The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
At Verdict, Mike Dorf considers whether the state and federal governments could require people to receive the COVID-19 vaccine. He writes that the leading precedent is Jacobson v. Massachusetts (1905).
Could government mandate vaccination for people who lack valid medical reasons why a generally safe and effective vaccine would pose an unacceptably high health risk for them? A 1905 Supreme Court opinion—Jacobson v. Massachusetts—says yes.
The law at issue in Jacobson did not impose a vaccine mandate. Rather, people who refused to receive the smallpox vaccine had to pay a $5 fine. (About $150 in present-day value). And the failure to pay the fine would result in a jail sentence. But the state lacked the power to jab a syringe in the offender's arm. The Massachusetts Supreme Judicial Court observed, "[i]f a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of the penalty of $5."
In short, the failure to comply with the mandate required the payment of a penalty. And being forced to pay a nominal fine does not invade any "fundamental right." This model resembles the Affordable Care Act, as construed by Chief Justice Roberts's saving construction in NFIB v. Sebelius. People are not mandated to purchase insurance; rather, those who fail to purchase insurance must pay a tax-penalty
Mike's reading is a very, very common misreading of Jacobson. Indeed, Mike is in good company. In Buck v. Bell, Justice Holmes misread the scope of Jacobson—a decision that he joined. Justice Holmes analogized government-compelled sterilization to government-compelled vaccination. Holmes concluded that "the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes." But Jacobson did not actually sustain "compulsory vaccination."
Jacobson, standing by itself, will not support a vaccine mandate. If the state or federal governments wish to forcibly vaccinate people, they will have to rely on Buck v. Bell. That anticanonical case upheld the state's power to forcibly perform medical procedures on people to promote the public good. Roe v. Wade favorably cited Buck to support this proposition. In Roe, Justice Blackmun contended, the state retains the authority to force a woman to maintain a pregnancy for, among other reasons, to "protect potential life." Justice Blackmun explained that "[t]he Court has refused to recognize an unlimited right" "to do with one's body as one pleases." To support this proposition, Justice Blackmun cited two cases, with one-word parentheticals: "Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (vaccination); Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927) (sterilization)."
I discuss this history of Jacobson in my new article, What Rights are "Essential"? The 1st, 2nd, and 14th Amendments in the Time of Pandemic.