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.
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.”
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, . . . . 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.
That was one of numerous medical claims that Jacobson presented to the court. All would sound familiar to today’s vaccine skeptics, ranging from reasonable-seeming contentions like “the result of vaccination cannot be foretold in any case,” to balder assertions such as “vaccination causes loathsome diseases,” to statements that may be technically true but carry more than a tinge of conspiracy, including “vaccination does not prevent smallpox but spreads the disease.”
Jacobson vowed to prove the truth of all those statements and more, but the courts wouldn’t have it.
“The only ‘competent evidence’ that could be presented to the court to prove these propositions was the testimony of experts, giving their opinions,” concluded the Supreme Judicial Court of Massachusetts, which Harlan quoted in the Supreme Court decision. “Assuming that medical experts could have been found who would have testified in support of these propositions, [the court] would have been obliged to consider the evidence in connection with facts of common knowledge, which the court will always regard in passing upon the constitutionality of a statute.”
Those facts, the court stated, include “that for nearly a century, most of the members of the medical profession have regarded vaccination, repeated after intervals, as a preventive of smallpox; that, while they have recognized the possibility of injury to an individual from carelessness in the performance of it, or even, in a conceivable case, without carelessness, they generally have considered the risk of such an injury too small to be seriously weighed as against the benefits coming from the discreet and proper use of the preventive.”
Henning Jacobson was not only attacking the board of health’s vaccination order as being of questionable legal basis, he was asserting his freedom to reject it out on his own accord. His lawyers’ brief to the Supreme Court made a passionate case for his right to control his own medical decisions, in an argument that foreshadows the “medical freedom” framing of anti-vaccine and anti-mask campaigners today: . . . .
“There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government,” Harlan, writing for the majority, acknowledged. “But it is equally true that, in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
Many of those conservative justices, along with their liberal colleagues, are Harlan admirers. Jurists across the political spectrum respect the way that Harlan’s heartfelt dissents in cases involving the rights of African Americans and Gilded Age economic excesses helped turn the tide of legal thinking. Chief Justice John Roberts went so far as to place Harlan’s portrait on the walls of the room where justices discuss cases. And now it appears that they may, again, be called upon to assess the wisdom and prescience of his words in yet another case of urgent national importance.
Could the Great Dissenter emerge as the Great Protector of the Covid-19 pandemic? Only time will tell.
1 comment:
Shhhhh!
You'll ruin all the performative outrage the Repugs are concocting. First Uncle Joe was not doing enough and now he's doing too much. Typical Repug logic.
XOXO
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