During a smallpox epidemic more than 100 years ago, a Cambridge resident took issue with the local board of health’s requirement that all adults be vaccinated against the disease.
Henning Jacobson claimed he had a serious reaction to a vaccination as a child living in Sweden and did not want to be vaccinated. He faced the criminal penalty of a $5 fine for those who refused the vaccine and took his case to the US Supreme Court, arguing the vaccine requirement infringed on his rights under the due process clause of the 14th Amendment of the Constitution that says states cannot “deprive any person of life, liberty or property without due process of law.”
In 1905, the Supreme Court ruled 7-2 in Jacobson v. Massachusetts that public health measures, like vaccination, imposed by states are constitutional because, in essence, living in society comes with restrictions, including those pertaining to public health.
At the heart of the case is the intersection between public health and a person’s individual rights. The court ruled that while the state doesn’t have absolute power to limit individual rights, it can impose reasonable limits when it comes to public health.
Now in the wake of the sweeping federal vaccine mandates President Biden announced on Thursday and claims by some Republican lawmakers that the rules are unconstitutional, experts say legal challenges to the measure are likely to be unsuccessful because of the strong precedent established by the Jacobson case.
“I think the Biden administration can clearly point to the fact that there is an ability of governmental entities to mandate vaccination,” Brian Dean Abramson, an adjunct professor of vaccination law at Florida International University, said of the Jacobson case.
Biden on Thursday outlined new federal vaccination mandates that apply to as many as 100 million Americans as COVID-19 cases continue to strain health care systems across the country due to the highly transmissible Delta variant. The expansive new rules mandate that employers with more than 100 workers require them to be vaccinated against the virus or face weekly tests, and the millions of workers at health facilities that receive federal Medicare or Medicaid funding also have to be vaccinated.
Abramson added that the Biden administration’s mandate is narrower than the requirement employed in the Jacobson case, because the Biden rules contain a testing mechanism and certain exemptions for vaccination. Since Jacobson was decided, a modern framework has developed for vaccine mandates that allow for people not to be vaccinated for specific reasons.
“I think that if Jacobson were being decided today, there would be some subtle differences in the outcome, recognizing the tradition that has developed for medical exemptions to vaccination to be provided,” Abramson said.
In the case at issue in Jacobson, every adult resident of the jurisdiction was required to be vaccinated or face a criminal penalty, while with the Biden vaccine employer mandate, it will be a violation of Occupational Safety and Health Administration standards, Abramson said.
While the Jacobson case upheld the police power of states to protect public health by mandating vaccination, it did not address whether the federal government would have the same power, opening up the possibility for legal challenges on that basis. However, legal experts noted that the Biden administration’s requirement is a workplace health and safety regulation, for which there is long-established federal precedent. An entire federal agency exists to impose such regulations, though the way OSHA implements these rules can spark their own legal challenges, one expert said.
“There’s a million regulations under OSHA that today, hardly anyone thinks are unconstitutional,” said Christopher Robertson, a health law professor at the Boston University School of Law.
But the Jacobson case does close the door on a potential legal challenge that fundamental rights protect people from being vaccinated, Robertson said.
“The most direct way that Jacobson is relevant here is that it very directly undermines that argument that there’s a protected liberty interest in not being vaccinated,” Robertson said. “If that was true, Jacobson would have won and Massachusetts would have lost.”
The Jacobson case was decided by a Supreme Court that is significantly less partisan than it is today, Robertson noted, and the politicization of the court leaves open the possibility for Jacobson to be overturned.
“This is an old Supreme Court decision, and the current Supreme Court has become much more politicized by the Trump appointees,” Robertson said. “We can’t count on the fact that they will uphold Jacobson.”
The new measures were met with fierce opposition from Republican lawmakers who called the plan unconstitutional, argued Biden does not have the authority to issue such mandates, and vowed to mount legal challenges.
Governor Brian Kemp, a Georgia Republican, said on Twitter that he would “pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach by the Biden administration.” Ronna McDaniel, the chairwoman of the Republican National Committee, described the mandate as “unconstitutional,” and said the RNC “will sue the administration to protect Americans and their freedoms.” South Carolina Governor Henry McMaster, a Republican, said on Twitter that Biden and “radical Democrats” have “thumbed their noses at the Constitution.”
“Rest assured, we will fight them to the gates of hell to protect the liberty and livelihood of every South Carolinian,” McMaster said.
US Representative Doug Lamborn, a Colorado Republican, said in a statement that while he is vaccinated and thinks the vaccines are “effective at combatting the COVID-19 pandemic,” he thinks “people’s personal choices must be respected.”
Lamborn said in the statement that Biden is “abusing the power of the executive branch,” and said in a separate tweet that Biden “does not have the authority for this.”
The claims by Republican lawmakers and officials that choosing whether or not to get vaccinated is a reflection of American ideals of freedoms and individual liberties are parallel to the claim Jacobson made when he fought the vaccination requirement in Massachusetts more than 100 years ago.
“The claims that Jacobson made very much echo the claims we’re hearing from the anti-vaccine people today,” said Dorit Reiss, a law professor at the University of California Hastings College of the Law who writes about vaccine law and policy. “The claims we’re hearing now are the same claims of, ‘my individual rights should trump the public health, my right to refuse this vaccine is more important than the imposition on my liberty when I’m required to test every week or lose my job over it.‘ That’s exactly the claim that Jacobson was making. He was claiming his individual right is more important than the state’s power to regulate.”
Biden on Friday had a pointed message for Republican officials threatening to sue over the mandates: “Have at it.”