The Surprisingly Strong Supreme Court Precedent Supporting Vaccine Mandates

Source: Politico | September 8, 2021 | Peter S. Canellos and Joel Lau

In 1905, the high court made a fateful ruling with eerie parallels to today: One person’s liberty can’t trump everyone else’s.

Henning Jacobson, a 50-year-old minister, put his faith in his own liberty. Back in his native Sweden, he had suffered a bad reaction to a vaccine as an infant, struggling for years with an angry rash. Now he was an American citizen, serving as pastor of the Swedish Lutheran Church in Cambridge, Massachusetts. That gave him the full protections of the U.S. Constitution.

So when the Cambridge board of health decided that all adults must be vaccinated for smallpox, Jacobson sought refuge in the Constitution’s promise that no state shall “deprive any person of life, liberty or property without due process of law.”

The year was 1904, and when his politically charged legal challenge to the $5 fine for failing to get vaccinated made its way to the Supreme Court, the justices had a surprise for Rev. Jacobson. One man’s liberty, they declared in a 7-2 ruling handed down the following February, cannot deprive his neighbors of their own liberty — in this case by allowing the spread of disease. Jacobson, they ruled, must abide by the order of the Cambridge board of health or pay the penalty.

“There are manifold restraints to which every person is necessarily subject for the common good,” read the majority opinion. “On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.”

Jacobson’s claim was essentially the same as that taken for granted by vaccine skeptics today: That they have the personal liberty under the U.S. Constitution to decide for themselves whether to take the shot. Backed by a group called The Anti-Vaccination Society, Jacobson made a formidable case, incorporating many of the same arguments about freedom from government interference that are ricocheting around cable TV this summer, and mouthed by politicians. Donald Trump, after recommending at a rally on Aug. 21 that his supporters get vaccinated, quickly added after a smattering of boos: “But you do have your freedoms you have to keep. You have to maintain that.”

The question of whether those freedoms include refusing a legally mandated Covid-19 vaccine, should any government implement such a requirement today, has yet to come before the Supreme Court — or any court. But in the event that it does, the 116-year-old case brought by Henning Jacobson would be the standing legal precedent. In deciding whether the rules that the Jacobson decision rendered for smallpox would apply to Covid-19, today’s court would need to reckon with a different medical landscape, as well as the freighted politics of the moment. The justices would also find themselves grappling with the legacy of the man who wrote the opinion, Justice John Marshall Harlan.

Known for his highly principled dissents, and most famously for taking a lonely stand in favor of Black rights in the late 19th Century, Harlan in this case wrote for a clear majority of the court. He concluded: “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”

That last is a classic Harlan sentence, cutting through all the nuances and caveats to reach an essential point of justice. His balancing of the rights of vaccine skeptics against the rights of the community seems especially compelling at a time when those who refuse to get vaccinated are fueling fresh outbreaks and inviting the creation of variants that pierce the defenses of those who are fully immunized. And his thinking could have special resonance: While many of his colleagues have faded into history, today’s justices, conservatives and liberals alike, profess themselves to be deep admirers of Harlan.

I studied the court’s 1905 decision in Jacobson v. Massachusetts, along with the briefs of the lawyers who argued the case, because of my recent book about Harlan, The Great Dissenter. As the title suggests, the book focuses on Harlan’s dissents, not his majority opinions. But what struck me wasn’t just the contrasting ways that Harlan’s principles played out in majority opinions and dissents, but the extent to which the Jacobson case was so eerily on-point to current debates about Covid-19.

Could Harlan’s notion of competing freedoms transform the still-simmering debate over vaccine mandates, which now seem more possible with full FDA approval of the various vaccines either in place or on the horizon? Certainly, he offers a powerful rebuttal to those who feel that personal liberty is only in play when someone is compelled to be vaccinated: The Jacobson holding suggests that other people, from co-workers to classmates to neighbors, have a corresponding liberty interest in being free from infectious disease. Like those who inhale passive smoke, they, too, are affected by a decision that others deem a matter of personal choice.

And the court’s ruling makes clear that a community in danger has every right to protect itself.

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