Background

Significance

This case is significant in that many judgements in relation to the Covid Vaccination program cite this case as the reason for why the government has the authority to remove civil liberties when faced with a health crisis. It also raises many questions as to the scope of the ruling, the ethics then vs now, the science knowledge then vs now and many more issues of legality, science & ethics.

• 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.2 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. (1)
• 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. (1)
• Jacobson was the rare case in which a state’s jurisdiction was not questioned—because no one claimed that the federal government should control a local smallpox epidemic. Instead, the question was whether the state had overstepped its own authority and whether the sphere of personal liberty protected by the Due Process Clause of the 14th Amendment38 included the right to refuse vaccination. (1)
• Jacobson thus framed the question on the basis of two fundamental and thorny issues in U.S. Constitutional law: Federalism (where do we draw the line between the power of a state and the power of the federal government) and the Social Compact (where do we draw the line between the rights of the individual and the rights of the community). (2)

Plaintiff’s Argument

Justice Harlan stated the question before the Court: “Is this statute . . . inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the State?”2^(p25) Harlan confirmed that the Constitution protects individual liberty and that liberty is not “an absolute right in each person to be, in all times and in all circumstances, wholly free from restraint”: (1)

There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution. But it is equally true 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.2^(p29) (1)

Thus, the more specific questions were whether the safety of the public justified this particular restriction and whether it was enforceable by reasonable regulations. The Court answered yes to both questions. (1)

The Court nonetheless concluded with a note of caution:

The police power of a State, whether exercised by the legislature, or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.2^(p38)  (1)

For example, it noted that the law should not be understood to apply to anyone who could show that vaccination would impair his health or probably cause his death. (1)

Decision

• The decision held that a state may require healthy adults to accept an effective vaccination when an existing epidemic endangers a community’s population. As with all court decisions, what this “means” is a matter of interpretation. Jacobson may be what Sunstein called a narrow and shallow decision—narrow because it is not intended to apply to a broad range of legislation, and shallow because it does not explicitly rely on a general theory of constitutional interpretation to justify its result.42 People who have quite different world views or philosophies can accept the decision because it need not require the same result for different laws or in different circumstances. Not surprisingly, judges and scholars emphasize different language in the opinion to support different interpretations.43–46 (1)
• The Court mentioned 2 justifications for the Massachusetts law. First, it found that the state may be justified in restricting individual liberty “under the pressure of great dangers” to “the safety of the general public.” The statute, by its terms, encroached on liberty only when “necessary for the public health or safety.”2^(p29) The smallpox epidemic proved the danger to the public. Second, by using the language of earlier decisions, the Court said that laws should not be arbitrary or oppressive. It also suggested that the state should use means that have a “real or substantial relation” to their goal.2^(p31) In this case, vaccination was a reasonable means to achieve the goal of controlling the epidemic. It was not an arbitrary choice; it had a real and substantial relation to preventing the spread of smallpox. (1)
• What Jacobson said,[ii] based on the scientific, moral, and ethical understanding of vaccinations and forced medicine extant in 1905, is that the police powers of state governments include the power to delegate to municipal governments the right to mandate vaccinations where, under a balancing test, the pressure of great dangers overrides individual liberty interests, and the regulation is reasonable. (2)
• The Court went on to acknowledge that “[t]here is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will.” 197 U.S. at 29. (2)

Interpretation

The Court was careful in its language. Therefore, it is important to understand what Jacobson does not stand for. (2)

• First, the case does not stand for the proposition that “the state has the power to literally take you to a doctor’s office and plunge a needle into your arm.” To the contrary, what the case demonstrates is that a person refusing to accept a vaccine may be convicted and pay a penalty. Jacobson was never vaccinated, which was why he was convicted. (2)
  
• Second, the case does not stand for the proposition that any statewide edict mandating vaccinations is valid. It instead stands for the proposition that a conviction for violating a locally promulgated ordinance mandating vaccinations under “pressure of great dangers” and under “reasonable regulations” may be upheld. Absent the pressure of great dangers or where regulations may be unreasonable, the Court specifically reserved the right to step in and strike down the law. Thus, the Court balanced the interests of the state in reasonably protecting its citizens from great danger against the individual liberty interest asserted by Jacobson, and under the circumstances presented, sided with the perceived interests of the common good against the liberty interest of the individual. (2)
• Third, Jacobson has nothing whatsoever to do with whether the federal government has the power to mandate a national forced vaccination program. Indeed, the case upheld an ordinance issued on the most local of levels, that of a local Board of Health. The validity of a national forced vaccination program is another question altogether, and would be a case of first impression by the Court. (2)

Aftermath

• Jacobson also predated the horrors of medical experimentation conducted under the Nazis of which the world only became aware after WWII during the Nuremberg Trials which led to the adoption of the Nuremberg Code. Among other requirements, the Nuremberg Code[iv] demands, (2)

“The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.” (2)

• The Declaration of Helsinki by the World Medical Association in 1964 provides that human subjects “must be volunteers and informed participants in the research project.” (2)
• In 2005, the General Conference of UNESCO adopted the Universal Declaration on Bioethics and Human Rights[v] further raising the bar for the practice of ethical medicine by stating that, “Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information.”(2)

Further Research

• Read the original Court Ruling here:

Media

Keyword

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