Mandatory Vaccination
On February 18, 2021, Isaac Legaretta was notified he must be vaccinated within five days. Legaretta is an employee in the Dona Ana County, New Mexico County Detention Center. In January county first responders and detention center staff had been notified that COVID-19 vaccinations would be required as a condition of employment.
Legaretta filed a lawsuit against the county manager for violating his right to “bodily integrity,” asserting that the vaccine is experimental. Although exemptions for employee vaccinations are allowed for certain health and religious reasons, Legaretta hasn’t claimed to have any qualifying condition. The Hill newspaper called this the first case against mandatory COVID-19 vaccination.
There is precedent for government mandated vaccinations. The U.S. Supreme Court decided such a case during the smallpox epidemic in 1905. The city of Cambridge, Massachusetts ordered the vaccination of all residents. Health officials, accompanied by police officers, went door to door vaccinating as many as 100 people a day. People who refused to be vaccinated were fined $5, the equivalent of $150 today.
A Swedish-born pastor named Henning Jacobson refused to have himself and his son vaccinated. A criminal complaint was issued against Jacobson and other anti-vaccine activists to collect the $5 fine. Jacobson fought the fine in a trial, in the Massachusetts Supreme Court, and in the U.S. Supreme Court, arguing that compelling him to be vaccinated was a violation of liberty. Jacobson was supported by the Massachusetts Anti-Compulsory Vaccination Association.
In the case known as Jacobson v Massachusetts, Justice John Marshall Harlan wrote the majority opinion, noting the liberty secured by the fourteenth Amendment, but added, “in every well-ordered society . . . the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
The U.S. Supreme Court heard another case concerning mandatory vaccination in 1922. It involved the San Antonio School District requirement that a student must have a certificate of vaccination for smallpox in order to enroll. In a unanimous decision, Justice Louis Brandeis cited Jacobson v Massachusetts as having settled that compulsory vaccination is within the power of the state. A Harvard Law Review article concluded that the case, Zucht v King, “marked the beginning of the end for the anti-vaccine movement of the day…. by the early 1930s, concerns over the safety of vaccines had waned, as the public widely accepted physicians’ recommendations about the efficacy of vaccines.”
In 2020 a case was brought before the U.S. Supreme Court in which the logic of Jacobson v Massachusetts was applied to justify action by the State of New York. The state barred all religious gatherings during the pandemic, although secular businesses were allowed to operate with limited capacity. In Roman Catholic Diocese of Brooklyn, New York v Andrew M. Cuomo, the Court ruled that barring religious gatherings but allowing secular businesses to operate violated the churches’ constitutional rights. The 5-4 opinion written by Justice Neil Gorsuch stated, the Jacobson “decision involved an entirely different mode of analysis, an entirely different right, and an entirely different kind of restriction.”
As COVID-19 variants continue to mutate into more transmissible and potentially more lethal versions, a race is on ahead of additional surges. If the prospect of achieving herd immunity appears remote, a city like Cambridge, or a county or a state could feasibly see mandatory vaccination as a necessary course.