When the Supreme Court Ruled a Vaccine Could Be Mandatory
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In 1901 a deadly smallpox epidemic tore through the Northeast,
prompting the Boston and Cambridge boards of health to order the
vaccination of all residents. But some refused to get the shot,
claiming the vaccine order violated their personal liberties under the Constitution.
One of those holdouts, a Swedish-born pastor named Henning Jacobson,
took his anti-vaccine crusade all the way to the U.S. Supreme Court.
The nation's top justices issued a landmark 1905 ruling that
legitimized the government’s authority to “reasonably” infringe upon
personal freedoms during a public health crisis by issuing a fine to
those who refused vaccination.
A Smallpox Panic and a $5 Fine
A certificate of
A certificate of "protection from smallpox" filled out by the United
States Marine Hospital Service for John Donaldson, traveling aboard SS Chalmette to New Orleans, Havana, Cuba, July 18, 1902.
The New York Historical Society/Getty Images
In 1901, the city of Boston registered 1,596 confirmed cases of
smallpox, a highly contagious, fever-inducing illness infamous for
causing a severe rash on the face and arms that often left survivors
scarred for life. In Boston alone, 270 people died from smallpox during
the extended 1901 to 1903 outbreak. That’s why public health officials
in Boston and neighboring Cambridge issued their compulsory vaccination
orders, hoping to reach the 90 percent vaccination rate required for
herd immunity.
Jacobson, who served as the pastor of a Swedish Lutheran church in
Cambridge, had been vaccinated against smallpox in Sweden when he was 6
years old, an experience that he later said caused him “great and
extreme suffering.” So when Dr. E. Edwin Spencer, chairman of the
Cambridge Board of Health, knocked on the Jacobsons’ door on March 15,
1902, the pastor refused vaccination for himself and his son.
A few months later, Cambridge was in a full-fledged smallpox “panic”
with the city ordering the closure of all schools, public libraries and churches to stem the spread of the disease. Police officers accompanied
health officials like Spencer, who went door to door vaccinating as
many as 100 people a day.
But while the Cambridge vaccine order was compulsory, it wasn’t a
“forced” vaccination. People like Jacobson who refused to get
vaccinated faced a $5 fine, the equivalent of nearly $150 today. On
July 17, 1902, Dr. Spencer issued a criminal complaint against Jacobson
and other anti-vaccine activists to collect that $5 fine.
Jacobson Goes to Court Amid Anti-Vaccination Uproar
The broader battle over the validity of vaccination science reached a
fever pitch during the smallpox outbreak. Anti-vaccination groups,
citing alleged cases of death and deformity from bad reactions to
smallpox vaccine, called compulsory vaccination “the greatest crime of
the age,” claiming that it “slaughter[s] tens of thousands of innocent children.”
In response, newspaper editorials characterized the smallpox
vaccination controversy as “a conflict between intelligence and
ignorance, civilization and barbarism.” The New York Times dismissed anti-vaccine activists as “a familiar species of cranks” who were
“deficient in the power to judge [science].”
It was against this heated backdrop that Jacobson fought his $5 fine,
first in a state trial court and then by appeal in the Massachusetts
Supreme Judicial Court. Jacobson wanted to present evidence that
vaccines themselves were dangerous and ineffective, but the judges
wouldn’t hear it. Instead, Jacobson’s chief argument became,
“Compulsion to introduce disease into a healthy system is a violation
of liberty,” specifically the personal liberty he believed was
guaranteed by the U.S. and Massachusetts constitutions.
Supreme Court Sets a Public Health Precedent
When the US Government Made Vaccines Mandatory
A street scene in Jersey City, New Jersey, depicting vaccinations
during the smallpox scare.
The National Library of Medicine
The highest court in Massachusetts also rejected Jacobson’s claims,
siding instead with the authority of public health officials to
determine the best methods for fighting an epidemic. Not ready to give
up, Jacobson appealed his case to the U.S. Supreme Court in 1905, where
he was accompanied by officers of the Massachusetts Anti-Compulsory
Vaccination Association.
In the case known as Jacobson v. Massachusetts, Jacobson’s lawyers
argued that the Cambridge vaccination order was a violation of their
client’s 14th Amendment rights, which forbade the state from “depriv
[ing] any person of life, liberty, or property, without due process of
law.” At question, then, was whether the “right to refuse vaccination”
was among those protected personal liberties.
The Supreme Court rejected Jacobson’s argument and dealt the anti-
vaccination movement a stinging loss. Writing for the majority, Justice
John Marshall Harlan acknowledged the fundamental importance of
personal freedom, but also recognized that “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.”
This decision established what became known as the “reasonableness”
test. The government had the authority to pass laws that restricted
individual liberty, if those restrictions—including the punishment for violating them—were found by the Court to be a reasonable means for
achieving a public good.
“Bottom line, there had to be some kind of real and substantial
connection between the law itself and a legitimate purpose, which was
the public’s health, safety and welfare,” says Anthony Sanders at the
Institute for Justice.
Compulsory School Vaccinations and Forced Sterilizations
The Jacobson decision provided a powerful and controversial precedent
for the extent of government authority in the early 20th century.
In 1922, the Supreme Court heard another vaccination case, this time
concerning a Texas student named Rosalyn Zucht who was barred from
attending public school because her parents refused to have her
vaccinated. Zucht’s lawyers argued that the school district’s ordinance requiring proof of vaccination denied Rosalyn “equal protection of the
laws” as guaranteed by the 14th Amendment.
The Supreme Court disagreed. Justice Louis Brandeis wrote in the
unanimous decision: “Long before this suit was instituted, Jacobson v. Massachusetts had settled that it is within the police power of a state
to provide for compulsory vaccination. These ordinances confer not
arbitrary power, but only that broad discretion required for the
protection of the public health.”
In a far darker chapter, the Jacobson decision also provided judicial
cover for a Virginia law that authorized the involuntary sterilization
of “feeble-minded” individuals in state mental institutions. In the
1920s, eugenics enjoyed wide support in scientific and medical circles,
and the Supreme Court justices were not immune.
In the infamous 1927 case Buck v. Bell, the Supreme Court accepted the questionable “facts” presented in the lower court cases that a young
Virginia woman named Carrie Bell hailed from a long line of “mental
defectives” whose offspring were a burden on public welfare.
“The principle that sustains compulsory vaccination is broad enough to
cover cutting the Fallopian tubes (Jacobson v Massachusetts, 197 US
11). Three generations of imbeciles are enough,” wrote Justice Oliver
Wendell Holmes in a chilling opinion.
The Buck decision opened the floodgates and by 1930, a total of 24
states had passed involuntary sterilization laws and around 60,000
women were ultimately sterilized under these statutes.
“Buck v. Bell is the most extreme and barbaric example of the Supreme
Court justifying a law in the name of public health,” says Sanders.
Supreme Court Rules on Pandemic Lockdown Orders
COVID-19 testing, Coronavirus pandemic
A health worker takes a nasal swab sample at a COVID-19 testing site at
St. John's Well Child and Family Center, in Los Angeles, California,
during the coronavirus pandemic, July 24, 2020.
Valerie Macon/AFP/Getty Images
A lot changed since 1905, including the ways in which the Supreme Court
decides if certain laws and statutes violate an individual’s
constitutional rights. Starting in the second half of the 20th century,
the Court began to recognize certain constitutional rights as
“fundamental,” including the freedoms of speech and religion, and
personal decisions about marriage, contraception and procreation.
Near the beginning of the COVID-19 pandemic, as states issued lockdown
orders that closed businesses and prohibited large gatherings, several
judges justified those restrictions by citing Jacobson v.
Massachusetts, since it was the most recent Supreme Court ruling
explicitly addressing state powers during a disease epidemic, even if
it was 115 years old.
But in a reversal, the Supreme Court ruled in 2020 against broadly
applying the logic of Jacobson to all COVID-19 lockdown restrictions.
In Roman Catholic Diocese Of Brooklyn, New York v. Andrew M. Cuomo, the
Court decided that the State of New York violated the constitutional
rights of citizens wanting to safely gather in churches and synagogues
during the pandemic. The reasoning was that the lockdown laws barred
religious gatherings altogether while still allowing secular business
to operate at limited capacity.
“Jacobson hardly supports cutting the Constitution loose during a
pandemic,” wrote Justice Neil Gorsuch for the 5-4 majority. “That
decision involved an entirely different mode of analysis, an entirely
different right, and an entirely different kind of restriction.”
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