In May 1901, an outbreak of smallpox, initially unrecognized, was followed by a series of outbreaks in various neighborhoods of Boston.1 From 1901 to 1903, there were 1596 cases of smallpox, with 270 deaths,in a city with a population of approximately 560,900. The attack rate was 3 cases per 1000 persons, with a case fatality rate of 17 percent.
Of 243 consecutive patients with smallpox who were admitted to the smallpox hospital on Southampton Street, 18 (7 percent) were black, although blacks made up only 2 percent of Boston's population in 1900.5 Of the 238 patients whose birthplace was identified, 49 percent were immigrants, whereas only 35 percent of the city's residents were foreign-born; Canadian-born residents, accounting for 21 percent of the patients, made up 9 percent of Boston's population at the time. During the epidemic, 60 percent of cases occurred in males.
Among 754 patients with smallpox who had evidence of vaccination, there were 82 deaths (case fatality rate, 11 percent), whereas among 842 unvaccinated patients, there were 188 deaths (case fatality rate, 22 percent). The law requiring that children be vaccinated in order to attend public school, which had been enacted by the state in 1855, appeared to be effective in providing protection against the epidemic. A review of 700 cases showed that 130 (19 percent) occurred in children 1 to 5 years old, but only 21 (3 percent) occurred in children 6 to 10 years old; the number of children in each age group was similar.
By December 1901, more than 400,000 Bostonians had been vaccinated. Nonetheless, continued reports of smallpox cases led the Board of Health to order that “all the inhabitants of this city who have not been successfully vaccinated since January 1, 1897, be vaccinated or revaccinated forthwith.†A program of house-to-house vaccination was initiated in January, with physicians sent to the most affected areas of the city: East Boston, South Boston, Charlestown, the North End, the West End, and parts of Roxbury and Dorchester. The instructions given to the physicians were as follows: “Vaccinate all who are willing and are not too ill. No force to be used. Make skin clean before vaccinating. Make two scarifications. Make no scarification more than one-fourth inch in diameter. Do not make the blood flow. Rub the lymph well into the wound and secure its drying. Caution [the patient] carefully against breaking the vesicle or doing other injury.†Persons who refused vaccination were subject to a $5 fine or a 15-day jail sentence.
Pastor Henning Jacobson already lived through an era of mandatory vaccinations back in his original home in Sweden. The national law made vaccination mandatory and when he was a child, he was vaccinated for smallpox. Although the efforts to eradicate smallpox were successful in Sweden, he did not agree with the methods. He claimed it caused a "great and extreme suffering" that he would have to endure for the rest of his life. Like his experience, one of his sons was vaccinated as a child as well and "suffered adverse effects" from it. Jacobson and his wife were thus resistant when it came to mandatory vaccinations in Massachusetts.
A leader in his community, Jacobson was one of the few who resisted mandatory vaccinations for smallpox in the early 20th century in Cambridge, Massachusetts. While many were pleased to hear about a vaccine for smallpox, others were alarmed by the idea of being stabbed by a needle and having cowpox injected inside of them. Jacobson was distraught by this and took his case to the Supreme Court in 1905 against mandatory vaccinations. He refused the vaccine stating it was an "invasion of his liberty." Those who refuse vaccination would be prosecuted. The fine for refusal of the vaccination was a $5 monetary fine, equivalent to about $130 today. Pastor Jacobson refused vaccination by saying that "he and his son had had bad reactions to earlier vaccinations." Because of his refusal of the vaccination, Jacobson was fined $5 and appealed to the Supreme Court.
The Fourteenth Amendment was brought up during the case on individual liberty. The case showed that the State was "restricting one aspect of liberty" by forcing people to get vaccinated. In its ruling in support of the Massachusetts law, the Supreme Court identified two primary rationales. One was that "the state may be justified in restricting individual liberty... under the pressure of great dangers" to the safety of the " general public." By identifying the smallpox epidemic as a danger to the general public, individual rights and liberty were subordinate to the state's obligation to eradicate the disease. Jacobson had also argued that the law requiring vaccination was "arbitrary or oppressive." The Court rejected the argument by indicating that mandatory immunization in the face of epidemic was neither but insisted that vaccination was a measure for "getting to their goal of eradicating smallpox." Massachusetts was one of only 11 states that had compulsory vaccination laws.
Justice John Marshall Harlan delivered the decision for a 7-2 majority. He rejected Jacobson's claim that the Fourteenth Amendment gave him the right to refuse vaccination. Harlan deemed that the Massachusetts state punishment of a fine or imprisonment on those who refused vaccines was acceptable, but those individuals could not be forcibly vaccinated. At the end of his decision, he acknowledged that for certain individuals, the requirement of vaccination would be cruel and inhumane and so an overreach of government power. That created a medical exemption for adults under the Massachusetts health law, but Harlan denied that Henning Jacobson deserved exemption.
Harlan ruled that personal liberties could be suspended given external circumstances. During an outbreak, for example, the state can encroach on those liberties when "the safety of the general public may demand." He compared the smallpox outbreak to the American Civil War (in which three out of nine Justices at the term served) by saying that a community has the right to protect itself from both disease and military invasion.
More broadly, Harlan ruled that Massachusetts was justified in mandating vaccination: "there are manifold restraints to which each person is necessarily subject for the common good." While Harlan supported such restraints, he also warned that if the state targeted specific individuals or populations to unnecessary restrictions, the court might have to step in to protect them.
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