The illustration “Vaccinating the Poor,” by Solomon Eytinge Jr., originally published in Harper’s Weekly, Mar. 16, 1872, depicts a group of people observing a physician as he administers a smallpox vaccination in a New York City police station. | National Library of Medicine
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.”
“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.”
Harlan noted that healthy travelers arriving in the United States on steamers that had suffered outbreaks of yellow fever or cholera could be held in quarantine against their wishes; so, too, could unwilling citizens be conscripted into the military in a time of national emergency.
These types of arguments are familiar to readers of Harlan’s dissents. Even though he is famous today as the lone dissenter in Plessy v. Ferguson, voting to overturn a Louisiana law placing African Americans in separate railroad cars, he was normally quite deferential to the decisions of legislatures.
A firm believer in the democratic system, he felt that elected governments needed sufficient power to address major civic threats. He would go on to disagree with the court’s majority in Lochner v. New York, arguing in a forceful dissent that the law limiting bakery hours was a reasonable exercise of the New York Legislature’s power to protect the health and safety of citizens — in this case from overwork.
Today, the law is on the side of Harlan. The Lochner case is widely reviled as a symbol of judicial overreach by both liberals and conservatives. The fact that the same justices who were so concerned about laissez faire individualism in the Lochner case couldn’t bring themselves to support Henning Jacobson doesn’t bode well for any future challenge to a vaccine mandate.
The current conservative-dominated court, it would seem, is far less likely than its Gilded Age forebearers to impute great protections to the liberty language of the Fourteenth Amendment.
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