Jacobson v. Massachusetts is a landmark Supreme Court case from 1905. Henning Jacobson sued the State of Massachusetts because of a vaccine mandate passed by the legislature. Jacobson did not want to be vaccinated and was fined by Massachusetts. Jacobson brought many of the same complaints people bring today for not getting a vaccine. The Court ruled that Jacobson was required to follow Massachusetts law and pay the fine.

There is an idea, that along with a state’s police powers, influenced the Court’s ruling. The Supreme Court said, “There are manifold restraints to which every person is necessarily subject for the common good,” and, “Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will.” I do not contend with either of those statements. However, the court misapplied them and in conjunction with precedence of law, concluded that Massachusetts could mandate a vaccine through police powers of the state.

Looking back, the United States policing disease is not a foreign idea. In 1799, President John Adams signed into law, “An Act Respecting Quarantines and Health Laws,” which allowed states “regarding vessels arriving in…any port…[to] aid in the execution of quarantines and health laws.” It basically allowed states to enforce quarantines on ships to make sure that people and products were not bringing in diseases, namely yellow fever, but others as well. Statutory and case law built inwards from there following that: the federal government can maintain its borders, states can maintain its borders and localities can maintain its borders and enforce laws to protect themselves from disease. Bear in mind that Jacobson did not establish police power of the state, it merely justified the states actions with them.

Police powers seem reasonable standards. They are used not only to protect sovereigns from disease, but also terrorists, criminals, illegal substances and many other things. A nation, state or locality need not take on unnecessary risk simply because it is at its border. It is necessary for a state to exercise its police powers in order to maintain its sovereignty. The idea of a government having and using police power is not at issue.

“It is necessary for a state to exercise its police powers in order to maintain its sovereignty.”

Where the Court goes awry in the Jacobson case is how it determines what is licentious. While I agree that freedom does not equate licentiousness, to say that not getting a vaccine is licentious is absurd. To equate refusing vaccination to doing heroin, driving under the influence, or public nudity is obnoxious. Why? Everyone who wanted protection from smallpox could get vaccinated, apparently because it was being mandated!

In addition, the Court conflated the primary function of vaccines with a secondary consequence of limiting the spread of the virus by vaccinating large swaths of people. Smallpox vaccines protected a vaccinated person from smallpox. Slowing the spread or even eradication of disease is a by-product of vaccination. This is not a unique measure of intervention by police powers. When illegal drugs are seized at the border, the value of the seizure is not based on how many fewer highs are able to be had. Such a standard is immeasurable and of no value.

In any vaccine, it is not probable to measure how effective the function of slowing the spread of infection is because there are too many variables. While one might be able to estimate the slowing spread of infection in terms of a range, the variables are also subject to immeasurable things such as: a difference in environment, a person’s ability to fight off infection, a potential recipients ability to fight off infection, would render them inapplicable to any one person’s situation. In short, there is not an objective method to determine harms or benefits of being vaccinated or not by measuring how much a virus is spread.

“There is not an objective method to determine harms or benefits of being vaccinated or not by measuring how much a virus is spread.”

It may seem that the fact that Smallpox has been declared eradicated would fly in the face of this point. It does not. Smallpox was not eradicated in the United States until the 1950s, almost 50 years after the Jacobson case and over 100 years after the vaccine for smallpox was developed. Polio took approximately 40 years to eradicate in the United States after the polio vaccine was discovered. It takes time to eradicate a disease through vaccination. Mandating a vaccine does not achieve eradication more quickly.

Governments use police powers to effect a primary purpose. Success is not measured by secondary consequences. They are measured by the effect they have toward what it is supposed to address. A vaccine’s primary purpose is to mitigate the effects of disease in a person. That is the clear standard of effectiveness. Therefore, a person ought to have the right to choose or not to choose that mitigation freely and without compulsion. While there are other arguments in regard to Jacobson, this objection warrants a second look at how compulsory vaccination is undertaken in the United States.