9 minute read
Book Review
American Contagions, Epidemics and the Law from Smallpox to COVID-19
By JOHN FABIAN WITT Reviewed by Judge Jeffrey K. Sprecher
“The health of the people is the supreme law.” — Cicero
The author presents a title so long one might fear buying the book, especially considering that its subject matter is so complex because contagions and epidemics have ravished the world since the beginning of time. But his book is far from voluminous, and I’m happy to write that it’s an easy read despite being jam-packed with a chronology of state and federal cases and diverse executive action taken in the 250-year history of American jurisprudence.1 It covers citizens’ rights in America versus states’ police power in just five chapters.
Police Power Defined
In 1904, Ernst Freund in his book The Police Power, Public Policy and Constitutional Rights defined police power as the power of the state to secure and promote public welfare by restraint and compulsion. Black’s Law Dictionary defines it as the inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, health, morality, and justice. But, writes John Fabian Witt, a professor of law and history at Yale in a case that interprets the Tenth Amendment to the U.S. Constitution, the U.S. Supreme Court declared that one sovereign, the federal government, lacks police powers.2
Prejudice and Discrimination
Prejudice and discrimination can be found in the application of laws to the different classes of people throughout history, even in America. If you look up either term in his index Mr. Witt directs you to see “minorities, racial inequities.” When the reader does, there are eight more suggestions to separate parts of the book as well as to more places throughout the index under different racial and ethnic terms. It is a big part of the book, only because it has played such a large role in the type of laws passed and the political power exercised in America’s fight against epidemics. There is the infamous Buck v. Bell case decided in 1927 where Justice Oliver Wendell Holmes upheld the compulsory sterilization of Carrie Buck, a young Virginian woman who had been labeled “feeble minded” after becoming pregnant out of wedlock. “The principle that sustains compulsory sterilization is broad enough to cover cutting fallopian tubes,” Holmes wrote, “Three generations of imbeciles are enough.” 3
Witt gives another example known as Typhoid Mary.
Discriminatory state power was sometimes exercised against specific individuals as well as against particular communities.
Consider Mary Mallon, dubbed “Typhoid Mary,” whose sad life story offers an especially vivid illustration. Mallon was an unmarried, middle-aged, Irish-born domestic cook in
Manhattan in 1907 when outbreaks of typhoid fever occurred among several of Manhattan’s wealthiest households. An enterprising public health official traced the outbreaks back to
Mallon, who had served in each of the affected households.
Mallon had experienced no symptoms. She was not sick in any conventional sense, nor had she done anything wrong. She had certainly committed no crime. Yet, the board of health and the New York City police seized her.
Testing soon revealed that she was a healthy carrier of the typhoid bacillus, and she was detained in quarantine on
North Brother Island in the East River. A New York judge upheld her detention as lawful under the powers of the
Metropolitan Board of Health. After almost three years of isolation, she was released on a promise never to work as a cook again. But she did not believe the science. Taking an assumed name, she went to work as a cook for a maternity ward. She was discovered in 1915 when typhoid fever broke out in the ward and investigators traced the disease back to her. She would spend the rest of her life, 23 years, once again isolated against her will in the East River, never having been convicted of or even charged with a crime.
Several hundred other health carriers of the bacillus came to light while Mallon moldered alone on North Brother Island but none were detained for a substantial period of time.4
Other endemic American diseases mentioned in the book include AIDS, cholera, COVID-19, Ebola, the Spanish Flu epidemic, measles, polio, SARS, smallpox, syphilis, typhoid, and yellow fever. Did you know that: 1) A yellow fever epidemic broke out in 1645 in the
Massachusetts Bay Colony. 2) After discovery of America by Columbus, 90% of the 70 million native Americans in the U.S. died by exposure to Europeans and conquistadores and the contraction of measles and/or smallpox. 3) Far fewer people died in the war for American independence than in the battle against smallpox. 4) In the early years of the new nation, yellow fever brought by refugees from the Haitian revolution exposed and killed 10% of the citizens of Philadelphia and New York City.
The purge continued in the northeastern U.S. for decades thereafter. 5) Cholera gruesomely killed thousands in the U.S. in 1832 then returned in 1849 and again in 1866. Although no longer found in America, cholera still prevails in
Third World countries. In one of the deadliest cholera outbreaks of modern time, the epidemic following the 2010 earthquake in Haiti infected at least 800,000 Haitians of whom more than 10,000 died. 6) Smallpox during the Civil War and thereafter devastated communities of former enslaved people. 7) Around the same time, New Orleans lost tens of thousands of citizens to death by yellow fever.
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Continued from page 19
Tragically, illness, disease, and death were part of daily life especially in young America. Except for the continuing danger from more recent contagions (such as SARS, AIDS, Ebola, and COVID), the majority of these diseases are controlled in the U.S. to the point that they are not even given a second thought. However, polio was most deadly in the U.S. in 1950 & 1952 which of course is well within the early lifetime of a large portion of the population alive today.5 Mr. Witt also includes past examples of the recurring frustration of citizens’ refusal to believe in vaccination.
With COVID-19 Vaccination, Will We Ever Reach Herd Immunity?
For vaccines to work, we of course need herd immunity. In a story that appeared in the press on Tuesday, May 23, 2021, William J. Kale of the Associated Press writes how refusal to vaccinate plagued the U.S. for years after Boston suffered devastating effects from the smallpox epidemic that hit the city in 1721 and how vaccination of that disease parallels the coronavirus pandemic to hit us two-hundred years later:
Smallpox was eradicated but not before it sickened and killed millions worldwide. . . . The last outbreak of smallpox in the
United States occurred in 1949. It was declared eradicated worldwide in 1980. Yet just as with COVID-19 vaccines in 2021, many people took a skeptical view of smallpox inoculations in the 18th century. Edward Jenner inoculated the first child in the world in 1796. But sixty-eight years later smallpox once again raged through Boston.6 Why? Historians list three reasons (not all logical) that U.S. citizens for decades refused the smallpox vaccination. 1) Clergy warned their congregations against contaminating the purity of the human body with animal matter (cowpox) and condemned it as Unchristian. 2) Many of Jenner’s peers, who had forged careers on useless but lucrative “cures” for smallpox, were quick to denounce vaccines as being dangerous. 3) At least one self-described physician claimed that the vaccine would leave children with distinct bovine features.
David Montadel’s Take on COVID Herd Immunity
David Montadel, a historian at the London School of Economics and Political Science, wrote on April 29, 2021 in the New York Times, “ever since the time of Jenner, whenever new vaccines have been approved, antivaccination campaigns have been part of the response.” For example, Jonas Salk invented his polio vaccine in 1955 and although polio epidemics were nearly gone less than 10 years later, the disease has never been completely eradicated; “it roared back in Pakistan in 2019, after rumors spread that children had fallen ill after receiving the vaccine and many parents refused to let their children receive it.”
Montadel provides another example. Measles, mumps, and rubella vaccines were approved in the 1960s and were combined into the MMR vaccine in 1971. But use of the vaccine became the subject of one of the most publicized immunological controversies in history. An article published by Andrew Wakefield in the late 1990s in The Lancet linked the vaccine to neurological conditions, including autism.7 The problems with the paper were highlighted almost immediately, but despite the public notice, this false story cast a long shadow: “MMR vaccination rates plunged, and measles outbreaks soared in the years afterward.”
However, Mr. Montadel’s opinion on COVID is, “Although attempts to delegitimize vaccines have posed a serious threat to human health, antivaccination movements, at least in the long run, have never succeeded in stopping rollouts: enough people have accepted vaccines that they have always been effective in the immunization of societies. And that’s likely to be true of this pandemic, too,” concludes Mr. Montadel.
Hopefully, he’s right.
References
1 The book is only 174 pages in a 5" by 8" format including an Introduction, Afterward, Notes, and Index. 2 Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 (1918);opinion written by Justice Louis Brandeis; 1918 was the beginning of the flu pandemic that killed millions throughout the world including 675,000 Americans.
3 Buck v. Bell, 274 U.S. 200, 207 (1927).
4 Witt, p. 41-42. 5 On June 30, 2021, the Reading Eagle, in its History section, featured a story that was frontpage news in the Reading Times over one-hundred years before on August 26, 1916 entitled, “No Sunday School of Any Kind Will be Allowed Here.” Thus, said the Pennsylvania health Commissioner who ordered that no such activity would take place because of an outbreak of infantile paralysis, also known as polio. 6 Witt, on page 19, writes that in 1827 Boston required that “children attending school were required to be vaccinated.” 7 The Lancet is an independent, international weekly general medical journal founded in 1823. It has extensive global reach. According to the internet, it has more than 84 million annual visits.
