Most Americans haven’t heard of the Supreme Court case Jacobson v. Massachusetts. They’re about to.
There’s no vaccine for the novel coronavirus yet — but Heaven willing, there will be, and soon. The problem is that a potential vaccine is likely to be controversial, and not just because of anti-vaxxers or people who harbor curious opinions about the motives of Bill and Melinda Gates.
While most vaccines are developed and tested over a period of years, this one is being rushed out to be available as soon as possible. That’s going to lead to the belief — not unfounded — that there might be health risks associated with it that we don’t know about yet. There’s also going to be questions about its efficacy, particularly since the vaccine almost certainly won’t be anywhere near 100 percent effective.
This isn’t to say you shouldn’t receive a coronavirus vaccine. Barring serious concerns, this writer will certainly be getting one. However, he also understands why people wouldn’t get it — and why the government forcing people to get it is a bad idea, particularly when you consider the implications if something goes wrong.
Virginia Commissioner of Health Dr. Norman Oliver isn’t necessarily a believer in that philosophy. He thinks a COVID-19 vaccine should be mandatory for residents of the Old Dominion.
“It [the coronavirus] is killing people now, we don’t have a treatment for it and if we develop a vaccine that can prevent it from spreading in the community we will save hundreds and hundreds of lives,” Dr. Oliver told WRIC-TV.
“Virginia state law gives the Commissioner of Health the authority to mandate immediate immunizations during a public health crisis if a vaccine is available,” the Richmond, Virginia, ABC affiliate reported Friday. “Health officials say an immunization could be available as early as 2021.”
Given that there aren’t elections in Virginia until November of 2021, that means if you’re in Virginia, you’ll either be vaccinated or face a penalty. And if you think this is something that’ll go to the Supreme Court — well, it already has. In 1905.
In 1902, the state of Massachusetts was experiencing a smallpox epidemic. The city of Cambridge, under a state law allowing localities to mandate vaccinations, required all residents to receive inoculations against the disease.
Henning Jacobson, a Cambridge minister, refused the order. According to Jacobson v. Massachusetts — the case that bears his name — he “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.”
Writing for the high court’s 7-2 ruling, 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,” his decision continued. “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.”
(It’s worth noting that Harlan was no slouch when it came to civil liberties. He’s probably best remembered for being the sole dissenter in the high court’s notorious Plessy v. Ferguson decision of 1896, which established the “separate but equal” doctrine that formed the backbone of Jim Crow segregation in the South until the Brown v. Board of Education overturned it in 1954.)
That case only upheld a $5 fine for Jacobson. However, in a 1922 case, the court found the precedent had a wider application.
Writing for a unanimous court in Zucht v. King, a case involving a law that mandated children must be vaccinated before attending public school, Justice Louis Brandeis wrote that Jacobson “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.”
In short, it’s pretty much established case law that the government can force you to get a vaccination or impose a significant penalty on you. The problem comes in when you consider how misinformed the Virginia commissioner of health is when it comes to how easy this will all be.
For instance, at the moment, the Virginia General Assembly is considering a bill that would allow a religious exemption to any compulsory vaccination, but there are no guarantees.
“Oliver says he strongly opposes the bill,” WRIC reported. “He doesn’t know what the punishment would be for non-compliance but expects that most people will respond well to the mandate.”
I understand Virginia’s commissioner of health probably has quite a bit of COVID-19 reading material to slog through, but he ought to read polls occasionally.
On Aug. 7, Gallup published the results of an online tracking survey conducted among 7,632 respondents between July 20 and Aug. 2 regarding what percentage of American adults would be willing to receive a vaccine for the coronavirus. Only 65 percent said they would.
What’s news, however, isn’t how low that number is. It’s how high it is in relation to other surveys.
Consider a Yahoo News/YouGov survey administered online during the same period. It’s somewhat more limited in scope, consisting of 1,506 adults surveyed between July 28 and 30. However, it still found only 42 percent would get the vaccine.
And this isn’t just a matter of, as liberals might think, truculent Americans who refuse to wear masks. Consider Dr. Natalie Dean, assistant professor of biostatistics at the University of Florida. In an opinion piece for The New York Times, she wrote that signing on to take a vaccine before it was available was foolish.
“I’m a vaccine researcher, and even I would place myself in the ‘not sure’ bucket,” she wrote in the Aug. 3 piece.
“What we have right now is a collection of animal data, immune response data and safety data based on early trials and from similar vaccines for other diseases. The evidence that would convince me to get a Covid-19 vaccine, or to recommend that my loved ones get vaccinated, does not yet exist.”
But people will respond well to this, right?
This may be legally and constitutionally sound. Whether it’s morally sound is a different question. And this won’t stay hypothetical for long.
When a vaccine comes along, Dr. Oliver and the state of Virginia are going to discover the carrot of the vaccine is going to require an awfully big stick to get people to take it, much bigger than he or anyone else probably imagined.
When that happens, we’re going to find out exactly the kind of divisive, unenforceable hell Dr. Oliver has signed Virginia up for.
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