History Thursday: When the Supreme Court said yes to vaccine mandates

The vaccine mandate debate may be rejuvenated, but it’s hardly new.

The U.S. Supreme Court answered the can-they-do-that question more than 115 years ago.

In an era when infectious diseases killed more Americans than any other cause of death, smallpox was ripping through Cambridge, Massachusetts. State lawmakers passed a statute allowing local boards of health, “if it is necessary for the public health or safety,” to require vaccination among all those 21-and-up, or levy a $5 fine (at least $140 today, adjusted for inflation).

Henning Jacobson, a middle-aged minister, contested the charges, and his case made it to the U.S. Supreme Court. He argued the vaccines caused injury and posed a danger to recipients. The mandate invaded his liberty.

In a 7-2 decision in 1905, the court upheld the law. Justice John Marshall Harlan wrote a majority opinion, noting the century of understanding from physicians that vaccines prevent the spread of infectious disease. The chance of vaccine injury exists, but that risk is “too small to be seriously weighed” against the benefits of vaccination, the court ruled.

The liberty established by the U.S. Constitution, he wrote, isn’t an absolute right for every person to always be freed from all restraint.

“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,” he wrote.

The ruling didn’t allow the government to force vaccination against Jacobson’s will — only to levy the fine against him. Harlan’s opinion also emphasized medical exemptions in its application.

It’s unclear to what extent Jacobson v. Massachusetts could apply to President Joe Biden’s announced plan to require large employers to require either COVID-19 vaccination or weekly testing of employees. The ruling established states’ power to mandate vaccination, not necessarily the federal government (though analysis from the nonpartisan Congressional Research Service suggested federal law could form the basis for executive action).

It was a different time. There was no Food and Drug Administration, no regulation of research and no doctrine of informed consent, all in the face of a disease that killed as many as one in three victims, according to a a review of the case in a 2005 article in the American Journal of Public Health.

“The Supreme Court had no difficulty upholding the state’s power to grant the board of health authority to order a general vaccination program during an epidemic,” the authors wrote.

Less than 20 years later, the court relied on Jacobson to uphold another case brought by Texas woman named Rosalyn Zucht who refused vaccination and challenged a statute prohibiting schoolchildren from enrolling in public or private schools unless they received a smallpox vaccine. Supreme Court Justice Louis Brandeis wrote that the court had already “settled that it is within the police power of a state to provide for compulsory vaccination.”

The precedent was groundbreaking, but the aftermath wasn’t always pretty.

The Supreme Court cited Jacobson as precedent to justify a ruling that allowed for the involuntary sterilization of the “feeble minded.” More than 60,000 Americans, mostly poor women in state mental institutions, were sterilized by 1978, according to the AJPH article.

“The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes,” Justice Oliver Wendell Holmes wrote for the court in a majority opinion in 1927.

The Jacobson ruling also sparked an explosion within the anti-vaccine movement. According to a 2008 article in the Harvard Law Review, the Anti-Vaccination League of America was founded in Philadelphia by 1908, with the court’s holding in mind.

At its founding conference, its founder addressed his listeners with rhetoric laced with echoes of cries from conservatives and anti-vaccination activists of today.

“We have repudiated religious tyranny; we have rejected political tyranny; shall we now submit to medical tyranny?” he asked.