The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last month I wrote two posts about the precise holding of Jacobson v. Massachusetts. That case did not uphold the state's power to forcibly vaccinate a person. Rather, Justice Harlan's 115-year old opinion affirmed that the state could offer people a choice between paying a nominal fine and receiving the vaccine. Justice Gorsuch echoed my understanding of Jacobson in Diocese. And I haven't seen anything to the contrary written elsewhere. If you'd like to dive deeper, I discussed Jacobson on the Lawfare podcast.
Earlier this week, a bill was introduced in the New York legislature that would impose an actual COVID-19 mandate. It provides, in part:
. . . if public health officials determine that residents of the state are not developing sufficient immunity from COVID-19, the department shall mandate vaccination for all individuals or groups of individuals who, as shown by clinical data, are proven to be safe to receive such vaccine.
This bill does not say that the failure to receive the vaccination is a crime, which can be punished by a fine, or even incarceration. The statute says that the "department shall mandate vaccination." In this context, shall means must. To paraphrase the controlling opinion in NFIB v. Sebelius, "The most straightforward reading of the mandate is that it commands individuals" to receive the vaccine. There is no possible saving construction here. This bill authorizes the government to jab a person in the arm with a vaccine.
Jacobson does not provide support for this law. Again, the law at issue in Jacobson was not a true mandate. The Massachusetts Supreme Judicial Court's opinion in Commonwealth v. Jacobson "[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."
Diocese thankfully cleansed Jacobson from the judicial cannot with respect to lockdown cases. I hope judges do not lazily cite Jacobson in a future vaccination cases. If you want a precedent about the state forcibly performing medical procedures on people to promote the common good, look to Justice Holmes's opinion in Buck v. Bell. Justice Blackmun cited Holmes for that precise proposition in Roe.
And what about a Free Exercise challenge? The bill does include a "medical exemption," but it lacks any religious exemption. Would this rule still be one of general applicability? I need to give this issue some thought.