What exactly is a vaccine mandate?
Before the current pandemic, I had never read the Massachusetts Supreme Judicial Court’s opinion in Commonwealth v. Jacobson. That case observed, “[i]f 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 the penalty of $5.” I was struck by that sentence.
I had long assumed that Jacobson upheld the state’s power to forcibly vaccinate someone. For example, states routinely force people into quarantines. Why couldn’t states take the antecedent step of inoculating people, even against their wishes, to avoid the need to quarantine? In Buck v. Bell, Justice Holmes analogized the forcible sterilization of Carrie Buck to the forcible vaccination of Henning Jacobson. But my assumption was wrong. And I suspect I am not alone. Most lawyers never actually read Jacobson, let alone the lower court opinion. The case does not appear in any casebook I have reviewed. And, I doubt most judges who have cited Jacobson in the past 6 months have bothered to read both opinions. Rather, I suspect most lawyers and judges are familiar with Buck v. Bell, and rely on Holmes’s characterization.
This assumption gives rise to an important question: What exactly is a vaccine mandate?In the concept of a vaccination, there are two approaches to understand a “mandate.” The first approach reflects the law at issue in Jacobson. Those who refuse to be vaccinated must pay a nominal fine. Five dollars is roughly $150 in present-day value. I think it was significant there was no jail time associated with this offense. Throwing people in jail for refusing to be vaccinated would have presented a harder case. The second approach reflects a different type of law: people who refuse to be vaccinated will be forcibly vaccinated by the state. That is, the state would forcibly restrain someone and inject them with the vaccine. That law, I suspect, would have been declared unconstitutional by the Lochner Court. (Lochner and Jacobson were decided two months apart.)
In Buck v. Bell, Justice Holmes had to rely on the second conception of the mandate to uphold Virginia’s sterilization act. Carrie Buck was not given the option to pay a nominal fine in exchange for keeping her reproductive functions. Nor was Buck given the option to serve a jail sentence for refusing to submit to the surgery. She had one option: submit to the procedure. Holmes needed some precedent to support this outcome. And he looked to Jacobson. Holmes concluded that “the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” But Jacobson did not actually sustain “compulsory vaccination.”
I’m not sure that any state has ever relied on the second approach to achieve “compulsory vaccination.” Unvaccin
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