In the pantheon of Supreme Court cases, Jacobson v. Massachusetts doesn’t exactly get a whole lot of play.
It’s certainly not one of the precedent-setting rulings your average high school American history student can name — Roe v. Wade, Plessy v. Ferguson, Brown v. Board of Education, Obergefell v. Hodges.
It doesn’t even make the second- or third-tier of cases that you might potentially be aware of, judgments such as Loving v. Virginia, Korematsu v. United States, Mapp v. Ohio, Hamdan v. Rumsfeld, that sort of thing.
That could be about to change, Dov Fox says.
Fox is the director of the Center for Health Law Policy and Bioethics at the University of San Diego. He told KGTV-TV that if and when a vaccine for the coronavirus is developed, you could be fined and even jailed for not getting it.
“States can compel vaccinations in more or less intrusive ways,” he told the San Diego ABC affiliate.
“They can limit access to schools or services or jobs if people don’t get vaccinated. They could force them to pay a fine or even lock them up in jail.”
That precedent goes back to Jacobson v. Massachusetts, a 1905 case in which the court ruled that it was within the police power granted to the states to enforce vaccination laws.
The particular case involved a Cambridge, Massachusetts, law requiring residents to submit to a smallpox vaccination during an outbreak of the disease.
The defendant in the case, the Rev. Henning Jacobson, “refused to submit to vaccination for the reason that he had, ‘when a child,’ been caused great and extreme suffering for a long period by a disease produced by vaccination, and that he had witnessed a similar result of vaccination not only in the case of his son, but in the cases of others,” according to the decision.
In a 7-2 ruling, the court upheld Jacobson’s conviction.
In his decision, Justice John Marshall Harlan wrote that “as to an adult residing in the community, and a fit subject of vaccination, the statute is not invalid as in derogation of any of the rights of such person under the Fourteenth Amendment.”
“The safety and the health of the people of Massachusetts are, in the first instance, for that Commonwealth to guard and protect,” Harlan wrote.
“They are matters that do not ordinarily concern the National Government,” he wrote. “So far as they can be reached by any government, they depend, primarily, upon such action as the State in its wisdom may take, and we do not perceive that this legislation has invaded any right secured by the Federal Constitution.”
“Courts have found that when medical necessity requires it, the public health outweighs the individual rights and liberties at stake,” Fox said.
For the most part, Jacobson hasn’t been a particularly high-stakes ruling, although it has had some significant implications.
It laid the groundwork for laws where public schools can require childhood vaccinations, for instance; in a 1922 case, Zucht v. King, Justice Louis Brandeis wrote for a unanimous court that the case “settled that it is within the police power of a state to provide for compulsory vaccination” and “also settled that a state may, consistently with the federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative.”
However, it’s likelier than not that Jacobson is about to join the pantheon of Supreme Court cases pretty much every American can name.
That’s because not every American plans on getting a COVID-19 vaccination if and when it becomes available.
A Gallup tracking survey of 7,632 adults taken between July 20 and Aug. 2 found that only 65 percent would get the vaccine compared with 35 percent who wouldn’t.
Unfortunately, then, we would be dealing with state governments across America deciding whether to levy fines or — to take America into deeper waters — jail time to those who refuse to be vaccinated.
That’s never been done in the United States, Fox said, although other countries, including France, have already tried it.
What’s clear is there are some governors who might be willing to go that route, particularly given the draconian measures we’ve seen in areas where the constitutional waters are much murkier.
Jacobson makes it clear, however, that vaccination laws are the police power of the state. How far states will go is another issue entirely. That’s a real problem.
Large numbers of Americans have a serious aversion to vaccines right now.
Consider this: We now live in a state of fear and relative penury because of the coronavirus. Over 170,000 Americans have died of COVID-19, according to Johns Hopkins University data. The entire world is now on the brink of depression. Millions of Americans were filing jobless claims every week in the immediate aftermath of the lockdowns.
Yet, when a vaccine becomes available to presumably help put an end to this state of affairs, 35 percent of Americans still wouldn’t take it.
One would guess they’d be worried about the potential side effects, given that the vaccine would have been developed in such a hurry. A much smaller percentage could have more paranoid reasons for not taking the vaccine.
How, exactly, would states plan on enforcing any Jacobson-backed law? Are we going to fine or jail what could be 35 percent (or more) of the population? Would states throw that kindling onto the fires of division?
This is a bridge we’re eventually going to have to cross.
That doesn’t mean refusing to get a vaccine for the coronavirus is necessarily intelligent. In fact, if it’s safe and effective, it likely wouldn’t be.
It shouldn’t be an offense that leads to serious fines or jail time, however.
Eradicating freedom to eradicate a disease leads us down a dangerous path — one we can’t necessarily find our way back from once COVID-19 is, one prays, a distant memory.
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