Are Mandatory Vaccinations Constitutional?

Coronavirus and Smallpox do not warrant the same intervention.

Could mandatory vaccinations for Covid-19 be a constitutionally permissible exercise of state authority?

Americans are responding differently to the government response to the Covid-19 pandemic.  Generally, the recommended (or required, in some cases)  mandate from government at local, state, and federal levels, includes at least 6’ social distancing, and mask-wearing. Rarely are these requirements issued as a result of geographically -specific, case-driven, studies. Usually, they have been pronouncements made because of media and political pressure without regard to actual corona-virus impacts in the immediate area.  Some Americans are happy to follow those mandates because they either believe in the prophylactic effect of those measures, or the effort is small compared to the inconvenience or the risk of negative social pressure. Other Americans are reluctant to comply without more science, or more of a causal connection related to actual threat statistics.  Some people refuse to comply with government mandates just because it seems like excessive intervention in violation of individual personal rights (liberties).

Depending on the willingness of those people above mentioned to do their own research, and to base their positions on science and law, they might incorporate one of two US Supreme Court cases from 1905; Lochner v New York, and Jacobson v. Massachusetts.   A searcher of truth will rely on the best science available, and be particularly respectful of conflicting data and opposing conclusions drawn from the same research. (Sadly, I KNOW this is often not true). In a more perfect world, laws and policies would always consider the best science available, and consistent with jurisprudence, would never be tolerant of government intervention that was more than the minimum absolutely necessary. Probably, every person reading this will be aware of many examples where government has not been faithful to  this rule.   

Jacobson v. Massachusetts and Lochner v. New York are both 1905 Supreme Court cases.  Both cases deal with private (individual) rights in tension with public duties and the rights of the public.  Both are context-specific, so understanding and applying  the legal principles cannot be accomplished without the context of the case fact patterns and narrative. The two cases "say" opposite things if one does not understand (and apply) the context.

In 1902, A Massachusetts statute granted city boards of health the authority to require vaccination “when necessary for public health or safety.” When smallpox surged in Cambridge, Massachusetts, the city’s board of health issued an order pursuant to this authority that required all adults to be vaccinated to halt the disease. The statutory penalty for refusing vaccination was a monetary fine of $5 (about $100 today). There was no provision for actually forcing vaccination on any person. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/ )

Henning Jacobson refused vaccination, claiming that he and his son had had bad reactions to earlier vaccinations. The Massachusetts Supreme Judicial Court found it unnecessary to worry about any possible harm from vaccination, because no one could actually be forced to be vaccinated: “If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of $5.” (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/)

In Jacobson, The Supreme Court had no difficulty upholding the state’s power to grant the board of health authority to order a general vaccination program during an epidemic. No one disputed, and the Constitution confirmed, that states retained all the sovereign authority they had not ceded to the national government in the Constitution. (See: 10^th Amendment to the U.S. Constitution) Jacobson was the rare case in which a state’s jurisdiction was not questioned—because no one claimed that the federal government should control a local smallpox epidemic. Instead, the question was whether the state had overstepped its own authority and whether the sphere of personal liberty protected by the Due Process Clause of the 14th Amendment38 included the right to refuse vaccination. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/)

Jacobson must be understood in the context of the smallpox epidemic.  Smallpox was a devastating disease. On average, about 30% of people who got it died. Those who survived were usually left with scars, which were sometimes severe. Smallpox was equally severe across age, sex, and economic conditions.  Smallpox was a genuine public health threat. Covid-19, on the other hand has a mortality rate of less than 1% (probably less than a half of one percent). It is most dangerous to people with compromised immune systems and people over 60 years of age.  It is NOT the same threat, and does NOT require the same counter-measures.

The Court (in Jacobson) mentioned 2 justifications for the Massachusetts law. First, it found that the state may be justified in restricting individual liberty “under the pressure of great dangers” to “the safety of the general public.” The statute, by its terms, encroached on liberty only when “necessary for the public health or safety.” The smallpox epidemic proved the danger to the public. Second, by using the language of earlier decisions, the Court said that laws should not be arbitrary or oppressive. It also suggested that the state should use means that have a “real or substantial relation” to their goal. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/)

Lochner is a case about the right of people to enter into contracts, to earn an honest living, and the limitations on government authority to interfere with that process. In America, the right to labor and earn an honest living is considered a God-given (inalienable) right which government is obligated to protect.  BOTH cases articulate important legal principles that relate to the current pandemic.

[below is excerpted and edited from Constitutioncenter.org]

The story of the Court’s 1905 opinion in Lochner v. New York begins in 1895, when New York State passed the Bakeshop Act, one of the state’s earliest labor laws, in an effort to regulate sanitary and working conditions in New York bakeries. At the time, Joseph Lochner was a Bavarian immigrant who owned Lochner’s Home Bakery in Utica. In 1899, Lochner was charged with violating the Bakeshop Act, as he had allowed an employee to work for more than sixty hours in one week. For this, Lochner was fined the requisite $25. Two years later, in 1901, Lochner was charged and convicted for a second offense of the Bakeshop Act’s 60-hour provision, this time paying a $50 fine.

Lochner’s attorney, Henry Weismann, argued on behalf of Lochner that the Bakeshop Act violated the Constitution’s protection of the “liberty of contract,” or an employer’s right to make a contract with his employee free from governmental interference.

The Court said that, in order to approve of a state’s use of its police powers to regulate contracts, the question was whether the legislation was:

    “a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?”

Therefore, because the Court found that the baking industry was no more or less healthful than other common professions, and that the law was not related to the health of the employees, it was an invalid exercise of the state’s police powers.

Lochner, though not the first case to do so, found that the due process rights of the 14th Amendment were not just “procedural,” but were also “substantive.” While “procedural” due process rights limit the means by which the state may deprive a person of their life, liberty, or property, “substantive” due process rights limit the types of activities and rights that the government may regulate by deeming them to be fundamental. (SOURCE: Constitutioncenter.org)

A lot can change in 100 years.  While the states’ sovereign power to make laws of all kinds has not changed much during the past century, what HAS changed is the US Supreme Court’s recognition of the limited authority of government and the mission of protection of that individual liberty.

Smallpox was a devastating disease. On average, about 30% of people who got it died. Those who survived were usually left with ugly scars. Smallpox is caused by the variola virus, a DNA virus of the genus Orthopoxvirus. Humans are the only known reservoir for this virus. It is transmitted from person to person, and natural infection occurs by inhalation of respiratory droplets or contact with infected material on mucous membranes.

Similarly, Covid-19 (SARS Covid-2) is spread by inhalation or contact, but non-human animals may also host this virus. Persons with incompetent immune systems are at risk of complications following vaccinations.

During the second half of the 20th century, the US Supreme Court recognized that the liberty protected by the 14th Amendment included most of the rights guaranteed by the Bill of Rights.43 Individuals were protected from an abuse of state and federal power. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449224/)

In light of both Jacobson and Lochner, and consistent with U.S. Constitutional principles, The federal government does not have national authority to required vaccinations. This is ONLY a power held by state governments, and then ONLY when there is compelling evidence that such intervention is the least restrictive means to achieve legitimate state interests.

Author’s conclusion: It is not hard to imagine a situation where the danger to the public is so great as to warrant a government “solution” that would overcome objections about personal liberty. But the Covid-19 vaccine is not it.   Not by a longshot.
JAS
Dec 2020