ONE HUNDRED YEARS AGO, in Jacobson v Massachusetts, the US Supreme Court upheld the Cambridge, Mass, Board of Health’s authority to require vaccination against smallpox during a smallpox epidemic. Jacobson was one of the few Supreme Court cases before 1960 in which a citizen challenged the state’s authority to impose mandatory restrictions on personal liberty for public health purposes. What might such a case teach us today? First, it raises timeless questions about the power of state government to take specific action to protect the public’s health and the Constitution’s protection of personal liberty. What limits state power? What does constitutionally protected liberty include? Second, answers to these questions can change as scientific knowledge, social institutions, and constitutional jurisprudence progress. A comparison of answers to these questions 100 years ago and today shows how public health and constitutional law have evolved to better protect both health and human rights.
Jacobson was decided in 1905, when infectious diseases were the leading cause of death and public health programs were organized primarily at the state and community levels. The federal government had comparatively little involvement in health matters, other than preventing ships from bringing diseases such as yellow fever into the nation’s ports. Few weapons existed to combat epidemics. There was no Food and Drug Administration (FDA), no regulation of research, and no doctrine of informed consent. The Flexner Report was 5 years in the future, medicine would have little to offer until sulfonamides were developed in the 1930s, and most vaccines would not be available for almost half a century. Hospitals were only beginning to take their modern form, and people who had mental illnesses were often shut away in asylums.
An interesting dilemma concerning state mandated vaccinations to prevent COVID-19. If you refuse a vaccine, the STATE may physically make you comply. I doubt the synopsis above that settled this case law based on a polio epidemic would have envisioned a time where profits are more important than “curing” a disease.
Could you imagine arguing this case in 1905? Would the court understand that the epidemic in this country was part of a worldwide pandemic caused by the release of a genetically engineered virus? Would they consider that the US government helped sponsor the research that created the virus? How would the court take into consideration that medicine today is more about enslaving the people with high medical insurance run by the government than curing disease? How would they consider the consequences of a protein based vaccine that has side effects with a 30% CFR if the virus mutates?
OR do you really think the courts care about the people in a two-tiered justice system?