When the Supreme Court Ruled a Vaccine Could Be Mandatory
A 1905 decision provided a powerful and controversial precedent for the flexing of a government authority.
In 1901 a deadly smallpox epidemic tore through the Northeast, prompting the Boston and Cambridge boards of health to order the vaccination of all residents. But some refused to get the shot, claiming the vaccine order violated their personal liberties under the Constitution.
One of those holdouts, a Swedish-born pastor named Henning Jacobson, took his anti-vaccine crusade all the way to the U.S. Supreme Court. The nation’s top justices issued a landmark 1905 ruling that legitimized the government’s authority to “reasonably” infringe upon personal freedoms during a public health crisis by issuing a fine to those who refused vaccination.
A Smallpox Panic and a $5 Fine
In 1901, the city of Boston registered 1,596 confirmed cases of smallpox, a highly contagious, fever-inducing illness infamous for causing a severe rash on the face and arms that often left survivors scarred for life. In Boston alone, 270 people died from smallpox during the extended 1901 to 1903 outbreak. That’s why public health officials in Boston and neighboring Cambridge issued their compulsory vaccination orders, hoping to reach the 90 percent vaccination rate required for herd immunity.
Jacobson, who served as the pastor of a Swedish Lutheran church in Cambridge, had been vaccinated against smallpox in Sweden when he was 6 years old, an experience that he later said caused him “great and extreme suffering.” So when Dr. E. Edwin Spencer, chairman of the Cambridge Board of Health, knocked on the Jacobsons’ door on March 15, 1902, the pastor refused vaccination for himself and his son.
A few months later, Cambridge was in full-fledged smallpox “panic” with the city ordering the closure of all schools, public libraries, and churches to stem the spread of the disease. Police officers accompanied health officials like Spencer, who went door to door vaccinating as many as 100 people a day.
But while the Cambridge vaccine order was compulsory, it wasn’t a “forced” vaccination. People like Jacobson who refused to get vaccinated faced a $5 fine, the equivalent of nearly $150 today. On July 17, 1902, Dr. Spencer issued a criminal complaint against Jacobson and other anti-vaccine activists to collect that $5 fine.
Jacobson Goes to Court Amid Anti-Vaccination Uproar
The broader battle over the validity of vaccination science reached a fever pitch during the smallpox outbreak. Anti-vaccination groups, citing alleged cases of death and deformity from bad reactions to smallpox vaccine, called compulsory vaccination “the greatest crime of the age,” claiming that it “slaughter[s] tens of thousands of innocent children.”
In response, newspaper editorials characterized the smallpox vaccination controversy as “a conflict between intelligence and ignorance, civilization and barbarism.” The New York Times dismissed anti-vaccine activists as “a familiar species of cranks” who were “deficient in the power to judge [science].”
It was against this heated backdrop that Jacobson fought his $5 fine, first in a state trial court and then by appeal in the Massachusetts Supreme Judicial Court. Jacobson wanted to present evidence that vaccines themselves were dangerous and ineffective, but the judges wouldn’t hear it. Instead, Jacobson’s chief argument became, “Compulsion to introduce disease into a healthy system is a violation of liberty,” specifically the personal liberty he believed was guaranteed by the U.S. and Massachusetts constitutions.
Supreme Court Sets a Public Health Precedent
The highest court in Massachusetts also rejected Jacobson’s claims, siding instead with the authority of public health officials to determine the best methods for fighting an epidemic. Not ready to give up, Jacobson appealed his case to the U.S. Supreme Court in 1905, where he was accompanied by officers of the Massachusetts Anti-Compulsory Vaccination Association.
In the case known as Jacobson v. Massachusetts, Jacobson’s lawyers argued that the Cambridge vaccination order was a violation of their client’s 14th Amendment rights, which forbade the state from “depriv[ing] any person of life, liberty, or property, without due process of law.” A question, then, was whether the “right to refuse vaccination” was among those protected personal liberties.
The Supreme Court rejected Jacobson’s argument and dealt with the anti-vaccination movement a stinging loss. Writing for the majority, Justice John Marshall Harlan acknowledged the fundamental importance of personal freedom, but also recognized that “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.”
This decision established what became known as the “reasonableness” test. The government had the authority to pass laws that restricted individual liberty if those restrictions—including the punishment for violating them—were found by the Court to be a reasonable means for achieving public good.
“Bottom line, there had to be some kind of real and substantial connection between the law itself and a legitimate purpose, which was the public’s health, safety, and welfare,” says Anthony Sanders at the Institute for Justice.
Compulsory School Vaccinations and Forced Sterilizations
The Jacobson decision provided a powerful and controversial precedent for the extent of government authority in the early 20th century.
In 1922, the Supreme Court heard another vaccination case, this time concerning a Texas student named Rosalyn Zucht who was barred from attending public school because her parents refused to have her vaccinated. Zucht’s lawyers argued that the school district’s ordinance requiring proof of vaccination denied Rosalyn “equal protection of the laws” as guaranteed by the 14th Amendment.
The Supreme Court disagreed. Justice Louis Brandeis wrote in the unanimous decision: “Long before this suit was instituted, Jacobson v. Massachusetts had settled that it is within the police power of a state to provide for compulsory vaccination. These ordinances confer not arbitrary power, but only that broad discretion required for the protection of the public health.”
In a far darker chapter, the Jacobson decision also provided judicial cover for a Virginia law that authorized the involuntary sterilization of “feeble-minded” individuals in state mental institutions. In the 1920s, eugenics enjoyed wide support in scientific and medical circles, and the Supreme Court justices were not immune.
In the infamous 1927 case Buck v. Bell, the Supreme Court accepted the questionable “facts” presented in the lower court cases that a young Virginia woman named Carrie Bell hailed from a long line of “mental defectives” whose offspring were a burden on public welfare.
“The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes (Jacobson v Massachusetts, 197 US 11). Three generations of imbeciles are enough,” wrote Justice Oliver Wendell Holmes in a chilling opinion.
The Buck decision opened the floodgates and by 1930, a total of 24 states had passed involuntary sterilization laws and around 60,000 women were ultimately sterilized under these statutes.
“Buck v. Bell is the most extreme and barbaric example of the Supreme Court justifying a law in the name of public health,” says Sanders.
Supreme Court Rules on Pandemic Lockdown Orders
A lot changed since 1905, including the ways in which the Supreme Court decides if certain laws and statutes violate an individual’s constitutional rights. Starting in the second half of the 20th century, the Court began to recognize certain constitutional rights as “fundamental,” including the freedoms of speech and religion, and personal decisions about marriage, contraception, and procreation.
Near the beginning of the COVID-19 pandemic, as states issued lockdown orders that closed businesses and prohibited large gatherings, several judges justified those restrictions by citing Jacobson v. Massachusetts, since it was the most recent Supreme Court ruling explicitly addressing state powers during a disease epidemic, even if it was 115 years old.
But in a reversal, the Supreme Court ruled in 2020 against broadly applying the logic of Jacobson to all COVID-19 lockdown restrictions. In Roman Catholic Diocese Of Brooklyn, New York v. Andrew M. Cuomo, the Court decided that the State of New York violated the constitutional rights of citizens wanting to safely gather in churches and synagogues during the pandemic. The reasoning was that the lockdown laws barred religious gatherings altogether while still allowing secular businesses to operate at a limited capacity.
“Jacobson hardly supports cutting the Constitution loose during a pandemic,” wrote Justice Neil Gorsuch for the 5-4 majority. “That decision involved an entirely different mode of analysis, an entirely different right, and an entirely different kind of restriction.”