Rich Elfers, “In Focus”

Rich Elfers, “In Focus”

Are mandated vaccinations constitutional?

Personal opinion and emotion do not have the force of law.

Last week, I argued that religious vaccination exemptions have no biblical basis. This week I will examine whether Governor Inslee and President Biden are violating the Constitution by mandating COVID-19 vaccinations.

The answer to this question goes back to the 1905 U.S. Supreme Court and its decision in Jacobson vs. Massachusetts. The issue was over whether the state of Massachusetts had the right to require all citizens to get a smallpox vaccination or suffer a fine of $5, equal to about $100 today.

In a February 2001 New England Journal of Medicine article entitled “The Last Smallpox Epidemic in Boston and the Vaccination Controversy,” written by three physicians, is this quote:

“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.”

The state had mandated smallpox vaccinations for children to attend public schools in 1855. That mandate appeared to be effective in providing protection against the epidemic. Like COVID-19 today, smallpox infection was a reoccurring threat to society.

Now that you have the context, let’s go back to the Jacobson vs. Massachusetts case. Henning Jacobson was a pastor in Cambridge, Massachusetts who contended that “he had a right under the Free Exercise Clause of the First Amendment to avoid the mandatory vaccination law.” He also argued that the law was “arbitrary and capricious”. [David L. Hudson, Jr. “Jacobson v. Massachusetts (1905). “The First Amendment Encyclopedia”].

Jacobson argued that he and his son had bad reactions to previous vaccinations. Jacobson argued that the law opposed “the inherent right of every freeman to care for his own body and health in such a way as to him seems best.”

In a National Institute of Health article entitled: “Jacobson v. Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law”, infectious disease was stated to be the major cause of death at the time, and the question of public health was left primarily to the states and communities. Healthcare as we know it today was in its infancy. There was no FDA or CDC. It was in an era where states had more power over public health than the federal government.

In the 7-2 decision against Jacobson, Justice John Marshall Harlan wrote for the majority: “…The liberty secured by the Constitution of the United States to every person with its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints in which every person is necessarily subject for the common good”. The emergency situation of the epidemic justified the government’s mandate, according to the court.

There was another Supreme Court case in 1922 that supported the Jacobson decision; Zucht vs. King et al. In this case the City of San Antonio, Texas passed an ordinance stating that, “No child or other person shall attend a public school or other place of education without having first presented a certificate of vaccination” (Legal Information Institute). The Supreme Court upheld San Antonio’s ordinance referring to Jacobson vs. Massachusetts for precedence, ruling that the Court “had settled that it is within the of a state to provide for compulsory vaccination [emphasis mine].”

How do these Supreme Court decisions apply to Governor Inslee’s mandatory vaccination policy? Based upon the emergency powers given to him by the legislature, his actions are constitutional.

What about President Biden’s executive order requiring vaccinations federally for government employees, the military, and businesses employing 100 or more people? That issue is not as clear since Jacobson and Zucht confirmed power of state and local governments, not the federal government. The Court could rule two different ways according to a September 10, 2021 Business Insider article by Madison Hall entitled, “How a Supreme Court Decision from 1905 Set the Stage for Vaccine Mandates”: 1) The Court could rule that mandatory vaccinations are within the power of all levels of government, or 2) The Court could rule that the power to require vaccinations only applies at the state and local level.

At least three Republican governors plan to sue the president when the mandates go into effect on Nov. 1. Biden’s response: “Have at it.”

We live under the rule of law. What matters is what the Supreme Court has ruled and will rule. Personal opinion and emotion do not have the force of law.


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