110 Years Later and We Are Still Arguing Over Compulsory Vaccinations: Jacobson v. Massachusetts (1905)

Over the last several weeks, the country has, once again, been in the throes of a national debate over the cost-benefit analysis of vaccination.  The medical community is universal in its conclusion that vaccination vastly reduces (and, in many instances, eliminates) the spread of certain diseases.  A vocal minority of citizens, however, has argued that, whatever the benefit of vaccination, it is outweighed by what is claimed to be a serious risk of life-altering side effects including, principally, autism — claims the medical community has almost uniformly rejected.  What is remarkable about this controversy is that it is hardly new; approximately 110 years ago we had the same argument over the smallpox vaccine.  And, while not ruling on the efficacy of the vaccine, the Supreme Court in Jacobson v. Massachusetts did rule that requiring people to submit to vaccinations does not violate the Constitution. The background of the case and the reasoning underlying the Court’s decision in Jacobson reflect why, despite the passage of time, we are still debating the same issues, and how, ultimately, the courts will resolve them.

By way of background, at the turn of the 20th century, the United States was still struggling with a virulent disease known as smallpox.  Although considered an eradicated disease today, smallpox infected generations of people over many thousands of years.  Indeed, according to a study at the University of California-Davis, as many as 300 million people died from smallpox as recently as last  century — this, despite the availability (since the 1850s) of a smallpox vaccine which completely prevents the onset and spread of the disease.  In other words, smallpox was a dangerous, life-threatening disease that killed people on a genocidal scale even during periods that the vaccine was available (although, obviously, not in widespread use).  It was in this historical context that the dispute over inoculation arose 110 years ago.

Then, a Swedish immigrant, Henning Jacobson, objected to complying with a compulsory vaccination law in Massachusetts. As reflected in the Supreme Court decision in Jacobson v. Massachusetts, it was claimed, in language reminiscent of the arguments made today concerning the measles, that the smallpox vaccine:

“quite often” caused serious and permanent injury to the health of the person vaccinated; that the operation [of injecting the vaccine] “occasionally” resulted in death; that it was “impossible” to tell “in any particular case” what the results of vaccination would be or whether it would injure the health or result in death.

The Court noted that the basis for his claims was anecdotal, and largely followed the theory that a person’s individual blood-chemistry was responsible for the adverse reactions that were described.  The Massachusetts legislature, following the advice of the medical community, disagreed with Jacobson and those who subscribed to his cause.

While the Court in Jacobson acknowledged that it lacked the jurisdiction to resolve the medical issue, the dispute created an interesting constitutional question — can a person be compelled by the government against his or her will to submit to vaccination?   The Supreme Court responded in the affirmative — people can, in fact, be compelled to submit to vaccination.  And the reasoning of the Court in Jacobson informs the debate around mandatory vaccination today.

The Supreme Court, after making reference to the dangers of smallpox, cited society’s “right to protect itself against an epidemic of disease which threatens the safety of its members.”  In disposing of the argument that Mr. Jacobson should have the right to “prove” that vaccinations are potentially hazardous, the Court ruled that to render a judicial determination on such an issue:

would practically strip the legislative department of its function to care for the public health and the public safety when endangered by epidemics of disease.

The Court further noted that:

We are not prepared to hold that a minority … enjoying the general protection afforded by an organized local government, may thus defy the will of its constituted authorities, acting in good faith for all, under the legislative sanction of the State. If such be the privilege of a minority, then a like privilege would belong to each individual of the community, and the spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual …

Lastly, the Supreme Court addressed Jacobson’s contention that, if the state can force him to submit to an injection of foreign substances into his body, he is not truly free.  In response, the Court explained that:

the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.

And so, on this issue, the Court concluded:

We are unwilling to hold it to be an element in the liberty secured by the Constitution of the United States that one person, or a minority of persons, residing in any community and enjoying the benefits of its local government, should have the power thus to dominate the majority when supported in their action by the authority of the State.

110 years later, the Jacobson decision remains especially relevant today.  Across the nation, parents are refusing to vaccinate their children with immunizations that are designed to protect, not only the members of their own families, but also entire neighborhoods, communities and cities.  The refusal to immunize against the measles is dangerous.  According to the Center for Disease Control, until the measles vaccine became widely available in 1963, nearly every person was infected with the measles before the age of 15, resulting, annually, in 48,000 hospitalizations, 4,000 cases of encephalitis, and 400-500 deaths.

By refusing to vaccinate their children to the measles virus, parents are exposing, not only their own children, but entire communities to a disease which was all but eliminated until several years ago.  And, while there are those who argue that refusing the vaccine poses no risk to anyone other than those who choose not to be immunized, the medical community disagrees.  Why?  Because there are tens of millions of people in America who lack access to affordable health care and thus may have never been inoculated.  Accordingly, each of these individuals is susceptible to contracting the measles.  Worse, infants cannot receive the measles vaccine until they reach the age of 12 months.  So, the parents who refuse to vaccinate their own toddlers and older children expose every non-inoculated infant in the community to the measles, a potentially life-threatening disease.  In short, to argue that refusal to submit to vaccination portends consequences solely to those who choose to decline it is simply false.

To date, there is no medical evidence to establish a scientific linkage between inoculation and widespread disease.  Meanwhile, all 50 states have enacted mandatory inoculation laws for children who attend public school. Unless a respected member of the medical community raises a legitimate question on the issue of vaccination and its impact on patients, the laws requiring immunization are going to be enforced.  And, as the decision in Jacobson confirms, the constitutionality of those laws will be sustained.