• Elizabeth Hogue, Esq

The Legal Case for Vaccine Mandates

A case heard by the U.S. Supreme Court, Jacobson v. Commonwealth of Massachusetts [197 U.S. 11 (1905)], still serves as a key court decision that supports vaccine mandates under the Constitution of the United States. This case involved the validity of Massachusetts statutes that said that boards of health shall require and enforce the vaccination and revaccination of residents against smallpox. Plaintiff Jacobson refused to be vaccinated. Criminal charges were brought against him and he was found guilty. He was ordered to pay a fine of $5.00 and to be incarcerated until this fine was paid.

Jacobson’s conviction was upheld by the Supreme Court of Massachusetts. The primary basis for this decision was that most members of the medical profession regarded periodic vaccination as a preventive of smallpox. While the medical profession recognized the possibility of injury to individuals from carelessness in the performance of vaccinations or even without carelessness, they generally considered the risk of such injuries too small to be seriously weighed against the benefits of vaccination.

The U.S. Supreme Court addressed this question: Is the statute inconsistent with the liberty that the Constitution of the United States secures to every person against deprivation by the state? The Supreme Court first said that the authority of the state to enact statutes requiring mandatory vaccination is based on the police power. Police power gives states the authority to safeguard the public health and safety. The state has considerable discretion to decide the mode or manner to accomplish this result so long as there is no violation of the U.S. Constitution.

Jacobson insisted that his liberty was invaded when the state subjected him to a fine or imprisonment for neglecting or refusing to submit to vaccination. He also claimed that a compulsory vaccination law is unreasonable, arbitrary, oppressive and hostile to the inherent right of every free man to care for his own body and health in such a way as seems best to him. According to Jacobson, mandatory vaccinations were nothing short of assaults upon his person.

The Court said, however, that the liberty secured by the U.S. Constitution does not import an absolute right in each person to be wholly free from restraint at all times and in all circumstances. There are many restraints to which every person is necessarily subject for the “common good.” If this were not the case, organized society could not exist. Members of society are only entitled to “liberty regulated by law.” A community, said the Court, has the right to protect itself against an epidemic of disease that threatens the safety of its members. The Court then said:

The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action, for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not. Any other basis would conflict with the spirit of the Constitution…

The Court then concluded that, “While we do not decide, and cannot decide, that vaccination is a preventive of small pox, we take judicial notice of the fact that this is the common belief of the people of the state, and, with this fact as a foundation, we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power.”

The Court acknowledged that:

[Jacobson] offered to prove that vaccination ‘quite often’ caused serious and permanent injury to the health of the person vaccinated; that the operation ‘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; that ‘quite often’ one’s blood is in a certain condition of impurity when it is not prudent or safe to vaccinate him; that there is no practical test by which to determine ‘with any degree of certainty’ whether one’s blood is in such condition of impurity as to render vaccination necessarily unsafe or dangerous; that vaccine matter is ‘quite often’ impure and dangerous to be used, but whether impure or not cannot be ascertained by any known practical test; that the defendant refused to submit to vaccination for the reason that he had, ‘when a child,’ been caused great and extreme suffering for a long period by a disease produced by vaccination; and that he had witnessed a similar result of vaccination, not only in the case of his son, but in the cases of others.

In response, the Court said that an affirmative answer to these arguments would practically strip legislatures of the ability to care for the public health and safety when endangered by epidemics of disease. The Court said that it was “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 local government, should have the power thus to dominate the majority when supported in their action by the authority of the state.”

As the Court acknowledged, there is certainly room to disagree with vaccination mandates, but the Courts are clear that the “common good” must prevail.

Elizabeth E. Hogue, Esq.

Office: 877-871-4062

Fax: 877-871-9739

E-mail: ElizabethHogue@ElizabethHogue.net

Twitter: @HogueHomecare

©2021 Elizabeth E. Hogue, Esq. All rights reserved.

No portion of this material may be reproduced in any form without the advance written permission of the author.

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