Australia's decision will do more to advertise the anti-vax position than quietly letting the tennis star play would have.
Vaccination, the Law, and the Common Good
Leaving aside the vagaries of popular opinion or personal predilection—as judges are supposed to do—when should a longstanding precedent be re-examined? I think there might be general agreement on three reasons: new knowledge, changed circumstances, and alterations in other laws to which adjustment is needed so that the law remains a reasonably consistent whole. Qualifying these reasons are two caveats: Settled laws create expectations on which people rely in making choices, which it would sometimes be unfair to disrupt, and justice itself requires treating similar cases similarly, which on opposite sides of a change they would not be. The goodness of equal treatment and settled expectations explain the presumption in favor of fixed precedent in a common-law environment, but in a dynamic society like our own, knowledge develops—historical, scientific, ethical—and circumstances change, leading to legal change, which can beget more legal change as law strives to remain consistent with itself.
Should Jacobson v. Massachusetts be reconsidered? Decided by the United States Supreme Court in 1905—exactly half the lifetime of the Constitution ago—this case upheld a mandatory vaccination order as constitutional, with sweeping language invoking the common good and dismissing a claim of an individual liberty right. The case is routinely and confidently cited as the controlling precedent in legal cases about covid vaccine mandates today, for example by Judge Frank Easterbrook in a three-page opinion the other week upholding Indiana University’s requirement that all students be vaccinated before enrolling for the fall semester. In the essay that follows—it is not a legal brief—I want to call into question whether the precedent is adequate to the purpose and to suggest changes in circumstance, knowledge, and law that might give pause, both to judges faced with legal cases and to citizens considering the justice and the prudence of vaccine mandates in our current predicament.
Henning Jacobson was a Lutheran minister in Cambridge, Massachusetts, born a Swede but long an American citizen when an outbreak of smallpox in 1902 led the city’s board of health to require citizens to be vaccinated (or re-vaccinated) or pay a $5 fine. Jacobson’s objection was not religious but personal: He had suffered a bad reaction when vaccinated as a child in Sweden, as had his young son a few years before, and he refused the vaccine. Massachusetts law had empowered local health authorities to require vaccination in medical emergencies, making an exception for young children and, the Court presumed, for adults whom doctors judged medically unfit to be vaccinated. Jacobson apparently did not seek a doctor’s opinion about his own condition, claiming instead an individual constitutional right to determine his own medical care and citing several experts who disputed the safety of vaccines. By the time his case reached the Supreme Court, smallpox had been contained in Massachusetts. He paid his fine and lived another twenty-five years.
The Supreme Court’s opinion in the case was written by Justice John Marshall Harlan, then in his third decade of service on the Court. Known as the “Great Dissenter” for standing alone in opposition to large majorities in civil rights and civil liberties cases, Harlan often wrote for Court majorities when state laws were upheld as valid exercises of the police power, for example, in Mugler v. Kansas, the 1887 case upholding a state prohibition law. He wrote that the state legislature rather than the Court has authority to determine whether “the public health, the public morals, and the public safety” might best be achieved by forbidding the manufacture and sale of alcohol in the state, even to the point of allowing the state to condemn a brewery as a public nuisance and abate it. In Jacobson, Harlan takes a similarly expansive view of the police power:
the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. 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.
To be sure, the exercise of the police power must not be arbitrary or unreasonable, Harlan notes, but for the state legislature to invest a local board of health with authority to order vaccination “was not an unusual nor an unreasonable or arbitrary requirement. Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”
The Court’s argument upholding compulsory vaccination does not simply defer to the state’s judgment of the necessity and safety of the practice; to establish that the law is reasonable and not arbitrary, it addresses the evidence behind it. Jacobson’s attempt to introduce testimonials from vaccine skeptics had been rejected by the lower court, a judgment upheld first by the Supreme Judicial Court of Massachusetts, then by the US Supreme Court. Wrote Harlan:
Those offers [by Jacobson to introduce evidence], in the main, seem to have had no purpose except to state the general theory of those in the medical profession who attach little or no value to vaccination as a means of preventing the spread of smallpox, or who think that vaccination causes other diseases of the body. What everybody knows, the court must know, and therefore the state judicially knew, as this court knows, that an opposite theory accords with common belief and is maintained by high medical authority. We must assume that, when the statute was passed, the legislature of Massachusetts was not unaware of these opposing theories, and was compelled, of necessity, to choose between them. It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury.
Harlan refers to “judicial knowledge” several times in the opinion, also to “common knowledge” as well as “common belief,” and to medical knowledge as well. “Judicial knowledge” is a technical term, defined, perhaps tongue-in-cheek, by Black’s Law Dictionary as “knowledge of that which is so notorious that everybody, including judges, knows it, and hence need not be proved.” Here what everybody knows is quoted from the opinion of the Massachusetts high court:
the facts that for nearly a century most of the members of the medical profession have regarded vaccination, repeated after intervals, as a preventive of smallpox; that while they have recognized the possibility of injury to an individual from carelessness in the performance of it, or even in a conceivable case without carelessness, they generally have considered the risk of such an injury too small to be seriously weighed as against the benefits coming from the discreet and proper use of the preventive; and that not only the medical profession and the people generally have for a long time entertained these opinions, but legislatures and courts have acted upon them with general unanimity.
The most sweeping statement comes from a contemporaneous case decided by the New York Court of Appeals, which Harlan also quotes: “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.” In short, on matters of opinion, even medical opinion, the Court will not second-guess the people’s representatives, though Harlan includes for good measure an extensive footnote documenting the practice of vaccination worldwide.
Later the same week Jacobson was decided, the Supreme Court heard arguments in Lochner v. New York, where a challenge was brought against the state’s maximum hours law for bakers, which the Court struck down as a violation of the liberty to contract. Justice Oliver Wendell Holmes, who had joined the majority in Jacobson, famously dissented in Lochner, accusing the Court of imposing its own economic theory upon New York, overriding “the right of a majority to embody their opinions in law.” He was not the only dissenter.
Separately, Justice Harlan, joined by two others, wrote a less sweeping opinion that took seriously the claim that the law was designed to protect the health of bakers and thus fell within the state’s police power—a claim the majority had dismissed as pretextual. Harlan cites a treatise on “Diseases of Workers” and adds that he and his colleagues “judicially know” that workers’ hours has been a subject of legislation by Congress and many other jurisdictions. The difference between the dissents may seem subtle to us, but it was important enough to Harlan and the two who agreed with him that they did not sign on to Holmes’ opinion, and important enough to Holmes that he did not sign on to Harlan’s: It has to do with whether the police power is a blank check for social legislation, as Holmes believed, or had to be parsed according to its categories and precedents. Two decades later, with Harlan long gone from this world, Holmes cited Jacobson in the notorious sterilization case, Buck v. Bell. A decade earlier, with Holmes still in Massachusetts, Harlan had (alone) rejected the police-power argument made in defense of Jim Crow laws in Plessy v. Ferguson.
So, should Jacobson v. Massachusetts be reconsidered? Have changes in knowledge, circumstances, or the law itself rendered Jacobson obsolete? The first thing to notice is that at the time the case was decided, “vaccination” was not a generic noun: It meant smallpox vaccination, the word itself being derivative from the scientific name for cow-pox, the virus discovered by Edward Jenner to build immunity against its more virulent relative. Only in the late nineteenth century were analogous measures first developed against other diseases; the Oxford English Dictionary assigns the first use of the term generically to an article in Nature in 1891, attributing the general use of the term to Louis Pasteur. New inoculations for other diseases were developed in the decades that followed, with complete success eliminating smallpox and minimizing outbreaks of many diseases worldwide by the end of the twentieth century. It’s a remarkable and even heroic tale—but one that almost entirely postdates Jacobson, whose discussion of “common knowledge” seems increasingly irrelevant to a world where trust in medical authority and scientific protocols guides legislative practice and vaccine mandates involve soldiers, schoolchildren, and sojourners—at least until recent weeks.
Of course part of the common knowledge in the early twentieth century about smallpox was how deadly a disease it was: Its fatality rate is estimated at 30%, it infected people of all ages, and those who survived often carried the marks of their illness for the rest of their lives. There was no successful treatment discovered before the disease was eliminated by the vaccine. Any reader of the news in the past two years can see how different smallpox is from today’s coronavirus, at least what is known about it thus far—and of course part of the difference is how well-known the Court considered smallpox and its effects to be when giving blanket authorization to the police power to combat it. It might well be that a significantly less virulent, more treatable disease with a vastly differential effect on different population cohorts would have led the Court to the same decision—certainly for Holmes it would have—but Harlan’s assessment of rationality and non-arbitrariness might well have been more complex.
Another part of common knowledge about disease, at least through the middle of the twentieth century, concerns natural immunity, that is, the immunity acquired by someone who has had the disease in question and survived. This effect was noted as early as Thucydides’ account of the plague in Athens at the time of the Peloponnesian War and was taken for granted during European outbreaks of the plague. While it is not discussed in Jacobson, there is some acknowledgment in the one lengthy footnote, referring to a study that contrasted susceptibility to smallpox infection of the vaccinated, the unvaccinated, and those who had survived a previous infection. So often missing in the current debate about covid vaccination requirements is consideration of natural immunity, now estimated to be possessed by up to one-third of the American population. Since the vaccines have been shown to possess some risk, like all vaccines, and since there is an indication that natural immunity might be stronger than what the vaccines provide, how can it possibly be rational to mandate vaccination of those who have recovered from the disease?
If these considerations of increased knowledge and changing circumstances suggest reconsideration of Jacobson or at least call into question its applicability to the current situation, changes in the law since 1905 are if anything more salient. While Holmes’ approach won out at first, particularly after the “Constitutional Revolution” of 1937, developing into the “rational basis” test—under which courts uphold any legislation for which a plausible rational explanation can be given—the Court quickly invented alternative tests for “suspect classifications” like race or when fundamental rights are at stake, and then developed a sliding scale of “intermediate scrutiny” for legislation that differentiates on the basis of sex or several other characteristics or when important but not fundamental rights are at stake. Before getting into the minutiae of judicial doctrine, much of it unsettled, perhaps at least the following can be asserted: Unless one is willing to accept the discredited Buck v. Bell as good precedent, the permissive rational basis test is not sufficient as an interpretation of the holding in Jacobson, pace Judge Easterbrook, or else Jacobson falls with Buck.
The liberty right Henning Jacobson had asserted and that the Court discounted has been given fresh expression in several opinions authored by the late Chief Justice William Rehnquist, first in Cruzan v. Director, Missouri Dept. of Health (1990), then in Washington v. Glucksberg (1997). In the first, Rehnquist identifies a common-law right of informed consent to medical treatment, and therefore refusal of treatment, noting that “at common law, even the touching of one person by another without consent and without legal justification was a battery,” though in the case at hand he allows the state to require “clear and convincing evidence” of prior refusal on the part of a patient who had become incompetent. Jacobson is mentioned and interpreted as balancing the individual’s liberty interest against the state’s interest in preventing disease. In Glucksberg, Rehnquist declines to expand that liberty interest from a right to refuse treatment to a right to physician-assisted suicide, showing there is no basis for the latter in “our Nation’s legal history, traditions, and practices,” indeed that “for over 700 years, the Anglo-American common law tradition has punished or otherwise disapproved of both suicide and assisting suicide.” Between the two cases came Rehnquist’s partly concurring, partly dissenting opinion in Planned Parenthood v. Casey (1992), where he used the same analysis—treating bodily autonomy as a liberty interest to be balanced against the state’s interest in regulation—to recommend upholding a Pennsylvania law that restricted, but did not forbid, abortion.
The Casey majority, of course, upheld what it called the “central holding” in Roe v. Wade, a woman’s right to terminate her pregnancy without undue burdens placed by the state, on the grounds that arguments favoring its reversal were insufficient, not that Roe was correctly decided in the first place or that it established a fundamental constitutional right (as Justice Blackmun claimed in his separate opinion and as Rehnquist denied). With the Court having accepted the case of Dobbs v. Jackson Women’s Health Organization for the upcoming October 2021 term, in which the petitioners ask that Roe be overturned, Rehnquist’s analytical framework appears as a possible middle position between affirming Roe and Casey on the one hand and finding a constitutional right to life demanding state protection on the other. If the Court takes Rehnquist’s cue, Jacobson is probably safe as a precedent, at least if understood according to his balancing framework. If the Court takes either of the other approaches, its future is more in doubt.
There is one more dimension of constitutional development since Jacobson that seems to me worth mentioning. The police power described in that case and in the cases on which it relies usually included the power to secure not only a community’s health and safety, but also its morals. It is easy enough to see how these three concerns are often interwoven; for example, throughout the pandemic, we have often been reminded—by political commentators, officials, and churches—that showing concern for one another’s health is a moral duty, even if exhortations have often been short on analysis of the complexity of that duty (for example, that the sacrifices are not evenly distributed). But on issues from the suppression of obscenity to the recognition of marriage, the courts have eviscerated the capacity of states and communities to use their traditional police power to support and enforce community morality, prompting dissenting justices to wonder whether the promotion of morals is even recognized any longer as a legitimate function of government. One wonders whether the much-decried emphasis in our society on rights to the neglect of common good might not be a consequence of the severing of the three traditional, and traditionally interlocking, concerns of the police power. Might the suppression of morals law be an acid that is bound to undermine the rule in Jacobson—or is it possible that the renewed appreciation of Jacobson might elicit a reconsideration of the responsibility of the state to shore up the moral environment in which its citizens live?
Harlan’s opinion in Jacobson is clear in determining, not the justice or the value of vaccination per se, but the right of the legislature and those they designate to decide the question of what public health requires, provided they act within reason and not arbitrarily. Still, no matter how often courts say they are not pronouncing on the substance of the law, only on who gets to decide, the fact that courts say what the law is in concrete cases tends to win their judgments a substantive interpretation in the public at large. The blanket endorsement of vaccination in Jacobson, extended as it has been with the widened meaning of the word itself, has likely contributed—at least in the silence of contemporary legislation—to the dictatorial pronouncements of executive authorities inventing new mandates, even as the length of the emergency has extended far beyond the six months of the Roman dictator’s term. Perhaps one can hope that state legislators, who after all have the police power, would reconsider Jacobson—not in the sense of revising judicial precedent, but in the sense of appreciating the rich array of concerns that the common good entails, including not only bodily health and safety but our traditions of liberty and civil peace.