Judicial Precedents and Vaccine Mandates

Published October 12, 2021


(This post originally appeared in Aaron Kheriaty’s Substack newsletter “Human Flourishing.” Read other issues and subscribe to the newsletter here.)

The 1905 Jacobson v. Massachusetts Supreme Court ruling is often cited by proponents as the basis for compulsory vaccine mandates and other emergency pandemic public health measures. But Jacobson was a narrow ruling at the time and the precedent it set should be construed as modest.

Justice Harlan’s decision in this case over one hundred years ago upheld the State’s, not Federal government’s, power to impose a nominal fine—$5, the equivalent of $155 today adjusted for inflation—on a person who refused to be vaccinated against smallpox during an outbreak in Boston. Keep in mind that the mortality rate for smallpox at that time was 31%, compared to a much smaller mortality rate for Covid:

Even though the smallpox threat was far deadlier, the State’s action was clearly less punitive and coercive than the current vaccine mandates. A $155 fine is clearly not the same as the threat of losing one’s job or being excluded from attending school. But this is not the first time the Jacobson precedent has been misapplied by the Court in acts of expansive overreach.

The most notorious example was the 1927 case of Buck v. Bell. Here, justice Oliver Wendall Holmes Jr., writing for the Court’s majority, upheld Virginia’s eugenic law permitting involuntary sterilization for people with “congenital feeblemindedness,” a rather loose diagnostic category even by the standards of the day. In practice, as is now well documented, this resulted in the eugenic sterilization of socially undesirable groups, with the poor and people of color disproportionately represented.

In the written ruling for Buck v. Bell, Justice Holmes recast Jacobson’s limited holding: “The principle that sustains compulsory vaccination” from Jacobson “is broad enough to cover cutting the Fallopian tubes.” Then came the infamous line, articulated by the Supreme Court’s majority: “Three generations of imbeciles are enough.” While the State laws that this ruling upheld have been reversed, this egregious Supreme Court decision has never been overturned by the Court.

Our jurisprudence has evolved and developed enormously since 1905, including tiered levels of scrutiny, and legal doctrines related to bodily autonomy and informed consent. Now is a good time for the Court to articulate the limits of the Jacobson precedent to avoid another disastrous decision like Buck v. Bell.

Aaron Kheriaty is a fellow at the Ethics and Public Policy Center, where he directs EPPC’s program in Bioethics and American Democracy.

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