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: 10th 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
