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Author: TriSec    Date: 04/07/2018 11:59:32

Good Morning.

Last Tuesday, I spent most of my day hanging around the Middlesex Superior Court in Woburn, MA. I was called for jury duty, and like a good citizen I made my way to the courthouse to do my civic duty.

In the pool waiting room, there was an extensive display about past cases and legal precedent, and I was able to kill about an hour of the long day looking over some local historical cases that had repercussions for the rest of the United States.

One in particular leapt out at me - the case of Jacobsen v. Massachusetts. More than a century ago, the Boston area experienced its last major outbreak of the dreaded smallpox.

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.

The city took some unprecedented steps to control the epidemic. Those affected were first treated exclusively at the hospital on Southampton Street (now Boston Medical Center), but as the crisis grew a quarantine was established on Gallop's Island out in the harbor. (now abandoned). The city also instituted a massive vaccination project.

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.

Being Boston, though...naturally somebody had to challenge the authority of the state to require compulsory vaccination. The case wound it's way through the local courts, and was ruled in favor of the state by the Middlesex County Judge William Cushing Wait. This is the case referenced in the historical display that I read.

But it didn't end there - the case eventually went to appeals and eventually reached the Supreme Court in 1905.

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.

The decision was swift, and the Court ruled in favor of the public good in this case, over the rights of the individual.

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.

The case further set legal precedent in the United States, and since then, the case has not been revisited, so the original interpretation from 1905 is still the Law of the Land.

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.

So what does this mean today?

Our friend Mondo loves to tangle with the anti-vaxxer crowd on Facebook. I too have read some of their stuff and replied with incredulity and contempt. For my own experiences...when Javi came home from the Philippines, it was as if the slate was wiped clean - we went through the complete vaccination schedule as if he was a newborn. Prior to that, Mrs. TriSec and I went through an extensive vaccination routine for travel overseas, even if we were there for a mere five days. I've now had the shingles vaccine, and dutifully update my tetanus when told.

Is it the ignorance of the masses that is being fostered by the Republicans that is leading to this kind of backlash? The legal precedent remains, so it is well within the state to forcibly impose vaccination on those that are refusing. But is this the sort of thing we want the state doing? Even though smallpox has been eradicated - there are many diseases that are still out there where the only cure is actually prevention. I wonder what kind of epidemic it would take to make this kind of silliness a thing of the past for good?


3 comments (Latest Comment: 04/07/2018 18:53:45 by Scoopster)
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