Will You—Must You—Be Vaccinated?

Like many other countries, the United States is working hard on creating a vaccine to protect people from getting infected with COVID-19. A successful vaccine could allow us to return to school, work, travel, sports events, parties, movie theaters, shopping—possibly life as we knew it—without the risk of endangering each other. Researchers currently believe that in order for these activities to be safe, a large percentage of the population will need to be vaccinated. However, recent polls indicate that from one-quarter to one-half of the US population say they will likely refuse to receive the vaccine. The stakes for public health, education, and the economy are high. Under these circumstances, can the government force Americans to be vaccinated? A Supreme Court case during a smallpox epidemic provides an answer, at least for now.

In August 1901, a Mr. McKenna rushed his infant daughter, who was suffering from a high fever and a pus-oozing rash, to Boston’s City Hospital. Doctors there diagnosed her with smallpox. Unfortunately, she died on the way to a specialized care facility. Baby McKenna’s death was the first in what soon became known as the Boston Smallpox Epidemic.

Public health officers quarantined her parents, sister, and brother on an island in the harbor and vaccinated about eight hundred of their neighbors. Nevertheless, the disease spread. Worried officials, having no idea how germs could leap from one person to another, debated what to do. Should they quarantine everyone who had been exposed? Or, just every diagnosed case? Make sure that all schoolchildren received the mandated vaccination? Or, close the schools? Clean the streets? Sanitize crammed tenement buildings? Inoculate the entire population?

Local boards of health supported universal vaccination, which had proved to be highly effective in preventing smallpox. However, the serum, which was obtained from cattle infected with a mild case of cowpox, was often contaminated with hair and foreign bacteria that could produce nasty side effects. Some people who had been healthy before having it scratched into their arms, became sick, even died, of smallpox or tetanus.

Within four months of Baby McKenna’s death, almost eight hundred people in the Boston area fell ill from the epidemic; nearly one hundred died; and the number of cases continued to grow ominously. So, by spring 1902, officials in Boston and nearby Cambridge ordered every inhabitant to be vaccinated or revaccinated, despite the risks. Soon, the Massachusetts legislature passed a law mandating this preventive medication across the state. Defying the law would result in a fine of five dollars (about $150 today). Medical examiners set up free clinics, knocked on the doors of nearly every home and business, and even sat on some people to forcibly inoculate those who objected.

One of the people who objected was Reverend Henning Jacobson of Cambridge. He and his sons had suffered miserable reactions to the vaccine five years earlier, and he refused to be revaccinated. Furthermore, he refused to pay the fine. Jacobson was taken to court for breaking the law. At his trial, he complained to the judge, “We have on our statute book a law that compels…a man to offer up his body to pollution and filth and disease…”

Jacobson lost his case in both the local inferior court and, after he appealed, in the state supreme court. He appealed again and went all the way to the United States Supreme Court. He argued that the government had no right to force an American citizen to undergo a medical procedure against his will. He based this argument on two grounds:

• The Preamble to the Constitution states that Americans ought to be able to “secure the Blessings of Liberty to ourselves and our Posterity.” However, Jacobson said that “his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination.”
• The Fourteenth Amendment to the Constitution guarantees that no state can “deprive any person of life, liberty, or property, without due process of law.” Jacobson maintained that his personal liberty gave him the right to refuse vaccination and no law could erase that right.

The majority of the justices on the Supreme Court disagreed with Jacobson. Justice John Marshall Harlan explained that one person’s liberties often have to be limited for the sake of the community. “There are manifold restraints to which every person is necessarily subject for the common good,” Harlan wrote. Jacobson would have to be vaccinated, even against his will, in order to reduce the spread of smallpox to other people in the area.

If states or the federal government requires everyone to be vaccinated against COVID, it is likely that some people will object, leading to a lawsuit similar to Jacobson’s. Sometimes, the Supreme Court upholds the precedent set by previous decisions. At other times, the Court overturns those decisions. What do you think the Court should do if it faces this dilemma again: ensure the public’s health or preserve personal liberty?