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There is a lot of talk these days about the beliefs of judges who will be appointed by a new President to the U.S. Supreme Court. It is an important conversation because what those judges believe will be reflected in the legal decisions they make, decisions that could have consequences for centuries.
In states where vaccine exemptions are under attack, advocates for “no exceptions” mandatory vaccination laws argue that you and your children can be forced to get vaccinated because eight men sitting on the U.S. Supreme Court said so in 1905. Public health officials and industry and medical trade lobbyists often invoke the Victorian era ruling in Jacobson v. Massachusetts1 to deny Americans the freedom to make voluntary decisions about vaccination.
Attorney Lawrence Gostin has said that Jacobson v. Massachusetts “is often regarded as the most important judicial decision in public health.”2 He got that right. He knew he could use it after 9-11 to re-write state public health laws giving government more police power to trample on freedom whenever health officials declare a “public health emergency.”3 4 5
The tragic legacy of Jacobson v. Massachusetts not only haunts public health law making in the U.S., it has come to define it. If you wonder why this summer CDC officials boldly announced they want more police power to yank you off a plane and put you into involuntary quarantine because they believe you might get measles, you can thank the Supreme Court.6 If your healthy unvaccinated child has been kicked out of school while sick vaccinated children are allowed to stay7 - or if you have been fired from your job because you said “no” to getting a flu shot8 - look no further than Jacobson v. Massachusetts.
In a nutshell, the judges sitting on the Supreme Court more than a century ago used bad logic, relied on old science and made the ridiculous assumption that doctors are infallible to give government the green light to force healthy Americans to risk their lives with a pharmaceutical product based on “common belief” rather than fact. Piously waving the “greater good” flag, they threw individuals under the bus by throwing civil liberties out the door.
Here is how the Supreme Court created the legal club being used today to take away your right to exercise freedom of thought, conscience and religious belief when making vaccine decisions for yourself or your children.
Pastor Jacobson and His Son Had Suffered Severe Reactions to Smallpox Vaccine
In 1904, a Lutheran minister, Swedish immigrant Henning Jacobson, objected to a Cambridge, Massachusetts Board of Health law requiring all adults to get a second smallpox vaccination or pay a $5 dollar fine. Pastor Jacobson and his son had suffered severe reactions to previous smallpox vaccinations and he logically argued that genetic predisposition placed him at higher risk for dying or being injured if he was revaccinated.
He correctly concluded that smallpox vaccine ingredients were toxic and often caused injury and even death and that medical doctors were unable to predict who would be harmed.9 10 11 12 13 14 15 He made the legal and ethical argument that being required to get revaccinated was an assault on his person and a violation of his 14th Amendment right to liberty and equal protection under the law.16
Jacobson v. Massachusetts Affirms Infallibility of Doctors
But the attorneys representing medical doctors persuaded judges in the state court that Jacobson did not know what he was talking about and ruled against him. Instead of simply paying a $5 fine, Jacobson appealed to the U.S. Supreme Court. It was a mistake that led to one of the most unethical and dangerous legal decisions in American jurisprudence.
In a split decision with one dissenting vote, the Court majority, including Oliver Wendell Holmes, said that citizens do not have the right under the U.S. Constitution to be free at all times because there are “manifold restraints to which every person is necessarily subjected for the common good.” They said that state legislatures have the constitutional authority to enact compulsory vaccination laws and exercise police power to restrict or eliminate liberty during smallpox epidemics to “secure the general comfort, health and prosperity of the state.”
The judges dismissed Jacobson’s concern about being genetically susceptible to vaccine harm. Instead they chose to incorrectly affirm the infallibility of doctors by making this ignorant statement: “The matured opinions of medical men everywhere, and the experience of mankind, as all must know, negative the suggestion that it is not possible in any case to determine whether vaccination is safe.”
Compulsory Vaccination Compared to Military Draft
Comparing compulsory smallpox vaccination of adults with the military draft in times of war, the judges declared that a citizen “may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense.”
Of course, today, most of the citizen soldiers being forced to “risk the chance of being shot down” in America are babies in newborn nurseries17 18 and little children who want to go to school.19 20
Vaccine Law Can Be Based on “Common Belief,” Not Fact
Although the 1905 Supreme Court judges dismissed concerns about the safety of smallpox vaccine as completely unfounded, they were clearly uncomfortable about Jacobson’s contention that his life was on the line. Not once, but repeatedly, they returned to the knotty problem of individual risk only to ridicule Jacobson and point out that his uneducated opinion was no match for the “common knowledge” expert opinion of medical doctors. In fact, the judges went so far as to say that - even if Jacobson could prove medical experts were wrong about the safety of smallpox vaccination - states still have the constitutional power to enact laws based on majority opinion and “common belief” and not on truth or proven facts. They said:
“A common belief, like common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legislature and the courts. The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive...for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not.”
I wonder how many legislators know that the 1905 Supreme Court ruling being used to eliminate exemptions from vaccine laws was based on the idea that “common belief” – not hard evidence - can rule the day?
The 1905 Supreme Court judges tried to defend their decision by explaining that if individuals like Jacobson were able to get exempted from vaccination, it would mean that, “Compulsory vaccination could not, in any conceivable case, be legally enforced in a community, even at the command of the legislature, however widespread the epidemic of smallpox; and however deep and universal was the belief of the community and its medical advisors that a system of general vaccination was vital to the safety of all.”
And there it is again. The Supreme Court told state governments they can make vaccine laws based on “deep and universal” beliefs about vaccination, especially beliefs held by medical doctors, but can ignore the deeply held beliefs of individuals with good reason to conclude they will be harmed by vaccination.
The Utilitarian Legacy of Jacobson v. Massachusetts
What were the beliefs of doctors in the early 20th century? Well, many influential doctors in academia and those leading social reform movements believed in a political philosophy called utilitarianism, which has its roots in hedonism.21 Utilitarianism is a theory of morality based on a mathematical equation: the greatest happiness for the greatest number of people.22 23 Legislators like it because law making becomes a simple matter of adding and subtracting numbers, like generals do on a battlefield when counting how many casualties it took to win a battle.
What the U.S. Supreme Court did in Jacobson v. Massachusetts was to codify the utilitarian rationale into U.S. law so government officials could use it to make public health policy. But the morally bankrupt core of utilitarianism was revealed in 1927, when Chief Supreme Court Justice Oliver Wendell Holmes and his colleagues used Jacobson v. Massachusetts to endorse the practice eugenics,24 an idea that Hitler took and ran with during the Holocaust.25
Jacobson v. Massachusetts Used for Eugenics in Virginia
In Buck v Bell (1927),26 Holmes ruled that the state of Virginia could use police power to protect the public health by involuntarily sterilizing a poor 17-year old single mother, Carrie Buck, who state officials had incorrectly judged to be morally unfit and mentally retarded – in effect, genetically defective - just like they said Carrie’s daughter and mother were.27
In one of the most chilling statements in American jurisprudence, Holmes declared, “It is better for the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough!”
The Ends Do Not Justify the Means
In the merciless 1927 Buck v. Bell decision, just as in the Machiavellian 1905 Jacobson v. Massachusetts decision, ethical principles grounded in respect for individual human life and civil liberties were stripped from U.S. law. The reasoning was that if utilitarianism could be used to create forced vaccination laws to immunize society from infectious disease, then forced sterilization laws could be created to immunize society against becoming infected with bad genes. The immoral premise that “the ends justifies the means” created a perfect climate for what became a tyranny of the majority.28
By 1932, mandatory sterilization laws had been passed in 29 states. More than 60,000 Americans were involuntarily sterilized by public health officials before the barbaric medical practice was ended by most, but not all, states in the late 1940s.29
Informed Consent Is a Human Right
Utilitarianism was discredited as a pseudo-ethic in 1947 at The Doctor’s Trial at Nuremberg after World War II. The horrifying truth about what can happen when utilitarianism is used to create public health law was exposed for the whole world to see30 31 and gave birth to the informed consent principle articulated in the historic Nuremberg Code.32 The next year, basic human rights that include autonomy and freedom of thought, conscience and religious belief were affirmed in the Universal Declaration of Human Rights.33
Ever since, informed consent to medical risk taking has been the central ethical principle guiding the ethical practice of modern medicine.34 Except that public health officials and doctors giving vaccines in America today don’t want to respect that ethical principle.35 36 37 38 39 40
In 2005, professors of law and bioethics at Boston University wrote about how Jacobson v Massachusetts is no longer relevant. They said that, “Jacobson was decided in 1905, when infectious diseases were the leading cause of death,” and when “Few weapons existed to combat epidemics.... Preserving the public’s health in the 21st century requires preserving respect for personal liberty...Public health programs that are based on force are a relic of the 19th century; 21st-century public health depends on good science, good communication, and trust in public health officials to tell the truth.” 41
How we can we trust public health officials who think that some children are expendable for the rest? Jacobson v. Massachusetts is a Supreme Court decision that allows government to commit human rights abuses.
Educate your legislators about the importance of protecting human rights in vaccine laws. Browse NVIC.org for more information and create a free account at NVICAdvocacy.org today to learn more about what you can do and how to get involved.
It’s your health. Your family. Your choice.
1 Jacobson v. Massachusetts. 197 U.S. 11(1905). Cornell University Law School.
2 Gostin LO. Jacobson v. Massachusetts at 100 Years: Police Power and Civil Liberties in Tension. Am J Public Health 2005; 95(4): 576-581.
3 Gostin LO. The Model State Emergency Health Powers Act (MSEHPA) Dec. 21, 2001 Draft for Discussion Prepared for the Centers for Disease Control (CDC) to Assist the National Governors Association (NGA), National Conference of State Legislatures (NCSL), Association of State and Territorial Health Officers (ASTHO) and the National Association of County and City Health Officers (NACCHO). The Center for Law and the Public’s Health at Georgetown and Johns Hopkins Universities. Dec. 21, 2001.
4 Fisher BL. Smallpox and Forced Vaccination: What Every American Needs to Know. The Vaccine Reaction Winter 2002.
5 Center for Law & the Public’s Health at Georgetown & John’s Hopkins Universities, CDC Collaborating Center Promoting Health Through Law. The Model State Emergency Health Powers Act (MSEHPA) Legislative Surveillance Table as of July 15, 2006.
6 NVIC. Public Comment on Aug. 15, 2016 CDC Notice of Proposed Rule Making: Control of Communicable Diseases. Oct. 14, 2016.
7 Fisher BL. Pertussis Microbe Outsmarts the Vaccines As Experts Argue About Why. NVIC Newsletter Mar. 27, 2016.
8 Tuttle B. Workers are Being Fired for Refusing to Get Flu Shots. Time Nov. 15, 2015.
9 Huygelen C. Jenner’s cowpox vaccine in light of current vaccinology. Verh K Acad Geneeskd Belg 1996; 58(5): 479-536.
10 Roos KL. Eckerman NL. The Smallpox Vaccine and Post Vaccinal Encephalitis. Semin Neurol 2002; 22(1): 095-098.
11 Fulginiti V, Papier A et al. Smallpox Vaccination: A Review Part III. Adverse Events. Clin Infect Dis 2003; 37(2): 251-271.
12 Murphy FA, Osburn BI. Adventitious Agents and Smallpox Vaccine in Strategic National Stockpile. Emerg Infect Dis 2005; 11(7): 1086-1089.
13 CDC. Side Effects of Smallpox Vaccination. National Center for Emerging and Zoonotic Infectious Diseases Feb. 7, 2007.
14 Institute of Medicine Committee to Review Adverse Effects of Vaccines. Adverse Effects of Vaccines: Evidence and Causality: Evaluating Biological Mechanisms of Adverse Events (p. 57-102), Increased Susceptibility (p. 82). Washington, DC: The National Academies Press 2012.
15 Lin Y, Yongqun H. The ontology of genetic susceptibility factors (OGSF) and its application to modeling genetic susceptibility to vaccine adverse events. J Biomed Semantics 2014; 5:19.
16 Cornell University Law School. 14th Amendment to U.S. Constitution.
17 Conis E. “Do We Really Need Hepatitis B on the Second Day of Life?” Vaccination Mandates and Shifting Representations of Hepatitis B. J Med Humanit 2011; 32(2): 155-166.
18 Lapoint T. Parents Blackmailed by Doctor: Consent to Vaccine Or We Take Your Newborn. Inquisitr May 23, 2014.
19 Sacramento Bee. Scores of Students Without Vaccine Proof Sent Home on the First Day of School. August 12, 2016
20 Green EL. Students in Baltimore region without required immunizations will be barred from schools. Baltimore Sun Feb. 14, 2016.
21 Moore A. Hedonism. Stanford Encyclopedia of Philosophy Oct. 17, 2013.
22 Utilitarian Philosopy.com. Utilitarian Philosophy.
23 Anderson K. Utilitarianism: The Greatest Good for the Greatest Number. Probe Ministries International 2004.
24 Stern AM. STERILIZED in the name of Public Health. Am J Public Health 2005; 95(7): 1128-1138.
25 Black E. The Horrifying American Roots of Nazi Eugenics. History News Network September 2003.
26 Supreme Court Upholds Sterilization of the Mentally Retarded – Buck v. Bell, 274 U.S. 200, 475 Ct. 584, 71L, Ed. 1000 (1927). LSU Law Center.
27 University of Virginia. Eugenics: Buck v Bell, The Test Case for Virginia’s Eugenical Sterilization Act. Claude Moore Health Science Library 2004.
28 Cohen A. Democracy in America, Then and Now, A Struggle Against Majority Tyranny. New York Times Jan. 23, 2006.
29 Tolerance.org. American Gothic: Race and Ethnicity. Teaching Tolerance Magazine 2003; 23.
30 Schultz JJ. The Doctor’s Dilemma: The Utilitarian Medical Ethics of Nazi Physician Karl Brandt. University of Toronto Journal 2013; 90(4): 176.
31 Bekier M. The Ethical Considerations of Medical Experimentation on Human Subjects. Chapter 7 in Medical Ethics: City University of New York. Nov. 18, 2010.
32 Annas GJ, Grodin MA. The Nazi Doctors and the Nuremberg Code. Oxford University Press 1992.
33 United Nations. Universal Declaration of Human Rights. Dec. 10, 1948.
34 American College of Physicians and Surgeons. Informed Consent. ACOG Committee on Ethics Opinion. Reaffirmed 2015.
35 National Association of County and City Health Officials (NACCHO). Eliminating Personal Belief Exemptions from Immunization Requirements for Child Care and School Attendance. NACCHO Board of Directors Statement of Policy July 2011.
36 American Academy of Family Physicians (AAFP). Pediatric Infectious Diseases Society Rejects ‘Personal Belief’ Immunization Exemptions. AAFP News May 4, 2011.
37 Association of Immunization Managers (AIM). Position Statement on Personal Belief Exemptions from State Vaccination Mandates. Jan. 21, 2014.
38 American Medical Association (AMA). AMA Supports Tighter Limitations on Immunization Opt Outs. AMA June 8, 2015.
39 American College of Physicians (ACP). State Immunization Laws Should Eliminate Non-Medical Exemptions Say Internists. ACP July 29, 2015.
40 American Academy of Pediatrics. Eliminate nonmedical immunization exemptions for school entry. AAP Aug. 29, 2016.
41 Mariner WK, Annas GJ, Glantz LH. Jacobsen v Massachusetts: It’s Not Your Great Great Grandfather’s Public Health Law. Am J Pub Health 2005; 95(4): 58-590.
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