Jacobson v. Massachusetts did not uphold the state's power to mandate vaccinations.

Massachusetts fined people who refused to get vaccinated. But the Supreme Judicial Court recognized it was "not in [the state's] power to vaccinate [Jacobson] by force."

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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.

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  1. Theres really no need to do this for COVID, if you want a vaccine go ahead and get it if not don’t and roll the dice that another unvaccinated person passes it to you. Unlike their excuse for other vaccines the ones who are at risk can simply get the vaccine themselves.

    Having said that I’m sure they’ll come up with some cockamamie excuse or tortured reading of the data to force it on everyone just like we’re supposed to do everything we can to mitigate climate change yet we ignore tech like nuclear power in favor of top down laws enforced on people since its always been about control not whatever the issue du jour is be it global warming or Covid

    1. I’m not sure you understand how this stuff works.

      1. Stop signs, center lines, traffic lights, ‘no parking in intersection’ rules . . . modern America society is a flaming hellscape for those whose guidestar is ‘you can’t make me.’

        We don’t physically stop someone who is running a red light or a stop sign. But society can, should, and generally does handle dangerous drivers — and not by shrugging and deciding, ‘if you want to ignore stop signs, go ahead.’ Our society can handle selfish misfits in the context of vaccination, too.

        1. Because we’re doing such a great job with the existing anti-vaxers of all political stripes?

          I’m in favor of Darwinism. If a vaccine is 90+% effective and enough people take it voluntarily, I’m perfectly happy for the people who refuse to contract a disease that threatens their life, as long as I’m protected.

          1. This assumes 100% availability. That’s unrealistic. Heard immunity protects any who are not intentionally avoiding a vaccine but nevertheless miss it.

            1. “Heard immunity protects any who are not intentionally avoiding a vaccine but nevertheless miss it.”

              What? Herd immunity does not care whether you intentionally avoided a vaccine, or just forgot, or even had a real medical excuse. It’s like strict liability.

              (I know someone who is a principal of a private school, which required EVERY child to get vaccines. One child, however, was on chemotherapy for cancer, and because her immune system was severely compromised, the doctors recommended not to immunize. So the school made an exception for her, as everyone else was vaccinated, and there was herd immunity.)

              1. rsteinmetz was espousing an individual responsibility model of vaccination benefits. That’s what I was speaking to with who herd immunity benefits and thus why vaccines should not be viewed as an individual risk mix.

          2. 1. 90+% is not 100%. Some people who took the vaccine will still be able to get it because of those who choose not to.
            2. As with any vaccine there will be contraindications where people have an underlying condition that makes the vaccine unsafe to them.

            You say your fine “as long as [your] protected] but you aren’t assured protection by a vaccine alone.

            I’ve always struggled with mandatory vaccination. My usual bend is government shouldn’t be involved with medical decisions, but at the same time I’m someone who says your rights end at someone else’s nose.

          3. It isnt darwanism. kids can’t get vaccinated yet. The vaccines havent been tested on kids. So the anti-vaxxers wont be the only ones getting sick and dying.

        2. Yes, because regulation of how you drive/park a car is the same thing as requiring injection of foreign matter into your body.

          1. It’s not the same thing, and a ‘no driving on public roads unless vaccinated’ doesn’t require injection of anything.

            Fines, restrictions on use of public spaces (stores, roads, airports, public buildings, restaurants), and other measures could promote public health, encourage vaccination, and avoid infections without involving forcible injections.

  2. I would have thought the government putting someone in jail if they didn’t do something would be a mandate, but I guess I didn’t go to a law school so bad it got sued for trying to steal another law school’s name.

    1. I assume this is actually a tax.

      1. LOL.

        Seriously, though, a fine and possible prison time is a real mandate. Indeed, this is the way the government often mandates stuff.

    2. Apparently, Josh believes that the Massachusetts law at issue in Jacobson was not a mandate

      “The law at issue in Jacobson did not impose a vaccine mandate.”

      And was a mandate:

      “In short, the failure to comply with the mandate required the payment of a penalty.”

      I guess you can’t be wrong if take both sides of a position.

  3. Its not necessary because of science. We only need to reduce the R0 number for COVID below the value 1.0 and the virus will die out. We could achieve that if most people get vaccinated. It’s not necessary to force all people to get vaccinated.

    “The reproductive number of a virus, or R0, is the number of people, on average, that one infected person will subsequently infect. “

    1. There are very large society-level differences between R0 of 0.3 and 0.999. Even though both satisfy your R0 < 1.0 criterion, and in the long term both lead to eradication of the disease, the first is very slow in comparison. Assuming typically two weeks of infectious time, which is probably longer than actual for COVID-19, the first leads to worldwide eradication within 10 months while the second still has 95% as many cases after two years.

      1. Michael P., how do you do those calculations? I would not be able to show my work if that was a test problem and I am curious.

        1. Simple version: suppose you start with 100 infected people and an R0 of 0.5 … after the first time period (specified as two weeks here) the original 100 will have infected 50 people. In interval 2, those 50 will infect another 25, and so on.

          In general, the number of infected people in time interval N is R0**N.

          So with R0 of .999 and two years (52 two week periods), .999**52=0.9493, i.e about 95%.

          R0=0.3 and 10 months (== approx 20 two week periods) gives 0.3**20=3.5e-11, which (if I typed in the right number of zeroes) is smaller than 1/(7billion), i.e. less that 1 person on earth.

          (Note that as the numbers get pretty small, the fraction that are infected starts to vary probabilistic (to be pedantic, it is always random, but with a small variance for large numbers), 52 weeks is slightly less than a year, yadda…)

          1. Yes, exactly. Thank you.

            1. Thanks Absaroka, Michael P.

      2. Your calculation doesn’t account for R0 dropping over time due to increasing exposure immunity.

        1. Technically, R0 doesn’t change over time. But also technically, the question implied use of the effective reproduction number rather than the basic reproduction number, and the former is written R or Rt or Re instead of R0. Rt does change over time, but so far we’ve averaged a bit over 1.5 million cases per month, and 24 months at that rate would be about 10% of the population. That’s small enough that I am willing to approximate Rt as constant over that time.

  4. “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.” “And being forced to pay a nominal fine does not invade any ‘fundamental right’.”

    Exactly. But… does the coercive power of a mandate invade a fundamental right? That is, can one’s religion be _effectively_ stamped out by the government’s power to shun those who disobey its mandates? Can the power of “positive eugenic” efforts be as invasive as that of forcible sterilization and other “negative eugenic” efforts?

    These questions, too, arise when discussing the PPACA.

    1. Well the affordable car act did not say a nominal fine, it actually ok fines in general since congress power to tax is near unlimited. When it comes to religious freedoms the government isn’t as limited as you might think. Especially if its done through a fine or a restriction of schooling. Any case were the government mandates a vaccine will have an easier time being upheld if it’s done by the state than the federal goverment. Yet it wouldn’t be impossible for the federal government to get it done.

  5. It is not clear to me that the case actually holds that the legislature could not pass a statute which compelled vaccination by force if necessary. The language quoted — “If 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” — may just be the court’s description of the extent of authority conferred by this particular statute, rather than the court’s resolution of the question (apparently not presented here) of whether compelled vaccination could be lawful.

    (Whether a legislature could or should compel vaccination by force are separate questions. I am inclined to answer that they could: if the police can grab you before you jump to your death from a bridge, they can vaccinate you. I tend to think that a program of compelled vaccination by force is not a good idea, however.)

    1. Correct: in context it is clearly saying that the statute didn’t give the state the authority to forcibly vaccinate, not that it would be unconstitutional if it did. Also note that the quote is from the lower court decision that was reviewed by the Supreme Court: the Supreme Court opinion doesn’t contain any analysis as far as I can tell on the question of punishing people for violating the mandate versus actually physically forcing them to comply. Nor does Prof. Dorf’s post.

      In other words, it’s yet another example of Prof. Blackman mistaking contrarianism for erudition and insight, notable only for the fact that he’s. It actually contradicting anyone.

  6. I wonder if the Professor’s classes include any mandatory assignments, and if so what methods he uses to forcibly extract the work from dilatory students.

    1. Does he require broccoli consumption?

      Or prohibit broccoli consumption?

      1. no, but his exams do include things like Lincoln being impeached for freeing the slaves.

  7. This post Prof. Blackman is interesting and informative and a nice contribution to the discussion. The simple analysis is that yes, government, particularly state government can mandate the vaccination, but the allowed penalty for a person violating the mandate is monetary, not forced injection.

    One would think that in a society such as the U. S., where a large majority of the citizens are supposedly compassionate religious Christians or Orthodox Jews there would be no problem with people voluntarily being vaccinated. But as we have seen in the masking arena, many of those people are hypocrits. So one solution might be that no, you do not have to get vaccinated, but if you get Covid you will be left on your own, no treatment or anything and if you suffer and die, well that was your decision.

    1. I’ve heard the argument before about not providing treatment for people who refuse vaccinations also applied to not treating smokers who refuse to quit, motorcyclists who refuse helmets, or drivers/passengers who won’t wear seatbelts, so only they incur the cost of their foolish decisions. Problem is that doctors have taken an oath to treat everyone.

      1. A further problem is that this is unreasonable, unenforceable, and highly selective as to who it punishes.

        If you get diabetes from an unhealthy diet, or heart disease from that and refusal to exercise, how are we going to deny treatment?

        If you are in a car accident because you were speeding do we not send an ambulance?

        It may sound like a libertarian approach, but it’s the exact opposite, because it involves monitoring everyone’s lifestyle to decide if they get medical treatment when they need it.

        OTOH, suppose you don’t get vaccinated, for no good reason, and then demonstrably infect someone else. Should you face some liability, as you would if your careless driving caused harm? The “demonstrably” is tough, of course, but what about in principle?

        1. The comment had nothing to do with speeding, or eating or smoking, it was specific to not taking a vaccine.

          The problem with this libertarian attitude with respect to issues like the vaccine, and whether or not to obtain health insurance is that those who select that route are unwillilng to bear the cost of their behaviour, they want it both ways. They want to exercise their individual freedom with respect to health care, but then when they get sick because they did not have the vaccine or cannot pay because they did not purchase insurance they want to be taken care of just the same.

          These people are not exercising freedom, they are exercising their right to freeload, to live off the earnings of others, the be a parasite on society.

  8. “Good Company” vs. “Justice Holmes”

    Pick one.

  9. “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.”

    1) Does compulsory = forcibly?
    2) Does Dorf’s “vaccine mandate” entail compulsion or force?

    Josh is interchanging terms that have distinctly different meanings in the context of the issue. And Dorf, while asking whether a “mandate” could be enacted, doesn’t actually clarify whether said mandate would include compulsion or force. By compulsory, I will assume the OED’s definition of “required by law or a rule; obligatory.” By force, I am referring here to physical action, such as a person physically restraining another and then physically injecting them with a syringe. The Massachusetts law at issue in Jacobson was, as stated in the Court’s opinion, a “compulsory vaccination law.” It was not, however, a “forcible vaccination law.” The question for Dorf then, is whether he is talking about a vaccine mandate that would involve compulsion (such as a fine) or force (physically administering the vaccine to those who refuse).

    See how easy it was to identify the issue underlying the disagreement from the two speakers? Defining key terms is quite helpful to the reader, although I recognize that conceptual vagueness has its value in the rhetoric of legal argumentation.

    1. Yet I think Blackman missed an important case. Korematsu, which goes into what the government must prove to beat strict scrutiny. A compulsory covid law may actually comply with strict scrutiny. Government must have a compelling government interest and it must be narrowly tailored. In this case the governments interest will be public safety and its answer will be a vaccine which is the least restrictive means to achieve it. heck, i think this has a better chance of standing than the stay at home orders.

      Plus, the court in Jacobson was answering the question is a compulsory vaccination law legal. The fine in jacobson would have made the vaccination mandatory for a huge segment of massachussets population. Which is why the supreme court applied a heightened standard to it.

      Blackman is flat out wrong. His argument breaks down to something like this. ogbergerfell said that two men could marry. That dosent mean you have to give a marriage license to two women because the facts dont line up. The court is gonna use Jacobson as precedent that states that a state government can force its citizens to have vaccinations.

  10. I actually tend to agree (including the cite to Buck v. Bell) with one caveat. Assuming there’s a right to bodily autonomy that would protect oneself against compulsory vaccination, it would presumably not be an absolute right but would, instead, follow the normal judicial rubric of some level of scrutiny. At a minimum, I think many states would argue they have a compelling interest in vaccination.

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