HB 679 addresses the question of when, if ever, a government can mandate a medical intervention. By proposing to prohibit mandates for childhood immunizations that are not clinically proven to stop transmission of disease, HB 679 answers this question the same way that the U.S. Supreme Court has: from a legal perspective, mandates are permissible, but only in limited circumstances. If you agree that any ability the State has to impose medical mandates should be carefully circumscribed, then consider voicing your support for this bill.
We all cherish our own bodily integrity, including the right to refuse unwanted medical interventions. Some see this right as absolute, and argue that governments have no business mandating any medical interventions at all. But even people who are less absolutist would agree as a matter ethics that a state should not mandate an intervention like a vaccine unless, at a minimum, the intervention meets three conditions: (1) it is safe; (2) it is necessary to stopping the spread of a dangerous disease that poses a threat to public health; and (3) it prevents transmission of the disease.
Reflecting this sentiment, the leading U.S. Supreme Court case on vaccine mandates, Jacobson v. Massachusetts, 197 U.S. 11 (1905), suggests that the U.S. Constitution prohibits vaccine mandates unless the required vaccine actually stops transmission of a dangerous disease that poses a public health threat.
Many people are familiar with Jacobson, because although the case dates back to 1905, it is still the leading U.S. Supreme Court case about vaccine mandates, having been cited by courts hundreds of times in the last five years, most often to uphold mandates. However, many are unfamiliar with the limits Jacobson imposes on vaccine mandates.
Jacobson upheld a Massachusetts statute that allowed local health boards to enact vaccine mandates if a vaccine was “necessary” to protect public health. The case arose during a smallpox surge, when the Cambridge Board of Health mandated smallpox vaccination on pain of a $5 penalty, and Mr. Jacobson, who was convicted of violating the mandate, argued that the state statute violated his due process liberty interests under the U.S. Constitution.
Jacobson states unequivocally that “a community has the right to protect itself against an epidemic of a disease that threatens the safety of its members,” and thus, “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint as the safety of the general public may demand.” 197 U.S. at 31, 34 (italics added).
Jacobson does not say, however, that the need to balance individual liberty against the common good justifies any and all vaccine mandates, regardless of whether a vaccine actually stops transmission. Rather, the Jacobson Court found that the mandate did not violate due process only because, among other things, (1) the Cambridge Health Board determined that the mandated vaccine was necessary to protect public health from the serious disease of smallpox, and (2) the prevailing understanding was that the vaccine in fact stopped transmission of smallpox. In other words, the Court carefully scrutinized both the justification for the mandate, and its tailoring towards the stated end.
Jacobson laid a foundation for the notorious 1927 Buck v. Bell decision, in which the Supreme Court upheld a statute allowing compulsory sterilization of an inmate at a state institution for the “feeble-minded.” Citing Jacobson, Justice Oliver Wendell Holmes, Jr., wrote, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” Since Jacobson and Buck, however, U.S. Supreme Court case law has evolved to recognize bodily integrity rights, including the right to refuse unwanted medical interventions. Additionally, the Court has recognized the right to informed consent as being “deeply rooted in this Nation’s history and constitutional traditions.”
Due to Jacobson’s dark legacy and evolution of the law surrounding bodily integrity and informed consent, many argue that it’s time to leave Jacobson behind, and to assess the legality of vaccine mandates using a more modern approach. Certainly, modern jurisprudence would require even greater scrutiny of any claimed justifications for mandated interventions, and thus make it more difficult for courts to uphold mandates for vaccines that don’t stop transmission.
But regardless of whether Jacobson remains the leading case on vaccine mandates or the Supreme Court takes a new approach, HB 679 is a meaningful step forward; it makes sense as a matter of ethics and law, and it will help to protect the liberty interests that we all cherish.
