State and local governments in the United States have mandated immunizations as a prerequisite for attending public schools for quite some time. The Supreme Court has heard several challenges to these mandates and has consistently ruled the mandates to be constitutional. In this blog post, Dorit Reiss, PhD, discusses the Jacobson v. Massachusetts case from 1905 in which the Court upheld the authority of state governments to enforce laws that require their citizens to be immunized. Dr. Reiss is a Professor of Law at the University of California Hastings College of the Law in San Francisco. This is the first of two posts. Click here to read the second one.
We thank Professor Reiss for her time and expertise in writing this blog post.
In 1905, the Supreme Court ruled that a state can mandate vaccines, and accompany those vaccine mandates with a criminal fine for those not in compliance. More broadly, the court ruled that the state can impose “reasonable regulations” to protect the public health, even when such regulations interfere with individual rights. https://supreme.justia.com/cases/federal/us/197/11/
The case – Jacobson v. Massachusetts, 197 U.S. 11 (1905), has since been a staple of public health law. Much had been said about Jacobson (see, for example, here, here and here). This commentary is one of two I am writing about Jacobson. In this first part, I would like to address the claim that Jacobson does not support school mandates.
In Jacobson, the state of Massachusetts delegated to local authorities the power to mandate smallpox vaccines. Faced with a smallpox outbreak, the city of Cambridge passed an ordinance requiring all people not vaccinated within a certain time frame to be vaccinated (or re-vaccinated, if they were vaccinated too long ago), with a criminal fine of $5 for refusers. Minister Jacobson refused to vaccinate (apparently because of concerns about the vaccine’s safety), but also did not want to pay the fine. He challenged his conviction all the way to the Supreme Court. The Court upheld his conviction on the grounds that individual rights are not absolute, and states can interfere with rights to protect the public health, as long as it’s reasonable.
Jacobson and School Mandates
The argument is that Jacobson cannot be used to justify modern school mandates because in Jacobson the penalty was a small fine, and the consequence in school mandates is much more severe, limiting the access of children to school. This was one of the arguments raised in the cases against SB277, and one of the arguments raised in this article (clearly not the only one – for a thorough response to the article, see here).
That claim, however, misses an important point. Jacobson itself based its holding on existing school mandates, and justified upholding the regulation in question there – the City of Cambridge’s imposition of a $5 fine on those who would not take the smallpox vaccine – in part by pointing to the existence of school mandates for children at the time in question. The Court said:
“…the principle of vaccination as a means to prevent the spread of smallpox has been enforced in many States by statutes making the vaccination of children a condition of their right to enter or remain in public schools. Blue v. Beach, 155 Indiana 121; Morris v. City of Columbus, 102 Georgia 792; State v. Hay, 126 N.Car. 999; Abeel v. Clark, 84 California 226; Bissell v. Davidson, 65 Connecticut 18; Hazen v. Strong, 2 Vermont 427; Duffield v. Williamsport School District, 162 Pa.St. 476.”
(Jacobson, pp. 32-33).
I have left the many cases cited in Jacobson in the paragraph to make a second point: at the time, already, school mandates were litigated across many states and found constitutional – something courts do till today.
The Court goes on to discuss the 1904 New York case of Viemeister v. White, in which a challenge to New York’s law under the logic that it violates the state’s constitutional right to education was rejected. Among other things, the case also highlighted that claims of vaccines harms, when the majority of scientists disagree, would not be enough to lead the court to overrule the legislature.
In short, Jacobson’s ruling – upholding vaccines requirements backed by a fine – was built on a foundation of existing school immunization mandates, and the ruling also drew on their logic. It is fitting and appropriate to point to Jacobson as supporting school mandates.