and here). In this post, I present further data on how the mandates significantly reduced the incidence of other infectious respiratory diseases around the world. If the measures can reduce flu, then you can bet that they also reduced COVID-19.

Note, however, that this is not necessarily an endorsement for returning to the measures. Your humble scribe didn’t much like his glasses fogging up, or having to make two trips from the car to the store because he forgot his mask. But, let’s argue the issue based on its merits and not from false premises based on incorrect claims.

After South Korea implemented various hygiene and social distancing measures in response to COVID, they saw the 2019-20 flu season end an astounding 12 weeks earlier than the previous year. Epidemiological surveillance data bolstered by clinical diagnostic testing showed that infection from several different pathogenic respiratory viruses (including adenovirus, bocavirus, metapneumovirus, rhinovirus, flu, parainfluenza, and respiratory syncytial virus) dropped to nearly 0% just five weeks into 2020!

In the United States, the incidence of infection by influenza, respiratory adenovirus, rhinovirus, enterovirus, RSV, non-COVID coronaviruses, metapneumovirus, and parainfluenza viruses all decreased in March 2020, soon after implementation of mandates. Similar results were seen in Japan.

More dramatically, since pandemic mitigation measures were put in place, there has been a 99% global reduction of infections from both influenza types A and B compared to prior years. In particular, one of two flu B substrains has not been isolated in the world since August 2021 suggesting that this variant is now extinct. The overall genetic diversity of influenza viruses has also dramatically diminished indicating that other flu sub-types (or clades) have disappeared around the world since the pandemic mandates were put in place.

And this reduction of respiratory infectious disease does not only hold for those caused by viruses. Another study looked at surveillance data from 26 countries across 6 continents for several bacterial diseases caused by Streptococcus pneumoniae, Haemophilus influenzae, and Neisseria meningitidis, which are typically transmitted via respiratory droplets. Numbers of weekly cases in 2020 were compared with corresponding data for 2018 and 2019. Data for disease due to Streptococcus agalactiae, a non-respiratory pathogen, were also collected from nine laboratories for comparison. All countries experienced a significant and sustained reduction in respiratory bacterial diseases in early 2020 (Jan 1 to May 31), coinciding with the introduction of non-medical COVID containment measures in each country. By contrast, the incidence of disease due to S agalactiae (which is not transmitted by the respiratory route) did not differ significantly from the 2 previous years.

Clearly, the mandates significantly reduced the incidence of respiratory infections by non-COVID viruses and bacteria. They worked. So, why did we still have COVID infections after the mandates went into place? The mandates reduced, not eliminated these diseases, so infections still happened. Since we did not have historical COVID infection data from previous years to compare with, the effects of the current mandates on the incidence of COVID are not as clear cut as they are with other diseases for which we do have historical data for comparison. But, as I wrote before (see above), it is clear that places in the US and around the world that used masks and other protective measures saw reduced incidence of COVID compared to similar places that did not.

Bottom line: The studies mentioned here regarding non-COVID infectious diseases fully support data previously posted in these pages that the mandates, including masks, are effective non-medical tools for controlling infectious respiratory diseases.

Don’t let anyone tell you differently.

Son Of Omicron

“A rose is a rose is a rose.” –Gertrude Stein

Omicron is Omicron is Omicron (except when it becomes something different).

Two-plus years into the pandemic, many Americans are ready to declare the COVID crisis over. But, we have been at this juncture before—at the end of the very first surge (remember “flattening the curve?”), and again as Delta faded. Each time, a new virus variant came roaring back. Why should it be different now?

There are reports of two new sons of Omicron circulating in the world. The original Omicron, or BA.1 has spawned BA.2 and BA.3. While little is known about BA.3 at this time, very early indications are that BA.2 represents an even more infectious variant of Omicron, and it is spreading around the world and the US. This variant of a variant seems to be about 30% more infectious than Omicron BA.1. It quickly overtook BA.1 in South Africa and other countries and has caused a second Omicron surge in Denmark. BA.2 has been detected in 74 countries, and has become dominant in at least 10 of them: Bangladesh, Brunei, China, Denmark, Guam, India, Montenegro, Nepal, Pakistan and the Philippines, according to the World Health Organization's weekly epidemiological report.

In the US, BA.2 has been reported in 47 states and accounts for ~4% of all new infections according to the CDC, and it appears to be doubling fast. Samuel Scarpino, director of pathogen surveillance at the Rockefeller Foundation says that if infections double again to 8%, we will be in another exponential growth phase, or the fifth wave of the pandemic. In other words, BA.2 seems to be quickly backfilling the vacuum left as BA.1 peters out.

While BA.2 clearly arose from BA.1, it carries dozens of additional gene changes, making BA.2 as distinct from BA.1 as the Alpha, Beta, Gamma and Delta variants were from each other. This suggests that BA.2 might soon be given its own unique Greek letter designation.

What does BA.2 augur? While vaccination and prior infection still appear to protect fairly well against BA.2, this variant still seems more adept at skirting the immune system then the original Omicron. An early report also shows that vaccine induced antibodies often fail to neutralize BA.2 in tissue culture, and that the virus better replicates than BA.1 in nasal epithelial cell cultures. Nevertheless, those who have been vaccinated and boosted are 74% less likely to become ill from BA.2.

Hopefully, this reduced immunity will still be enough to provide an immunological redoubt against extensive spread of BA.2. The best thing that could happen is that as we become increasingly immunized by vaccine and infection, it might be enough to continue the drop in BA.1 Omicron infections, and check any surge from the new BA.2 variant. This is speculation at this point, and one thing we have learned over the last 2+ years is that the virus does not often respond as expected.

Then there is this: Very preliminary laboratory data hint that BA.2 might cause more severe disease than BA.1, and it appears capable of foiling some of the key weapons we have against COVID-19. In initial lab studies, a Japanese team reported that BA.2 has structural features that might make it as virulent as Delta was. This prediction of increased virulence was supported by hamster infection experiments, but this has yet to be confirmed or refuted in real-life epidemiological studies. Rest assured, those studies are underway, so we will see.

BA.2 also is almost completely resistant to some COVID treatments, such as sotrovimab, a monoclonal antibody therapy that is currently used against Omicron.

Bottom line: During the Spanish flu, as people wearied of the social restrictions designed to prevent the spread of the virus (there were no vaccines or drugs for flu then), many pushed back against the restrictions, which led to premature relaxation of the mandates. Cities like Denver and Philadelphia, which lifted their mandates early paid a hefty price. Other cities like St. Louis, which took a more cautious approach were relatively unscathed. Let’s hope that we are not relaxing and entering a “control phase” too quickly.

What’s ahead of us is not COVID’s end, but might be the start of a phase in which we continue to invest in measures to continue to shrink the virus’s burden. Success in this is not entirely up to us. The virus will have a say too. Our future will depend both on the virus’s continued and unpredictable evolution and on our responses, both immunological and social. The goal is to get ahead of any new variants with wide spread immunity and a growing formulary of antibody and drug treatments, and, yes, this might also require renewed mandates.

A detailed report  looking at past suspected coronavirus pandemics (e.g., the Russian “flu”of 1889, which was probably a coronavirus) published last August in the journal Microbial Biotechnology, suggested plausible scenarios in which elevated levels of COVID-19 deaths could last another five years or longer. This of course depends on what happens to and after BA.2.

It probably is not quite time to relax all mask mandates or let up on the push to vaccinate.

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Lessons for COVID Vaccinations And Herd Immunity From Influenza And Rubella

Note: The following is modified from the blog post, “Rubella: We vaccinate for far less,” by Katelyn Jetelina, MPS, PhD who is an “epidemiologist, biostatistian, professor, researcher, wife, and mom of two little girls.” She writes a blog entitled, “Your Local Epidemiologist.”

 “Those who cannot learn from history are doomed to repeat it.”

 George Santayana

 

In the US, more than 300,000 kids aged 5-11 have been vaccinated with the Pfizer COVID-19 vaccine, which has proven that the vaccine is safe and can benefit some kids. It prevents infection, COVID-19 disease, death, long COVID-19, and keeps kids in school. Admittedly, only a few kids develop serious COVID disease and fewer have died from it. Most infected kids only have mild, if any, symptoms. Vaccine skeptics use this fact to stridently argue against childhood COVID vaccines. So, why are we pushing to vaccinate children who rarely get seriously ill?

There are two reasons why we vaccinate anyone. The first reason is to protect the vax recipient from the disease; this is an individual-level benefit of the vaccine. The second is to protect a larger population by trying to retard disease spread; this is a population-level benefit of vaccines that is better known as herd immunity.

But, anti-vaxers only focus on the fact that childhood vaccines provide little individual-level benefit to children and wholly ignore the larger population-level benefit of the vaccines. As I have written before, vaccinating children who are at low risk for serious disease is still very important for reducing viral spread in order to  prevent more dangerous viral mutants from emerging. It also is important for reducing infection and disease in more vulnerable people in the population. It is these population-level benefits that are the most important reason to vaccinate low-risk children. Vaccinating children for a population-level benefit, rather than for individual-level benefit, is not at all new and is a very acceptable practice. Here are a couple of examples.

Influenza: A few decades ago, Japan mandated flu vaccines for all school kids. That vaccine slowed the spread of flu in schools leading to many fewer student illnesses and absences. More significantly, vaccinating all school kids also caused a sharp drop in flu deaths in older people like school teachers and staff, parents, and grandparents who have close contact with the kids.

Kids are walking incubators for respiratory viruses and readily spread their germs to others. Infected children essentially are virus vectors much like mosquitoes are vectors for malaria and yellow fever. Therefore, in Japan, the flu vaccine effectively shut down a major vector of influenza infection for at-risk older people. That is an undeniable and important population-level benefit of vaccinating school kids against the flu.

Rubella: Now, let us take a deeper dive into rubella, or German measles, and its vaccine, which is the “R” in the MMR shot. It is especially enlightening to compare the natural history of rubella to what we are learning about COVID-19.

Both COVID and rubella are caused by airborne viruses that spread when infected people cough, sneeze, or even talk. As with COVID, rubella symptoms in children are quite mild. They include its tell-tale measles-like rash, sore throat, low grade fever, mild pink eye, and general discomfort. But, about 25 to 50% of infected children will not experience any symptoms. Likewise, many CoV-2 infected kids also do not develop symptoms. But, asymptomatic kids infected with either rubella or CoV-2 readily spread their viruses to friends and family; hence, they can be significant vectors delivering both viruses to people at-risk for serious disease.

Over the last two years, we have learned that COVID mostly (with significant exceptions) causes serious illness and death in older people or for those with certain other health conditions. Similarly, while rubella only causes mild disease in most children, it is incredibly dangerous for developing fetuses. A woman infected with rubella during the first 3 months of pregnancy has a 90% chance that the fetus either will not survive or will develop Congenital Rubella Syndrome (CRS), characterized by deafness, blindness, heart defects, and/or severe brain damage. In the early 1960s, a rubella outbreak began in Europe and spread to the US. In 1964-65 ~12.5 million total cases were reported in America affecting nearly 50,000 pregnancies. More than 11,000 of the infected mothers miscarried, or delivered still-born babies. Of the >20,000 infants born alive to infected mothers, the majority had severe illnesses: 2,100 died shortly after birth, 12,000 were deaf, 3,580 were blind, and 1,800 had permanent mental disabilities.

The rubella outbreak proved hard to contain because, as with COVID, infected asymptomatic people make it hard to know when someone is spreading the virus. Rubella also is just as contagious as COVID. Both viruses have an R₀ = 6-7 meaning that each infected person will infect, on average, 6-7 other people. For comparison, flu’s R₀ = 2-3, which means it is about half as contagious as the other two viruses. It, therefore, is not surprising that like rubella, the COVID outbreak is proving hard to contain.

Soon after the 1960s rubella pandemic began, a safe and effective vaccine was quickly developed and approved for use in Europe and North America (this is reminiscent of the quick development of the COVID vaccines). Early on, there was a robust international debate on who should get the rubella vaccine. There were two schools of thought:

1. Despite the fact that rubella only caused mild problems in kids, some proposed vaccinating all children hoping to provide indirect population-level protection for pregnant women and their at-risk fetuses.
2. Others argued that because children were only minimally affected they should not be subjected to the vaccine and that only women of childbearing age should be vaccinated. This, proponents argued, would more specifically protect those most at risk.

Ultimately, it was found that countries that chose #2 were not able to sufficiently reduce the virus, because it still spread unfettered among children. This strategy did not reduce the rates of CRS. Eventually, option #1, vaccinating low-risk children (like what we are moving toward with the COVID vaccine) was adopted world-wide. Vaccination rates of school kids reached ~85% in the US, which last experienced a serious rubella outbreak in 1995. In 2004, transmission of rubella was eliminated in the United States and in 2015, it was eliminated in all the countries of North and South America.

Soon, the MMR vaccination was mandated for children in all 50 states. It is important to realize that these mandates were not to protect kids from the mild disease but to protect the at-risk population, or fetuses. In other words, we vaccinate kids against rubella not so much to protect them, but to provide a significant population-level benefit to others.

Today, because of broad rubella vaccination of low-risk children, we see an annual average of just 10-15 cases of CRS in the US that are traced back to international travel to countries with poor rubella vaccination rates. In contrast, in countries with low vaccination rates, about 120,000 children are born each year with severe CRS birth defects and even more die in utero.

Bottom Line: This country, and indeed all of the Americas and most of Europe came together to eliminate endemic rubella through broad population-level vaccination programs targeting low-risk groups responsible for spreading the virus to the high risk population. Japan saw the same effect with influenza. They focused on broadly vaccinating a low-risk population (school kids) and saw great benefits in the high-risk older population. As we approach a broad COVID vaccination strategy that includes giving the shot to low-risk children, it very likely will have a population-level benefit and help protect those most at-risk for serious disease.

It is important to note that the population-benefit conferred by the COVID vaccine also applies to all of us and not just to children. When we are vaccinated, not only does it protect us, it also provides significant protection to at-risk people around us. That, in fact, is called “herd immunity.”

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The History Of Vaccine Mandates In The US

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As employers and the President are pushing vaccine mandates because too many have refused them, voices are crying out for their perceived rights saying “my body my choice.” They do not like their bosses or the government telling them to get vaccinated. This is a clash between individual rights and public health measures designed to save lives and to protect the larger community. Who gets to make the key decisions? How far can the government and employers go? Do individual rights trump community safety?

On Sept. 9, Biden announced the most sweeping vaccine requirements in American history, ordering that businesses with 100 or more employees ensure that all their workers are either vaccinated or get tested weekly for the coronavirus. The new rules also require vaccinations for federal workers and for federal contractors, as well as for workers at healthcare facilities that receive funding from Medicare and Medicaid. This will affect about 100 million people.

The authority for these government mandates, claims Biden, is a 1970 federal statute that gives the Secretary of Labor authority to issue a six month Emergency Temporary Standard (ETS) to protect workers from “grave danger from exposure to substances or agents determined to be toxic or physically harmful.” His move has triggered a political and legal battle, with many Republican governors vowing to fight the mandates in court. The mandates raise several new questions regarding this vague statute: Is a virus a “…toxic or physically harmful substance?” Does COVID-19 present a “grave danger?” Has the executive branch exceeded its authority in offering a solution to a problem previously reserved to the states? Do these mandates violate the 14th Amendment by depriving workers of their personal liberties? It is important to note that Biden’s mandates do not actually make vaccines compulsory: The government may levy a fine or forbid a child from attending school, but no American will be forced to get an unwanted jab. This has not always been the case.

There are historical precedents for vaccine mandates and even for forced vaccination.

In February 1991, five Philadelphia children died from measles, a disease that was mostly eradicated in the US, due to vaccination. Measles once sickened millions of kids, each year hospitalizing ~50,000 and killing close to 500 before a successful vaccine was developed in 1963. After that, cases dropped dramatically as all states mandated measles shots for school children. Vaccine hesitancy and resistance were rare because people saw the tangible success of the measles vaccine.

But, in Philadelphia that winter of 1991, the serious cases of measles came from a single source, a church cult that rejected “…all means of healing apart from God’s way.” Church members took no medicines, owned no thermometers, and saw no doctors. Rejecting all birth control, they raised large families in close quarters, a recipe for the measles epidemic, which they cooked. Trying to contain the threat to the rest of the city, officials worked through the courts to gain access to the homes of the congregants and received the authority to vaccinate the children against the wishes of their parents. In this public health emergency, defending the parents’ anti-vax actions was close to impossible. Even the ACLU took a pass.

Vaccine mandates even appeared during the Revolutionary War. George Washington mandated that all his troops be immunized against smallpox, even against their will. He described smallpox to Virginia’s Governor Patrick Henry as “more destructive to an Army in a Natural Way, than the Enemy’s Sword.” As I wrote earlier in these pages, smallpox had doomed the Colonial Army’s assault on Quebec in 1775, and it threatened Washington’s main force. Washington’s mandate proved a brilliant gambit and smallpox largely disappeared from the ranks. Some historians point to the mandate as a major factor in winning the war against the Brits.

During that war, smallpox vaccination entailed a primitive vaccination procedure known as variolation. That involved opening a lesion from an infected person and scraping its contents into the arm of a recipient. It was effective, but the vaccinated person became quite ill for a couple of weeks, and about 3% of them died from the pox. Later, in 1796, the English scientist Edward Jenner discovered a much safer method of immunization using cowpox, a virus similar to smallpox that did not cause significant disease in people. But the new smallpox vaccine got a mixed reception in the US as some resisted it for reasons of personal safety based on the variolation experience. They rationalized, “what good could possibly come from polluting the body with dangerous foreign matter?” Or, “Why challenge the plans of the Creator?” Still, Jenner’s vaccine was a clear improvement over variolation and drove a steady decline in smallpox outbreaks throughout the 19th century. States began passing laws mandating smallpox vaccinations for school children, and some forcibly vaccinated prisoners, paupers, and orphans.

In 1905, the issue of vaccine mandates reached the Supreme Court in the seminal case of Jacobson v. Massachusetts. Henning Jacobson, a Lutheran pastor in Cambridge had defied a city ordinance requiring smallpox vaccinations during an outbreak. He refused to pay a $5 fine so he was arrested. Jacobson posited that “healthy and law-abiding” people like himself (even though he was disobeying the law at the time) posed a minimal danger to the community. He argued that even if his refusal to be vaccinated led to him spreading the smallpox virus, the only victims would be others “who failed or refused to be vaccinated.” In other words, he reasoned that it would be ok to not get the vax because the vaxed would be safe, but wholly ignored the rights to safety of those who were not vaxed. 

It is an argument that is repeated today about the CoV-2 vax. Using modern science that was not available in the early 20^th century, experts have repeatedly refuted this argument, explaining that many people who want the vax cannot be fully vaccinated because they are immunocompromised, or allergic to the vaccine’s contents, or do not have access to the vaccine. Also, we now know that the more RNA viruses, like the coronavirus, are allowed to spread, the greater the chance more deadly variants can appear. Jacobson’s contention that the decision to vaccinate solely belongs to the individual, not to the state, employers, or to medical authorities remains a central tenant of today's anti-vaxers.

The Supreme Court disagreed with Jacobson. The majority opinion, written by Justice John Marshall Harlan, asserted that “the liberty secured by the Constitution does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint.” Rather, he argued, the Constitution rests upon “the fundamental principle of the social compact…that all shall be governed by certain laws 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.” Jacobson had not only broken the law, the court suggested he also had violated the principle upon which a well-ordered society depends. We are not wholly independent the court ruled. The greater good of the community can trump individual rights.

Using Jacobson as precedent, the Supreme Court in 1922, upheld a local ordinance in San Antonio requiring proof of smallpox vaccination for people entering “public schools or other places of education.”  

Later, during World War II, the US military made vaccines mandatory for a host of diseases, such as typhoid, yellow fever and tetanus, and it still mandates certain vaccines for troops in certain deployments. Soon after the war very successful vaccines were developed against several childhood diseases like polio, measles, mumps and chickenpox. Guided by the Supreme Court’s ruling in Jacobson, all 50 states put laws on the books mandating many of these vaccinations for school children. Even today, many school districts and colleges mandate certain vaccines for students and staff. Hospitals, too, often mandate certain vaccines for their staff. Until lately, vaccine mandates have not generated much angst and anger.

Why is this? Perhaps vaccines have done their job too well: Many of them have erased the tragic evidence of why they were needed in the first place. The world no longer deals with small pox, thanks to the vaccine. Almost no one in this country has seen someone ravaged by polio, or a child hospitalized with measles, or who lost his hearing due to chicken pox, all thanks to vaccines. Yet, now with COVID-19, anti-vaccine anxieties have found their way into the political mainstream, especially among conservatives. An estimated 80 million American adults remain unvaccinated against COVID and represent potential factories for producing the next deadly coronavirus variant, which is very preventable.

As I have addressed before in these pages, many factors fuel resistance to the life-saving shots, including doubts about their quick development and their possible long-term effects. But a growing distrust of professional expertise, including medical science, has also played a role, which is unwarranted. Who are you going to believe, a medical scientist like me with nothing to gain in the debate (except the safety of my friends, family, and self), or someone who read a web post from folks who are selling nostrums they claim will protect you, like Dr. Steve Hotze, or from one of America’s Frontline Doctors whose web site claimed that gynecological problems were caused by having sex with demons? Do you jump on the side of those who tout that their individual freedoms have been abridged, but who do not consider the freedoms from disease of the greater community, and whom the courts already have decided against?

Almost 300 years ago, Benjamin Franklin struggled over whether to have his sons variolated against smallpox. In his “Autobiography,” he worried that well-meaning people were tragically misjudging the calculus between the risks and benefits of the procedure, as he had once done, with a tragic result. He wrote, “In 1736, I lost one of my sons, a fine boy of four years old, by the smallpox….I long regretted bitterly and still regret that I had not given it to him by inoculation. This I mention for the sake of the parents who omit that operation, on the supposition that they should never forgive themselves if a child died under it; my example showing that the regret may be the same either way, and that, therefore, the safer should be chosen.”