By Nicole Montesano • Staff Writer • 

Mandate upheld by high court a century ago

In 1901, smallpox broke out in Massachusetts and sparked a battle over vaccine mandates that still resonates today.

The Cambridge Board of Health ordered mandatory smallpox vaccinations. Those who refused to comply were fined $5. A pastor named Henning Jacobson sued the city, and in 1905, took his case before the United States Supreme Court. Like people today objecting to mandates for the COVID-19 vaccine, Jacobson argued the smallpox vaccine mandate was an assault on his liberty.

He lost.

“The liberty secured by the Constitution of the United States to every person within its jurisdiction does not impart an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint,” the court’s ruling said. “There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.”

This week, a federal judge in Oregon quoted those words in denying a request to stop enforcement of the state’s vaccine mandate for state employees, healthcare workers and school staff.

Jacobson had been vaccinated against smallpox as a small child in his native Sweden, and said the vaccine caused him “great and extreme suffering,” according to a newspaper account at the time.

Smallpox vaccination at that time involved scratching the recipient’s arm with a lancet and then rubbing the scratch with an infected object such as a quill, usually using the related but less lethal cowpox virus. Side effects ranged from relatively mild to life-threatening.

Jacobson said he had suffered from a painfully hot rash for years afterward, and that when his 18-year-old son got vaccinated in Massachusetts, to avoid losing his job under the mandate, he also suffered from long-lasting and painful side effects.

Many of Jacobson’s arguments sound familiar to modern ears.

“The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person,” the judges wrote in their 1905 ruling, rejecting Jacobson’s arguments.

However, they wrote: “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”

U.S. District Judge Michael H. Simon reached the same conclusion this week.

A group of 42 healthcare workers, school staff, a school volunteer and a state employee have filed a lawsuit against Governor Kate Brown and Patrick Brown, director of the Oregon Health Authority, over the state’s vaccine mandate. They filed their lawsuit on Oct. 12.

On Oct. 15, they made a last-minute request to Simon to stop enforcement of the mandate, set to take place Oct. 18, for many employees — while the court case proceeds.

Simon denied the request, writing in a 55-page opinion that they failed to prove their arguments and were unlikely to prevail.

The plaintiffs make many of the same arguments made by Yamhill County Commissioners Mary Starrett and Lindsay Berschauer: That the vaccines are experimental; that compelling them is akin to the practices of Nazi Germany against Holocaust victims, and that the mandate is causing irrevocable harm.
Simon rejected those claims.

“As Jacobson reveals, the right to refuse vaccination is not deeply rooted in this nation’s history. … Public health laws that protect the health and well-being of the general population further the concept of ordered liberty,” Simon wrote.

“The Court accepts, however, that certain Plaintiffs face a difficult decision in having to take a vaccine they do not wish to take or find a new job, possibly in another state. Nonetheless, in the middle of a global pandemic while infections and hospitalizations continue at high rates, Plaintiffs are not likely to succeed in showing that their individual interests in remaining unvaccinated outweigh the State’s interest in public health and welfare.”

The vaccines, he noted, have been authorized by the U.S. Food & Drug Administration after extensive clinical trials and in the case of the Pfizer-Biotech vaccine Comirnaty, received full approval.

The plaintiffs argued that Comirnaty is different from the Pfizer-Biotech vaccine, an argument the judge also rejected, pointing out that the FDA’s approval of the brand name version of the drug “was for the physically, chemically, and biologically identical vaccine.”

“Plaintiffs offer no international law authorities supporting the conclusion that physically, chemically, and biologically identical vaccines that are merely legally distinct are nevertheless so different that a vaccine mandate involving one versus the other, when one has been FDA-approved as safe and effective, is a forced medical ‘experiment,’” he wrote.

Further, Simon wrote, “Plaintiffs fail to demonstrate that their preference not to receive an FDA-authorized vaccine is a fundamental right under the Due Process Clause. The Supreme Court has not recognized any fundamental right to refuse vaccination.”

Simon also rejected the Nuremberg Court arguments.

“Plaintiffs here do not contend that they are being forced to be part of the clinical trials for the Pfizer-BioNTech Vaccine or that they are being forcibly injected while being physically held against their will,” he wrote.

“Instead, they argue a very different context—a challenge to a vaccine mandate issued in a public health emergency that orders a particular subset of Oregon workers to take an FDA-authorized vaccine at the risk of losing their employment. This simply is nowhere near the same as Nazi doctors performing experiments on victims held against their will in concentration camps, as was the subject of a portion of the Nuremberg Trials.”

A trial date has not yet been scheduled.


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