In Jacobson, the Supreme Court ‘looked at it and said, well, there are times we have individual freedoms and we have to balance that against the public good.’
A Massachusetts city mandates a vaccine during an infectious disease outbreak. One resident objects because he had a negative reaction to a vaccine earlier in life. The authorities issue a fine for his noncompliance. He takes the case to the Supreme Court. The nation anxiously awaits the justices’ verdict.
Is this a prediction for COVID-19 dystopia now that vaccines are finally in play? Actually, it’s a real-life story that started in Cambridge at the turn of the past century. In 1903, the city ordered its residents to vaccinate during a smallpox outbreak. Local pastor Henning Jacobson refused because of an adverse reaction to a vaccine he had taken when younger in Sweden. Two years later, in the 1905 Supreme Court case Jacobson v. Massachusetts, the high court handed down a ruling on behalf of vaccination. Its impact lingers today, as the US deals with a pandemic, news about vaccines, and the possibility that individuals might be hesitant or unwilling to take them.
In Jacobson, the Supreme Court “looked at it and said, well, there are times we have individual freedoms and we have to balance that against the public good,” said Jonathan Berman, an assistant professor of basic sciences at the New York Institute of Technology Arkansas campus and the author of the new book Anti-vaxxers: How to Challenge a Misinformed Movement, published by MIT Press. “Sometimes the public good can override that.”
When it comes to vaccines, the battle between individual freedoms and the public good has been brewing for centuries, according to experts.
“I think pretty much as soon as we had vaccines—and before that, inoculations, older versions of vaccines—people were pushing against it,” said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. “The 1700s in England with smallpox inoculations. The 19th-century pushback. It’s always been there.” And, she said, “I think, in terms of modern case law, it really starts with Jacobson v. Massachusetts.”
At that time, Massachusetts allowed local municipalities to require vaccination. One city that did so was Cambridge, with a policy that Shachar described as “pretty strict.” Anyone who refused vaccination would face a $5 fine.
“In 1905, it was actually a lot of money,” Shachar explained.
Shachar called smallpox “a significant threat back then,” with significant outbreaks, a public-health menace lasting into the mid-20th century. Yet “the issue with the smallpox vaccine was that it used a live virus,” she said. “There were people who had a bad reaction to the smallpox vaccine,” including Jacobson, who “had been vaccinated ages ago and had a bad encounter. … He felt he did not want to risk it for himself and his children.”
Jacobson took the issue to the courts, unlike previous anti-vaxxers who opted for more physical protests. Benjamin Jesty, the 18th-century English farmer who created a smallpox vaccine through the ethically questionable method of infecting his wife and children with the less severe cowpox virus, was subjected to “clamorous reproaches,” according to an account cited by Berman in his book.
“Remarkably, this first recorded instance of vaccination also marked the first recorded instance of opposition to vaccination, although in this case the reasoning behind the opposition was likely sound,” Berman writes, noting that Jesty’s effort predated the better-known research of Edward Jenner, who is widely credited with discovering vaccination.
About a century later, in 1885, a riot erupted in Montreal in which anti-vaccine protesters clashed with bayonet-wielding police, although the number of hurt and injured was overshadowed by the 6,000 victims of that year’s smallpox epidemic, Berman said.
In contrast, the fight over vaccination in Cambridge took place not in the streets but in the halls of justice. The Supreme Court used an enduring legal principle in its ruling, Shachar said.
“The Supreme Court said yes, maybe individuals have interests and reasons why they don’t want to get vaccinated,” Shachar said, but “the states are charged with protecting public health. They have what was called ‘police power’ to do that. They’re able to override individual objections and insist people get vaccinated.”
Berman noted that the court did set limits on what states could do: “We can’t hold you down and force you to get vaccinated,” he said. “But it essentially allowed some of the incentives we have now for vaccines,” such as requiring proof of vaccination to attend a school, or to work at a certain type of job.
Public opinion did not swing unanimously in favor of vaccines after Jacobson. Just a few years later, a New England-based anti-compulsory vaccination league was founded. Similar groups emerged in England and Canada. Berman sees parallels between these organizations and contemporary anti-vaxxer Facebook groups and YouTube channels.
Berman finished Anti-vaxxers last October, before the coronavirus outbreak, although he returned to the manuscript to write a more updated introduction. He wrote the book in part out of mystifying conversations he had as the co-chair of the 2017 March for Science, wondering how fellow participants could identify as pro-science while opposing vaccines. The ensuing book is a chronicle of anti-vaccine movements over time as well as a study of ways to engage with contemporary anti-vaxxers.
“I think one of the points I’m trying to make is that we treat anti-vaccine rhetoric as something recent or new,” Berman said. “All the arguments are the same things people were saying in 1885 or 1905. … I think there’s actually kind of a continuity going back decades or centuries, the kind of arguments they make. It makes sense, because they’re sort of responding to the same fears people were [responding to] back then.”
Shachar sees some general similarities among anti-vaxxers’ motivations, but also some differences. In general, she said, “A lot of people feel very anxious, ‘why risk my health right now for something I may not get in the future?’ Especially in this day and age. I don’t know anybody who has gotten smallpox or polio. People tend to focus on potential side effects and dangers from vaccines as opposed to the diseases they prevent, which are really deadly.”
Yet, she said, “I think it’s important to understand that anti-vaxxers across the country do not have all the same objections to vaccines. There are different perspectives. There are people opposed to all vaccines, with no exception for COVID-19—no MMR [measles, mumps, rubella], flu, or Covid.”
She and Berman both note that one aspect of the COVID-19 vaccines from Pfizer and Moderna that may raise additional concerns among some anti-vaxxers is the relative speed with which they have been developed.
“The FDA, Moderna, and Pfizer have done a really good job making it clear that yes, they developed a vaccine incredibly fast but got through the proper channels, evaluations and data to show the vaccine is both safe and effective,” Shachar said.
Berman noted that there are “a lot of people who want to be vaccinated” against the coronavirus, as well as others who need proof of a vaccine to attend school or go to work.
Shachar predicts that if any court cases related to a COVID-19 vaccine reach the Supreme Court, the justices will “probably rely on Jacobson and probably come out in a similar fashion. They’ll probably use a more updated constitutional law analysis.”
As she noted, “The world in 1905 was so different than now. Constitutional law was really, really different. … I don’t think Jacobson was bad law. States do have a really broad mandate to protect public health.”