Vaccination Mandates and Liberty in the Legal System

Vaccination Mandates and Liberty in the Legal System

Author Katherine O’Connor, They/Them Brookline High School, Class of 2021 Brookline, MA

Mentor Marcie Miller Legal Studies Teacher Brookline High School

Editor Zoe Tseng, She/Her Brookline High School, Class of 2021 Brookline, MA

Reviewer Alexandra Wood Law Fellow Berkman Klein Center at Harvard University

With COVID-19 rampant in the United States, the issue of mandatory vaccination has

recently been on the minds of many —especially vaccine skeptics and the so-called “anti-vaxx”

movement (Young and Hagan). However, the question of how much power the government has,

or should have, in mandating vaccinations is not a new one. Since the first smallpox vaccine was

manufactured in the late 18th century, opposition to vaccinations has been steadfast. But it

greatly intensified after Dr. Andrew Wakefield’s 1998 publication falsely linked the measles,

mumps and rubella (MMR) vaccine with autism (Rao and Chittaranjan). However, countering

vaccine skeptics has been the United States’ legal system, most notably in its precedent setting

1905 ruling in Jacobson v. Massachusetts. Through Jacobson, the Court established a reasonable

precedent for mandatory vaccinations, however, its ruling has been unreasonably

recontextualized by the 5th Circuit Court of Appeals (In re: Gregg Abbott) through its approach

to abortion restrictions during the COVID-19 pandemic in a way that unjustly impinges on civil

liberties. Applying this case that deals with mandatory vaccinations to abortion is a dangerous

misinterpretation that impinges on civil liberties and, more generally, opens the door to further

breaches of freedom under the guise of public safety.

Vaccines first originated in 1796 when Dr. Edward Jenner used cowpox sores to

manufacture the first smallpox vaccine. Since then, the World Health Organization successfully

orchestrated an international smallpox eradication program, and several other vaccines have been

developed for other diseases since. Today, the US Centers for Disease Control and Prevention

recommends vaccinations for 16 diseases, and they are widely accepted as an effective tool for

keeping populations safe. As the numerous recent resurgences of measles have signaled, diseases

can reemerge if populations don’t continue vaccinating themselves and upholding herd immunity

(“Vaccines”). In short, vaccination has been a critical public health tool throughout modern

history, and not only during global public health crises like the COVID-19 pandemic. The

responsibility of adherence to recommended vaccine schedules in the US has largely revolved

around government action. To support the United States’ largely effective vaccination programs,

Congress passed the National Childhood Vaccine Injury Act (NCVIA) in 1986. This act

established the National Vaccine Program to handle vaccine regulation, an Vaccine Adverse

Event Reporting System to uphold vaccine safety, and the National Vaccine Injury

Compensation Program, which provided government funds to patients who experience adverse

effects from vaccinations. In short, the NCVIA aimed to encourage Americans to continue

vaccinating themselves, protect vaccine manufacturers from expensive lawsuits, and help keep

vaccines affordable. However, no federal law has ever required vaccinations and states have

been largely responsible for vaccine mandates and distribution. As early as 1809, in the midst of

the smallpox epidemic, Massachusetts passed the first vaccination law in the United States,

allowing local governments to require smallpox vaccinations for Massachusetts residents over 21

years of age. In 1855, the Commonwealth followed up on it’s previous law, making it mandatory

for kids to get smallpox vaccines to go to public schools (“Vaccines”).

It is also important to note that the court system, in considering the rollout of

vaccination programs, largely denounced the targeting of racial groups (specifically Asian

Americans) prior to the Jacobson v. Massachusetts precedent. For example, in 1900, the federal

Circuit Court for the Northern District of California heard the Wong Wai v. Williamson case,

wherein the city of San Francisco mandated that all people of Chinese ancestry undergo an

“inoculation against the bubonic plague by a serum known as ‘Haffkine Prophylactic’” and

banned those who hadn’t received the serum from leaving the city (McClain). In the case,

settled in 1900, the Court established that vaccination mandates cannot be enforced in a racially

discriminatory manner as it violates the Equal Protection Clause of the Fourteenth Amendment

(Holland). As Chinese people were of no greater risk of spreading diseases as their

non-Chinese peers, the city’s law was overturned.

Wong Wai was soon followed by Jacobson v. Massachusetts (1905), a precedent setting

case for vaccination mandates throughout the United States. The case’s story started in

Cambridge, Massachusetts, wherein the city’s government required all adults to receive smallpox

vaccinations during the epidemic (Toward). Refusing the vaccination resulted in a five-dollar

fine: the equivalent of approximately $110 today (Holland). In 1902, a local minister, Henning

Jacobson, refused the vaccination and subsequently refused to pay the fine, arguing that the

vaccination mandate violated the Massachusetts and United States Constitutions. All

Massachusetts courts rejected his arguments. Still, Jacobson appealed his case until it found its

way to the Supreme Court in 1904 (Toward). The Court was tasked with answering the following

question: Did the mandatory vaccination law violate Jacobson's Fourteenth Amendment right to

liberty? In their 7-2 majority decision, issued by Justice John Marshall Harlan, the Court ruled

against Jacobson and upheld the vaccination mandate (Jacobson). Justice Harlan applied the

strict scrutiny standard of judicial review, which requires that a law be “narrowly tailored to

further a compelling government interest,” and uses the "least restrictive means" to achieve the

compelling purpose. He further specified five criteria for a public health regulation to be

constitutional: public health necessity, reasonable means, proportionality, harm avoidance, and

fairness (Holland and Gerstmann). Though this decision was incredibly important in supporting

vaccination mandates, it also set important boundaries. In his opinion, Justice Harlan notably

warned against "arbitrary" or "oppressive" regulation (Biskupic). Further, Jacobson explicitly

created a medical exemption from vaccinations, which still exist across the United States

(Holland). This precedent set a reasonable standard for when and how the government can

restrict individual liberties in favor of public health - one that has naturally expanded over time,

but, most recently, has been gravely misinterpreted.

To examine how Jacobson’s standard has been misrepresented, it is important to

understand the ways in which its precedent had been interpreted prior to the recent 5th Circuit

Court ruling. Judicial interpretations of Jacobson’s precedent first started expanding with the

Alabama Supreme Court’s 1916 Herbert v. Demopolis School Board of Education decision. In

this case, a father refused to vaccinate his daughter against smallpox because it was no longer an

epidemic in his area. Subsequently, she was not allowed to attend public school. A similar case,

Board of Trustees v. McMurtry, was decided by the Kentucky Supreme Court in the same year.

In their majority rulings, both courts decided that Jacobson included an implied power for states

to prevent public health epidemics, not just to respond to existing ones. Jacobson’s precedent

was further expanded under the Supreme Court’s 1922 Zucht v. King decision. In its unanimous

ruling, the Court upheld all previous rulings in deciding that compulsory vaccinations for school

admission, even if in preventative measures in non-emergency public health situations, was

constitutional. This drastically, but logically, expanded Jacobson’s precedent, as it was

consistent with Jacobson’ “public health necessity” conditions while still asserting that

vaccination mandates on a specific group (i.e. schoolchildren) was constitutional, going against

Wong Wai v. Williamson’s previous ruling against vaccination mandates of a specific (racial)

group – though it is important to note that the Supreme Court is not bound by a lower court’s

decision on this case (Holland). These expansions have made it so that all states require certain

immunizations to attend public schools, though scheduling requirements differ by state, and

many states have religious and philosophical exemptions (“Vaccines”). Unfortunately, these

well-intentioned court rulings, made for the betterment of public health, have been used in

combination with Jacobson to irrationally limit civil liberties.

Most recently, Jacobson’s precedent has been illogically applied to a new context by the

5th Circuit Court of Appeals through its approach to abortion restrictions during the COVID-19

pandemic. In April of 2020, as the pandemic soared through the country, Texas’ Republican

governor Gregg Abbott suspended all non-essential medical procedures for three months.

Included in his “non-essential medical procedures” list were abortions. In the 5th Circuit Court

of Appeals’ In re: Gregg Abbott 2-1 panel ruling, the Court favored the Governor Abbott’s

classification of abortions as non-essential, further arguing that diverting PPE (personal

protective equipment) to non-pandemic related procedures was irresponsible. As the Court

rejected all arguments founded in Roe v. Wade’s 1973 precedent protecting reproductive rights,

Northeastern University law professor Wendy Parmet, who specializes in public health law,

argued that they “cherry-picked from Jacobson” in all of their rejections (Biskupic). Jacobson set

reasonable guidelines for when public health can trump civil liberties, and the misapplication of

these guidelines (in this case, applying them to abortion rights) has had enormously negative

consequences. In comparison with the previous year, the number of abortions in Texas dropped

by 38% in April, and after the order expired, second-trimester abortions increased 61%. This

suspension of abortions made the already limited abortion facilities in Texas reach capacity

much faster in the attempt to meet backlogged patient needs, and it further increased the risks of

the procedure as these abortions were happening later in the pregnancy (Najmabadi). Further, in

his dissent, Judge James Dennis argued that “In a time where panic and fear already consume our

daily lives, the majority's opinion inflicts further panic and fear on women in Texas by exposing

them to the risks of continuing an unwanted pregnancy, as well as the risks of travelling to other

states in search of time-sensitive medical care" (Biskupic). In other words, abortions, unlike

other medical procedures, cannot be safely postponed, and this decision put pregnant people

seeking abortions at an even higher-risk situation in the midst of a public health crisis. As

proven by the already-horrible consequences of this treacherous ruling, the misinterpretation and

irrational expansion of Jacobson’s precedent endangers civil liberties and opens the door to

further breaches of freedom under the guise of public safety.

To conclude, though vaccine mandates have been largely effective, the grossly

inappropriate usage of Jacobson’s precedent should not continue. Included in Jacobson’s

precedent was the criteria of “harm avoidance” and “fairness” - criteria that have been

completely disregarded. In the recent application of Jacobson, this has been completely

disregarded as the harm done to pregnant people was unfair and not harm avoidant (as abortion

procedures are urgent and are more dangerous as a pregnancy continues). Wong Wai v.

Williamson ruled that the discrimination of groups was unconstitutional, but through the recent

expansion of Jacobson's precedent, the attack on reproductive rights is evident. This opens the

door to further violations of civil liberties without the consideration of Jacobson’s “fairness,”

and Wong Wai’s nondiscrimination precedents. These interpretations, in combination with Zucht

v. King’s allowance for restrictions on personal liberties even when not in a health crisis, create a

possibly disastrous future for liberty as we know it.

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