The Case for Overturning a 1905 Precedent Allowing Vaccine Mandates
On September 9, 2021, President Joe Biden announced modifications to his administration’s “Action Plan” to combat the ongoing COVID-19 Pandemic. Vaccine mandates or regular testing for close to 100 million Americans was included within the updates, including explicit vaccination requirements for about 20 million people. All federal workers and federal government contractors (2.5 million people), health care staff at Medicare and Medicaid participating hospitals (17 million people), and staff employed by Head Start Programs, Department of Defense schools, and Bureau of Indian Education-operated schools (300,000 people) are required to be vaccinated. All employees of private sector businesses with one hundred or more employees must either be vaccinated or tested weekly (80 million people) [1]. The idea of mandated vaccines for any group of people raises concern. Many laymen in the general public and legal scholars alike question the constitutionality of such actions by the Biden Administration. Some voices express concern over such vaccine requirements expanding to encompass all Americans. Such concerns bring forth an important question: Would the historical precedent established in a 1905 Supreme Court Case allowing for legally mandated required vaccinations be upheld given the more than a century of change in American jurisprudence? Looking at the change in jurisprudence, it would be hard to justify the legality of such actions by the State. To understand the argument, I will explore the history and rationale of the initial 1905 case and discuss the expansion of personal liberty, more specifically bodily autonomy, the Court orchestrated since 1905.
Jacobson v. Massachusetts (1905) is one of only two Supreme Court cases explicitly dealing with the issue of vaccine requirements in America. The other being Zucht v. King (1922), which cited Jacobson in the decision upholding the legality of San Antonio’s mandated vaccines for all public and private school students [2]. In Jacobson, an individual challenged a regulation requiring vaccination against smallpox in effect in Cambridge, Massachusetts. The Court faced the question of whether the vaccination requirement violated rights to liberty secured by the Fourteenth Amendment. In a 7-2 decision, the Court ruled the regulations did not violate the U.S. Constitution. Justice John Marshall Harlan authored the majority opinion, which contains a great deal of precedent relative to the contemporary issue of COVID-19 mandates [3]. However, much of the opinion may not stand in a modern Supreme Court due to the “rights-revolution” cases [4].
The best summary of the Court’s argument in Jacobson is illustrated in Harlan’s analogy of receiving a vaccination to being drafted:
[An American] may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense. It is not, therefore, true that the power of the public to guard itself against imminent danger depends in every case involving the control of one’s body upon his willingness to submit to reasonable regulations established by the constituted authorities, under the sanction of the State, for the purpose of protecting the public collectively against such danger.”
The Court contended throughout the decision that individual rights may be suspended by the government to promote the general health and safety of the public. Harlan writes, “persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State…” and “the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, food order and morals of the community.”
The language of the decision ultimately allows for the suspension of personal liberty by the government in cases deemed “reasonable.” As is often the case in American Constitutional Law, the definition of “reasonable” remains vague and subject to a wide range of interpretations. If liberally construed, the use of “reasonable” may result in the restriction of liberties which would be outlandish today. For instance, Buck v. Bell (1927), which allowed for the forced sterilization of inmates of institutions to prevent the proliferation of “an hereditary form of insanity or imbecility,” reasoned that the principle presented in Jacobson “is broad enough to cover cutting the Fallopian tubes” of such individuals [5].
After the rulings in Jacobson and Buck and during the second half of the 20th Century, the Supreme Court has more often favored the expansion of individual liberties as opposed to the expansion of the state’s power to restrict such liberties. Prominent cases during this so-called “rights revolution” include Griswold v. Connecticut (legalized contraceptives, 1965), Loving v. Virginia (legalized interracial marriage, 1967), Roe v. Wade (legalized first-trimester abortion, 1973), United. States v. Stanley (outlawed mandatory use of experimental drugs or therapies, including military personnel, 1987), and Cruzan v. Director, Missouri Department of Health (allowed for individuals to refuse all medical treatments, 1990) [6]. The trend appears clear: The Supreme Court has granted increased individual liberty over one’s body versus the interests of the State since the Jacobson case.
The Court constructed a two-tiered approach to answering questions concerning the restriction of constitutionally protected rights. One test, “strict scrutiny,” is reserved for “fundamental” rights, and the other, “rationality review,” is utilized for “non-fundamental” rights. In the “strict scrutiny” test, a Court must determine whether an enacted law (1) serves a purpose “compelling” enough to warrant government action and (2) is “narrowly tailored” to satisfy its purpose while limiting interference with individual liberty. For the “non-fundmental” rights, the “rationality review” test questions only whether the restrictive measures are “rationally related” to a “legitimate state interest” [7].
Thus, the question arises: Is bodily autonomy a fundamental constitutional right? The Common Pleas Court of Allegheny County, Pennsylvania ruled in the McFall v. Shimp (1979) that one is not subject to legal requirements of medical treatments to save another life [8]. If such a case was true, it “would defeat the sanctity of the individual and would impose a rule which would know no limits” [9]. However, the idea of “personal autonomy” is not frequently expressed by the Supreme Court. The current understanding is that “personal autonomy” is not a fundamental right and remains limited in its impact on American jurisprudence [10].
However, the recent expansion of individual liberty and bodily autonomy may supersede the fact “personal autonomy” is not explicitly considered a fundamental right of the U.S. Constitution. Given the rulings in the rights revolution cases, it is hard to imagine a Supreme Court which would grant any government entity the ability to require vaccinations.
It is important to note that Mr. Biden’s mandates are limited to federal government employees or employees of entities receiving federal government funding. This provision may currently be serving as the thin reed used to uphold the legality of the President’s mandates.
Exploring the broader question of whether Jacobson will be upheld in today’s legal jurisprudence, I contend the precedent established since 1905 warrants a Supreme Court to strike down laws requiring vaccinations within a population. I must distinguish between mandates to attend schools, private businesses, and other, more limited, spheres. I am simply stating that a blanket mandate over a population requiring a vaccine, such as Cambridge’s in 1905 for smallpox, would not be upheld by a contemporary Supreme Court. The Supreme Court has since expanded the rights of personal liberty, especially over our personal bodies, since 1905. While private businesses may require vaccinations for admittance into their buildings or states may require vaccines for public school students, the government imposing a blanket mandate over a population is unfeasible in today’s jurisprudence.
References
[1] “President Biden’s COVID-19 Plan.” The White House. The United States Government, September 9, 2021. https://www.whitehouse.gov/covidplan/#protect.
[2] Tapio, Nicholas. “A Weakness in the Argument for Vaccine Mandates – The Boston Globe.” bostonglobe.com. The Boston Globe, August 25, 2021. https://www.bostonglobe.com/2021/08/25/opinion/weak-constiutional-case-vaccine-mandates/.
[3] Jacobson v. Massachusetts, 197 U.S. 11 (1905)
[4] Tapio, Nicholas. “A Weakness in the Argument for Vaccine Mandates – The Boston Globe.” bostonglobe.com. The Boston Globe, August 25, 2021. https://www.bostonglobe.com/2021/08/25/opinion/weak-constiutional-case-vaccine-mandates/.
[5] Buck v. Bell, 274 U.S. 200 (1927)
[6] Tapio, Nicholas. “A Weakness in the Argument for Vaccine Mandates – The Boston Globe.” bostonglobe.com. The Boston Globe, August 25, 2021. https://www.bostonglobe.com/2021/08/25/opinion/weak-constiutional-case-vaccine-mandates/.
[7] Mariner, Wendy K, George J Annas, and Leonard H Glantz. “Jacobson v Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law.” American Journal of Public Health. American Journal of Public Health 2005, April 2005. https://www.ncbi.nlm.nih.gov/pmc/ articles/PMC1449224/.
[8] Ingram, Alexia. “McFall v. Shimp and the Case for Bodily Autonomy.” Harvard Undergraduate Law Review. Harvard Undergraduate Law Review, April 1, 2021. https://hulr.org/spring-2021/mcfall-v-shimp-and-the-case-for-bodily-autonomy.
[9] McFall v. Shimp, 10 Pa. D. & C. 3d 90 (1978)
[10] “Personal Autonomy.” Legal Information Institute. Cornell Law School. https://www.law.cornell.edu/wex/personal_autonomy