In this blog post, Dorit Reiss, PhD, continues her discussion of 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. In this second part, Dr. Reiss discusses jurisprudence (decisions by the Court) from the time, noting the similarity and differences between some of the arguments on the different cases.
Dr. Reiss is a Professor of Law at the University of California Hastings College of the Law in San Francisco. This is the second of two posts. Click here to read the first.
We thank Professor Reiss for her time and expertise in writing this blog post.
Two history-oriented challenges may be raised against Jacobson from very different directions. One would be that Jacobson predated the period in which individual rights carried weight. The other would be that Jacobson should be rejected because one of its progenies is the (correctly) infamous case of Buck v. Bell. Neither challenge has merit.
Lochner and the Importance of Liberty
In 1905, when Jacobson was decided, the Supreme Court decided Lochner v. New York, under which the court struck down a work-hour limit for bakers on the ground that adult men in sound mind are free to contract as they will, and the state has no place to step in and protect them from their own contract. Lochner and its progeny emphasized protecting individual liberty (potentially too much, making it hard to protect workers from unhealthy work conditions). Liberty was valued during the Lochner era.
And yet, during the same year, the court also passed Jacobson, reminding us that individual liberties can be limited to protect public health. This should be a lesson today: commitment to individual liberties can co-exist with a commitment to public health. No right is absolute, and as important as liberty is, it does not mean the state cannot act to protect the public welfare, even if it has to put some limits on individual liberty to do so.
We can also take it further and consider safety as a precondition to liberty. In a society where disease stalks the street, people are only theoretically free to go out into those streets. In the interest of public health, should they be allowed to do so?
Buck and Eugenics:
In one of the dark moments in our judicial history, in 1927 the Supreme Court decided Buck v. Bell, ruling that a statute enabling compulsory sterilization of those deemed “unfit,” including those with intellectual disabilities, was constitutional.(Buck v. Bell 274 U.S. 200 (1927))
Ironically, there are good grounds to believe that the victim of the decision, Carrie Buck, or her daughter, were not intellectually disabled, but victims of class-based mistreatment.
Justice Holmes, in a deeply disturbing decision, said:
“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”
He then went on to say:
“The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11. Three generations of imbeciles are enough.”
In at least one of the cases attacking California’s 2015 immunization law, plaintiffs suggested that the reliance on Jacobson in Buck v. Bell taints Jacobson, arguing that the case should not be used.
That is incorrect. Jacobson stands for the premise that the state can limit individual rights to support a public health necessity through reasonable regulation. The reference to it in Buck is a misuse. The law in question in Buck was not necessary for public health the way school mandates that prevent diseases are; any link between sterilization and public health is speculative, weak, and unsupported with data. And forcing such a procedure on individuals is not equivalent to a vaccine mandate, which, after all, offers benefits to the individual vaccinated – protection from disease – as well as to society. Jacobson was well grounded in principles of good regulation of public health. Buck was not. It is appropriate to repudiate Buck and what it stands for while upholding the validity of Jacobson.