Every person must be subject to many restrictions in order to achieve the common good. Read the majority opinion. Without these restrictions, an organized society would not be able to provide safety for its members. A society that believes each member is a law for himself will soon face chaos and anarchy.
Jacobsons claim was essentially identical to that of vaccine skeptics today. That they have the right under the U.S. Constitution, to make their own decision about whether or not to get the shot. Jacobson, who was supported by The Anti-Vaccination Society made a compelling case. He used many of the same arguments regarding freedom from government interference that were being tossed around cable TV this summer and are being uttered by politicians. After recommending that his supporters be vaccinated at a rally in August 21, Donald Trump quickly added, prompting boos. That must be maintained.
The Supreme Court and any other court has not yet decided whether these freedoms would include the refusal to use a legally mandated Covid-19 vaccination, should any government decide to do so. In the unlikely event it does, Henning Jacobson's 116-year-old case would serve as the legal precedent. Today's court will have to consider the changing medical landscape and the current political environment when deciding whether the Jacobson rules for smallpox should be applied to Covid-19. Justice John Marshall Harlan, who wrote the opinion would be a legacy to the justices.
Harlan, who is well-known for his principled dissents and for advocating Black rights in the late 19th century, wrote this case for a clear majority. Harlan concluded that real liberty could not exist without a principle that recognizes each person's right to use his or her property regardless of any injury to others.
This last sentence is Harlan's classic, removing all the nuances and caveats in order to get to the core of justice. In a moment when vaccine skeptics are causing new outbreaks, and inviting the creation variants that can penetrate the defenses of fully-vaccinated people, Harlan's balance of vaccine rights against the rights to the community seems particularly compelling. His thinking may have particular resonance. Today's justices, liberals and conservatives alike, are deep admirers Harlan.
Because of my book, Harlan: The Great Dissenter, I was inspired to study the 1905 Massachusetts court decision in Jacobson. The book, as the title implies, focuses on Harlan's dissents and not his majority opinions. What struck me was not just the contrast in Harlan's principles being expressed in majority opinions or dissents but also the degree to which the Jacobson case was so relevant to current discussions about Covid-19.
Harlan's concept of competing freedoms could help to transform the ongoing debate about vaccine mandates. This is possible now that the FDA has approved all vaccines. He offers a strong rebuttal for those who believe personal liberty only applies when someone is forced to vaccinate. The Jacobson holding suggests other people have a similar liberty interest in being immune to infectious diseases, whether they are co-workers, classmates, or neighbors. They are also affected by decisions made by others, just like passive smokers.
The courts' rulings make it clear that any community in danger has every legal right to defend itself.
The great plague of the 20th century was smallpox. It was a deadly infectious disease that claimed nearly a third of all those who were infected. Vaccines were the main source of protection. They were safe in most cases, but some people got sick from them.
Henning Jacobson was apparently one.
On Nov. 17, 1904, the Evening Herald of Fall River in Massachusetts painted this picture: He was born in Sweden, and was in good health until he was vaccinated. Six days after receiving the vaccine, he developed a severe rash that lasted for many years. Jacobson advised his son, 18, to get the vaccine. However, the boy was threatened with losing their job if he did not protect himself from smallpox. Jacobson also suffered from side effects and had to keep his arm in a sling during six months.
Jacobson asserted in court papers that smallpox vaccine impurities can cause injury or even death for certain people, based on the fact that both his son and father had experienced adverse reactions. Jacobson brought a variety of medical claims to court. These claims would all sound familiar to vaccine skeptics today. They range from reasonable assertions that vaccination can't be predicted in any particular case to more absurd claims such as vaccination causes deadly diseases. Statements that are technically true, but have more than a hint of conspiracy like vaccination not only prevents smallpox, but also spreads it.
Jacobson promised to prove all of those statements true, but the courts refused.
To prove these propositions, the only credible evidence that could have been presented to court was the testimony of experts. Harlan cited the Supreme Judicial Court of Massachusetts decision. If medical experts were able to testify in support of these propositions then [the court] would have had to examine the evidence in relation with facts of common know, which the court will always consider when deciding on the constitutionality of a statute.
The court stated that these facts include the fact that almost all members of the medical profession considered vaccination, repeated after intervals of time, to be a preventive against smallpox. That, while they recognized the possibility that an individual could inflict injury from their performance, or, in a possible case, without carelessness, they generally thought that the risks of such injury were too small to consider the benefits of discreet and proper use.
