Coronavirus

When the Supreme Court Upheld a Compulsory Vaccination Law

Infectious disease, public health, and the Constitution

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Assume that a COVID-19 vaccine is invented tomorrow and soon becomes widely available. Most Americans will undoubtedly line up eagerly for a dose, but a small number may refuse. Do state governments have the authority to compel such refusers to get vaccinated on threat of punishment?

In Jacobson v. Massachusetts (1905), the U.S. Supreme Court confronted a state law that allowed local governments to require smallpox vaccinations when the local health authorities deemed them necessary. Cambridge resident Henning Jacobson balked at his city's vaccination requirement and was fined $5. He contested that penalty and took his case all the way up to the highest court in the land.

What was Jacobson's legal argument? In the words of the Court, Jacobson "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."

The Supreme Court rejected that argument. The 7–2 majority opinion, written by Justice John Marshall Harlan, agreed that the "power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons." But this case, he concluded, did not rise to that standard. The law was ruled to be a reasonable regulation.

"Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution," Harlan held. "Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the State to that end has no real or substantial relation to the protection of the public health and the public safety."

It would be one thing if Jacobson's health or medical history put him at risk of severe injury or death from the vaccine. To force such an individual to be vaccinated "would be cruel and inhuman in the last degree," Harlan acknowledged. But Jacobson "was himself in perfect health and a fit subject of vaccination." The requirement was therefore constitutional as applied to him.

Justices David Brewer and Rufus Peckham dissented. They presumably believed that Jacobson's liberty was violated by the compulsory vaccination law, but they kept their reasoning to themselves: They did not write an opinion.

Related: "Police Powers During a Pandemic: Constitutional, but Not Unlimited"

NEXT: Sen. Josh Hawley Wants a Bogus Criminal Investigation Into Amazon

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  1. 22 years later, the court cited Jacobson to say that “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” Tens of thousands of people were forcibly sterilized for the purpose of improving the human gene pool.

    1. Yeah, that seemed like a pretty good line to not cross but the Nazgul are all knowing.

      Both Roosevelt’s were the absolute worst.

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      2. Totally agree.

        One wonders exactly what state governments CANNOT make you do!

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    2. 30-40 yrs. later, the USPHS would be actively giving people syphilis and fraudulently “caring” for people who had syphilis… for science.

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  2. When the Supreme Court upheld a compulsory vaccination law… Ron Bailey ejaculated into himself

    1. Ron Bailey ejaculated into himself

      Not without asking his wife first.

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  3. So, is that case still ruling precedent today? I thought compulsory vaccination was now unconstitutional. How would one reconcile right to control one’s own body to include abortion but not right to refrain from vaccination? I would think protection from forced medical procedure would be stronger than the right to receive a medical procedure.

    Also, how would one view the constitutionality of requiring people to wear re-usable cloth masks? One the one hand, they endanger the wearer because of the risk of contamination unless the wearer is *extremely* diligent in handling the mask (washing hands before and after putting mask on and taking mask off, taking care not to touch mask while wearing, not placing mask on potentially contaminated surface, etc.) In addition, the efficacy in slowing spread to others is also questionable/mixed. It would seem that compulsory mask wearing is both unreasonably burdensome to the wearer due to contamination risk as well as having “no real or substantial relation to the protection of the public health and the public safety.”

    If the government can require vaccination and mask wearing, then can the government also require that people ingest bleach and take hydroxychloroquine, or eat broccoli, to combat a virus?

    1. How about this question: Will the Supreme Court of the USA find that an executive, either governor (Procurator is a better term) or president (Emperor is a better term), have the power to put an entire state under house arrest? If the answer is yes the what will they do with vaccinations? Understand that the government requires that juveniles can be put under house arrest and be vaccinated without the permission of the parents right now.

      1. And I have a feeling that if this was tried, there would be violence

        1. If what was tried?

          ” have the power to put an entire state under house arrest?”

          What do you think the stay at home orders issued by many of the state governors are. They are arresting people right now for going out for unapproved reasons.

          Where is the violence (other than that perpetrated by police enforcing this nonsense)?

          1. Not only is there not violence the majority agree with it! Willingly giving up their freedom and reporting those that don’t to the gestapo!

          2. Exactly.
            And the Germans have been criticized for decades for knuckling under to Hitler. We obviously would do the same in America under identical circumstances. Land of the Free, Home of the Brave? Hardly. Land of the Home Incarcerated, Home of the Cowards.

    2. SCOTUS doesn’t have to reconcile. They contradict themselves ALL the time!

      I could argue everything, with few exceptions, to be in the best interests of the public!

  4. If this is still precedent, I’d like to see how it holds up under the scrutiny of laws granting indemnity to vaccination pharms and the very shitty peer review and study industry in this country. I’d also think anyone contesting such tyranny to bring into the discussion the vaccination scandals from Nigeria, Kenya, and India (undoubtedly there are more).

    I am not a guinea pig. No one is sticking a shoddy vaccine where no one bears responsibility for negative consequences in me or my kids. All the rest of you erudite can go right ahead. I’ll hold out a few years and see how you fare.

    1. Correct. Glad you’ve done your homework.

    2. CLM1227 — Very good post.

    3. i’ve thought the same thing. I’m not anti vax by any standards. I have all the recommended shots (though i don’t get flu shots) and my kids have been given whatever doses of straight autism [;-)] the doc says. Nonetheless, if anyone thinks they are going to force us to get a rushed-to-market vaccine when no one suffers any fallout if its got issues…..they can pound sand.

    4. Here! Here! This is not to mention both the potential connection to autism mercury and aluminum stabilizers have or the ethical issues of a vaccine that uses either animal or human fetuses or is tested animals. Frankly, many states have a religious exemption to vaccines for good reason.

  5. Whoa, an article in Reason that *almost* acknowledges a government role when there are massive negative externalities (of choosing not to get vaccinated).

    Herd immunity requires very high % of the human population to be vaccinated, libertarian fantasies be damned.

    There will be a long line for the COVID vaccine, if there is one, so the paranoid and gullible can wait at the rear if they want to be extra sure the vaccine is safe, especially if there are fewer rounds of clinical trials and such. 200,000,000 getting the vaccine should be enough proof. If it isn’t, too bad.

    1. Herd immunity requires very high % of the human population to be vaccinated, libertarian fantasies be damned.

      Herd immunity, at any practical level, is between myth and self-fulfilling prophecy. It’s a fallacy that’s just assumed to translate up/down and/or survive ‘economies of scale’. When you talk about a model herd of cattle or sheep being 95% immune and achieving herd immunity, you’re talking about a relatively fixed number of animals that are relatively homogeneous in a relatively isolated region, with a relatively well-understood and stable contagion. Populations that are able to freely traverse the globe and subsection themselves into groups with varying levels of immunity/vaccination can’t achieve herd immunity or achieve a herd immunity that is dispelled or undone the instant 1, 100, or 1,000 people migrate in/out.

      1. How do you explain the eradication of smallpox?

        1. Isolation and contact tracing, not herd immunity.

        2. How do you explain the eradication of smallpox?

          Remind me again, what percentage of the world was vaccinated against smallpox?

          1. Is your argument vaccination isn’t necessary to eradicate infectious diseases?

    2. CV variants have been known for 50 years and cause about 15% of colds. If there isn’t a vaccine now, there isn’t going to be in a year.

      Nor do such vaccines have any staying power–the strains evolve too fast for the immunity to remain relevant.

      1. “strains evolve too fast for the immunity to remain relevant.”

        But evolution makes the disease itself less relevant. When a disease kill it’s host, it reduces it’s opportunities to spread to reproduce. In evolutionary terms, the deadlier the disease the less successful it will be.

    3. If you get vaccinated you are safe so what do you care?!? Unless you don’t trust the vaccine…

    4. There are no “massive externalities” from not getting vaccinated.

      And if you want to be at the front of the line for a COVID vaccine, go right ahead.

      I have no problem with proven vaccines that serve a purpose; a COVID-19 vaccine is pointless for 99% of the population.

  6. This article forgets to mention the reasons for the objection. Kids were DYING from the vaccination.
    Forced vaccination violates the Nuremberg Code.
    Anyone who calls themselves a libertarian and advocates state mandated medical treatment needs his head checked because he’s not a libertarian at all.
    I’m a nurse. There is more reason for healthy people to abstain from biologics than to take them. Start by asking for informed consent from your doctor by asking to look at the package inserts, something most docs have never bothered with.
    I have a good feeling that in the US today, a repeat of the above circumstance would get the 2nd amendment back in the forefront. And to add to this story, it also did so in 1905.

    1. Just what we need, another nurse lecturing on the harms of vaccines. *eyeroll*

      1. Just what we need, another ignorant liberal who erroneously thinks that “vaccine” is a thing, just like “GMO” is a thing.

        1. You really shouldn’t make assumptions about my beliefs, detracts from your arguments and makes you look foolish. Also, you’ll find many people on this site are classical liberals.

          1. Conservatives changed the meaning of “liberal” the year Hoover helped Germany rearm via the Moratorium on Brains. Also in 1931 the American Liberal Party wrote a repeal plank the Dems copied to win 5 consecutive elections. 1932 nesx accounts already show “liberal” used to mean “pro-repeal” and “unappreciative of Hitler.” Outside the USA liberal still means objectivist, libertarian or classical liberal–never Fabian socialist as in These States.

      2. That was actually more of a lecture on history and the law rather than a lecture on the harms of vaccines.

        1. A debate on mandatory vaccines is absolutely worthwhile. The commentator profession-dropping added nothing to strengthen their argument nor did overly emphasizing that children died from vaccines.

  7. Indemnity is an equaion changer. If big pharma has no responsibility for damage caused to me or society, I/we can have no compulsion to take it and no responsibility to society at large. Equal protection under the law! They don’t even have to list the ingredients or medium grown in anymore. I’m alergic to eggs. Nuff said.

    1. Do you eat cake?

  8. >>Most Americans will undoubtedly line up eagerly for a dose

    doesn’t seem like a very good idea at this point if ever

  9. And if there are substantive medical remedies for Covid, will compulsory vaccinations still be upheld?
    What if medically treating Covid would likely result in a much longer-lasting immunity than a vaccine would?

  10. Didn’t Dr. Fauci – Hero to the left – say a vaccination is possible in January? My problem with this is they will enforce lockdowns to various degrees until then.

    I know one thing. I ain’t lining up for one and sure as hell won’t give it to my daughter. I worry it will be mandated. I think this pandemic has shown the authorities basically can have their way with the people who have willingly turned into sheep.

    The fall out of this pandemic will be horrible where civil liberties are concerned. It’s one thing to have the Patriot Act but a medical equivalent to this will be HORRIFIC. And it will last for decades before it ever gets repealed and in the process doctors – and it’s the sociopath variety who will gain power and influence – will use humans as guinea pigs for whatever ideas they have.

    We won’t need comic books to read about villainous scientists. They will be a reality if we don’t WAKE THE FUCK UP.

  11. If this virus is similar to the flu, a super-fast mutator that is slightly different every couple of years, they’ll never come up with a 100% vaccine for it because that will be impossible.

  12. Is Reason intentionally skewing editorial here or are they lazy at researching this subject?

    First – the original finding was vaccinating an individual, not a population. Courts have continued to use it (unchallenged) to continue to broaden the encroachment of government. But the original ruling entirely hinged on 3 elements. First that the compulsion (fine or imprisonment) was “reasonable” for general health. Second that vaccinations would protect the greater population. And third, that the legislating body had done exhaustive research to conclude that opposing theories were investigated and dismissed.

    The #1 contributor of congress are pharmaceutical companies that make an average 440% return on vaccine investments since the 1986 Vaccine Act literally removes ALL LIABILITY from them. We’ve already cataloged Hillary Clinton giving away 20% of the US’s strategic uranium supply for hundreds of millions back to the Clinton Foundation and NO prosecution or investigation by her party which ran the DOJ. ARE WE SURE CONGRESS HAS ORIGINALLY VETTED ALL SCIENCE? (And why do we think they are equipped to make a medical judgement in the first place.) ARE WE SURE CONGRESS ISN’T BEING SOLD to the highest bidder? Pharmaceutical companies also make up 70% of the revenue of mainstream media news budgets. I wonder why Hydroxycholorquine and azithromicin – which has been in the marketplace for 35+ years with little complication and costs less than $2 a dose is lambasted on ABCNNBCBS (with 4 clinical studies showing a 96% or better success rate) but Gilead’s Remdesivir which costs 1,000 a dose has 1 public study in China showing it has a higher rate of death but every news organization is giving it glowing reviews before results of the NIH study is even released?)

    The presumption that vaccines are “a miracle” as Bill Gates says is interesting because not only was US measles mortality PRIOR to the MMR vaccine was only 2 in 1 million (now it is 2 in 1,000), the CDC was forced to admit in court last month that they have ZERO studies to make their claim on their website saying autism is NOT caused by this vaccine or the combination of any of the 48 to 63 vaccinations now reccomended by the CDC. (Which actually makes money from many of those patents by the way.)

    DOES it make a population safer?
    It should first be noted that Jenner actually tested cowpox on his son and a neighbor boy who both developed extreme weakened immune systems. Both died before they were 21 of tuberculosis. It is a published medical truth still, that smallpox vaccines increases the risk of tuberculosis dramatically.

    England made smallpox vaccination mandatory in 1853 with fines and imprisonments enacted by 1857. According to official records of the REGISTER GENERAL OF ENGLAND, between 1857- 1859 there were over fourteen thousand (14,000+) deaths from smallpox. From 1863-1865 there were over 20,000 deaths from smallpox. Then between 1870-1872 there were over 45,000 deaths from smallpox. The vaccine literally created massive outbreaks and pandemics.

    Massachusetts mandated the smallpox vaccine in 1855 and the same thing happened. There were epidemics in 1859, 1860, 1864, 1865, 1867 and an enormous outbreak in 1872-73. Similar outbreaks suddenly happened wherever vaccinations were mandated in Germany, Japan, Scotland, Ireland, Sweden, Italy, Austria, and Holland.

    Dr. Suzanne Humphries documents this in her book DISSOLVING ILLUSIONS, especially noting the town of Lester, England.

    They had a 95% infant vaccination rate but had some of the worst outbreaks in all of England. The population demonstrated with 80,000 attendees and decided they would stop vaccinating – instead using quarantine of the infected with disinfectant of their homes. Lester’s death rate AND outbreak rates PLUMMETED and ended up having the lowest death rate and outbreak rate of any town in their region of England.

    ( Go do your research.)

    1. Before 1963, approximately 500,000 cases and 500 deaths were reported annually, with epidemic cycles every 2–3 years. However, the actual number of cases was estimated at 3–4 million annually. More than 50% of persons had measles by age 6, and more than 90% had measles by age 15. The highest incidence was among 5–9-year-olds, who generally accounted for more than 50% of reported cases.

      In the years following licensure of vaccine in 1963, the incidence of measles decreased by more than 95%, and 2–3-year epidemic cycles no longer occurred. Because of this success, a 1978 Measles Elimination Program set a goal to eliminate indigenous measles by October 1, 1982 (26,871 cases were reported in 1978). The 1982 elimination goal was not met, but in 1983, only 1,497 cases were reported (0.6 cases per 100,000 population), the lowest annual total ever reported up to that time.

      https://www.cdc.gov/vaccines/pubs/pinkbook/meas.html

    2. PolitiJim, you are apparently the lazy one. Your research is obviously flawed. Death rates from measles and smallpox are very low, and were much higher before vaccines. Nothing you posted is actually true or its skewed in a way without context or presenting the entire case history of both diseases. Why did you come here to lie to us?

      1. You also need to do your research. Death rates from measles decreased because of better health and better healthcare.Meaning, in countries with good healthcare, today, even the unvaccinated have a very low risk of dying from measles.

        I suggest you do some reading to find out why measles vaccination became widespread. It is a useful vaccine, but not for the simplistic reasons you think.

  13. Aren’t vaccines providing for the common defence?

  14. If the vaccine is effective then there should be no fear of catching anything from those that don’t wish to be vaccinated. And since most of these vaccines have a very low success rate you are mostly getting a false sense of protection.

    1. And many vaccines use a carrier called thimersoral which is 50% mercury. Yeah…just what I want to do…shoot up some crap laced with mercury…fuck that…sheeples, carry on without me.

      1. And most fruit has arsenic, or cyonide!
        And salt is 50% sodium which is combustible with water, and 50% chlorine, a poisonous gas! Which is why I consume neighter! I only drink pure grain alcohaul and distilled rain water, they are not going to infiltrate my bodily fluids

  15. That description of the Supreme Court ruling was way off the make. The 1905 ruling stated that vaccines(inoculation in that specific case) couldn’t be completely mandatory, but the state could reasonably fine you if you chose not to get vaccinated. That is why public schools can require children to be vaccinated, but if they are not…these children are either home schooled or attend a private school. The state can’t force vaccinations.

  16. It should be noted that the Smallpox mortality rate is approximately 30% and probably was much higher in 1905. The Smallpox vaccination (which I still have a small scar from) was very effective, although it did have a complications (including death) far higher than say the annual flu vaccine. However, the most recent flu vaccine has been estimated at only 50% effective.
    All that being said, I am not holding my breath for an effective Covid-19 vaccine. The medical establishment has been working on a vaccine for the original SARS for 17 years.
    Considering the mortality rate from Covid-19 in the USA is unknown but probably much less than 1% and the mortality rate for those under 65, with no other heath problems, is almost non-existent, I cannot conceive on anyone proposing mandating anyone taking the Covid-19 vaccine–if it is ever developed.
    Nevertheless, if a vaccine is developed, I personally would take it but I am not remaining isolated until that time.

    1. “We cannot conceive of conscription as involuntary servitude” sums up another Supreme Court decision, no?

  17. The SCOTUS didn’t explain how “the health of all” is threatened by rights. The purpose of rights and their protection by govt. is to ensure “all men are equal”, i.e., politically equal. If the SCOTUS puts some other standard forth that trumps rights, it is their responsibility to justify that. They didn’t. They didn’t explain how the collective is threatened by the individual, on principle. Even practically, refusal to be vaccinated can’t endanger the vaccinated.

  18. 1905 was a prohibition fanaticism year in part because of the Chinese boycott in protest of unlabeled mail-order morphine nostrums. Collier and The Ladies Home Journal trotted out Drug Slavery and Poisoning articles while lobbyists went for a Pure Food (in practice, prohibition) law that took effect and wrecked the economy in 1907. Small wonder coercive eugenics were such a hot item in These States when Adolf Hitler was but an impressionable youth of 16.

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