“There are many constraints to which every person is inevitably subjected for the common good,” it says in the majority opinion. “Organized society could not exist with certainty for its members on any other basis. A society based on the rule that everyone is a law for himself would soon face disorder and anarchy. “
Jacobson’s claim was essentially the same one that vaccine skeptics take for granted today: They have the personal freedom under the U.S. Constitution to choose whether to vaccinate. Backed by a group called The Anti-Vaccination Society, Jacobson made a formidable case by incorporating many of the same freedom from government interference arguments that bounced off cable television this summer and were voiced by politicians. Donald Trump quickly added after a few boos, after recommending that supporters get vaccinated at a rally on August 21, “But you have your freedoms that you must keep. You have to keep that. “
The question of whether these freedoms include the rejection of a legally required Covid-19 vaccine, should a government implement such a requirement today, has yet to be discussed in the Supreme Court – or a court of law. But just in case that is the case, Henning Jacobson’s 116-year-old case would be the standing legal precedent. When deciding whether the rules that the Jacobson If the decision on smallpox were to apply to Covid-19, today’s court would have to reckon with a different medical landscape and the charged politics of the moment. The judges would also look at the legacy of the man who drafted the opinion, Judge John Marshall Harlan.
Known for his highly principled disagreements and above all for being in the late 19th century. He concluded: “There can be no real freedom for all when a principle is applied that recognizes the right of each individual to use his or her own whether to his person or property, regardless of the harm that might be done to others. “.”
The latter is a classic Harlan phrase that cuts through all the nuances and caveats in order to reach an essential point of fairness. His balancing the rights of vaccine skeptics against the rights of the community seems especially compelling at a time when those who refuse to be vaccinated are fueling new outbreaks and inviting the creation of variants that penetrate the defenses of the fully vaccinated. And his thinking could have a particular resonance: While many of his colleagues have gone down in history, today’s judges, conservatives and liberals alike, profess to be deep admirers of Harlan.
I studied the 1905 court decision in Jacobson versus Massachusetts, along with the pleadings of the attorneys who argued the case about my recent book on Harlan, The great dissident. As the title suggests, the book focuses on Harlan’s dissenting opinions, not his majority opinions. What struck me, however, was not only the contrasting ways in which Harlan’s principles were reflected in majority opinions and dissent, but also the extent to which those Jacobson Case was so scary to the point on current debates over Covid-19.
Could Harlan’s idea of competing freedoms change the still smoldering debate over vaccine mandates that now seems either in place or more likely in sight with the various vaccines fully FDA approved? Certainly he offers a strong refutation to those who believe that personal freedom is only involved when someone is forced to get vaccinated: The Jacobson Holding suggests that other people, from work colleagues to classmates to neighbors, have a corresponding interest in freedom in being free from infectious diseases. Like those who inhale secondhand smoke, they are affected by a decision that others consider to be a personal one.
And the judgment of the court makes it clear that a vulnerable community has every right to protect itself.
For residents of Cambridge, Massachusetts A bastion of academic liberalism then as now, smallpox was the great plague of the first decade of the 20th century. The main source of protection was vaccines, which in most cases were used safely but made some people sick.
Henning Jacobson was apparently one.
the Evening herald of Fall River, Massachusetts, wrote his medical report on November 17, 1904: “He was born in Sweden and was in excellent health until he was vaccinated as an infant. Six days after the vaccination, he had a hot, burning rash that lasted for years. He needed constant and efficient care, for example wrapped in hot sheets, etc. “As an adult, he is Herald reported that Jacobson had urged his 18-year-old son to avoid vaccination, but the boy threatened to lose his job if he did not protect himself against smallpox, so he took the vaccination. He too had painful side effects and kept his arm in a sling for six months.
The fact that both father and son had had bad reactions undoubtedly led Jacobson to claim in his court records that “contamination of the blood” can cause injury and even death in certain people if they choose to vaccinate against smallpox. It was one of many medical claims Jacobson made to the court. Everything looks familiar to vaccine skeptics today, from seemingly reasonable claims like “the outcome of a vaccination is absolutely impossible to predict” to more blatant claims like “vaccination causes disgusting diseases” to statements that may be technically true but carry more than that a touch of conspiracy, including “Vaccination doesn’t prevent smallpox, it spreads the disease”.
Jacobson swore to prove the truth of all of these statements and more, but the courts wouldn’t.
“The only ‘competent evidence’ that could be presented to the court to prove these allegations was the testimony of experts who gave their opinions,” concluded the Massachusetts Supreme Court, quoting Harlan in the Supreme Court decision. “Assuming medical experts could have been found to support these claims, [the court] would have been obliged to examine the evidence in connection with well-known facts, which the court will always take into account when determining the constitutionality of a law. “
These facts, the court said, included “that for nearly a century most medical professionals have viewed intermittent vaccinations as a preventive measure against smallpox; that while they recognized the possibility of injury to a person through negligence in the exercise, or even in a conceivable non-negligent case, they generally considered the risk of such injury too low to seriously weigh against them the benefits of doing the discreet and proper application of preventive measures. “