Wednesday Writs: Mandatory Vaccination Edition

L1: We recently discussed, in this space, the quarantine power of the state, hearkening back to the very early 1900s and the southern scourge of Yellow Fever. Today, while some fervently hope for the quick arrival of a vaccination against COVID-19 and others are already vowing never to submit to coronavirus inoculation because…reasons, we return to the turn of the last century on further discussion of the state’s authority to enact public health laws.

This time, the ailment sought to be eradicated was smallpox, and instead of Louisiana we are in Massachusetts. As an outbreak of pox swept through the city of Cambridge, the town instituted mandatory vaccinations, a power vested upon municipalities through Massachusetts law. A citizen of Cambridge, Henning Jacobson, recalled a bad experience he had endured when previously receiving the smallpox vaccine, and refused to get another one or to allow one to be administered to his child. He was charged criminally in accordance with the statute, found guilty, and fined $5.

Jacobson appealed his conviction to the Supreme Court of Massachusetts, reasserting his claims from trial that the mandatory vaccination violated the spirit of the constitution, its preamble, and his 14th amendment rights, and that his criminal conviction was therefore improper. The court rejected his arguments. The trial court had not permitted Jacobson to present evidence regarding the ingredients of the vaccine or of the harm he believed they may cause, calling the former “a fact of common knowledge” and the latter “his personal opinion”, finding both immaterial to whether or not Jacobson had refused to be vaccinated.  Even if Jacobson could have found an expert to testify that the vaccine was harmful, said the appeals court, the weight of the evidence would have gone heavily to the opposing experts who would point out the half-century of consensus by the medical community that the smallpox vaccine was effective in preventing the disease and that its efficacy far outweighed any possible side effects.

Jacobson took his case to the US Supreme Court. The opinion in our case of the week, Jacobson v. Massachusetts, was written by Justice John Marshall Harlan (the first). Finding in favor of the commonwealth, the Court wrote that the authority of the state to enact public health legislation such as mandatory vaccination was an appropriate form of the state’s police power, citing precedent which upheld mandatory quarantine and other laws intended to protect the health and welfare of the people.

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. 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.

The Court recognized that the statute contained an exception for children “certified” to be “unfit subjects” for vaccination, though no such exception existed for adults. However, the Court reasoned that, even if there had been an exception for adults, Jacobson had no evidence that he was unfit to receive the vaccine. Jacobson’s conviction was affirmed.

Harlan’s opinion was careful not to suggest an overly broad police power of state government, and noted that overly oppressive use of the power would be subject to scrutiny and invalidation. However, the Jacobson opinion had further reach in the ensuing decades. Perhaps most notoriously, its rationale was used by Justice Oliver Wendell Holmes, Jr. in his infamous opinion in Buck v. Bell in 1927, writing that “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”

That particular legacy of Jacobson has resurfaced today, as society finds itself contorting to adjust to COVID-19. The Fifth Circuit Court of Appeals cited Jacobson just last week, in ruling that abortion clinics should have been included in Texas’s governor’s order suspending non-elective medical procedures in light of the pandemic.

L2: Governments, businesses, and their lawyers gear up for a fight over COVID-19-related shutdowns. 

L3: In a first for the high court, SCOTUS will hear cases via teleconference.

L4: However, lawyers may want to get out of bed or put on a shirt before their cases are called.

L5: Utah becomes the first state prompted to institute diploma privilege for law school grads as a result of canceled bar exams due to COVID-19 (Wisconsin had it before the pandemic.)

L6: Dem-controlled Virginia makes a marked shift to the left with the passage of several new state laws.

L7: Unsurprisingly, scammers have found a goldmine in the Coronavirus pandemic, from fake medical supplies to over-the-phone credit card scams.

L8: The first black woman to graduate from Harvard Law passed away this week at 87 years old. Lila Fenwick had a long career as a human rights official at the United Nations before her retirement. She died from coronavirus.

L9: Agreeing to the Instagram Terms of Service forfeits their right to control usage of their photos, according to a decision out of a New York federal court.