American States have authority to fine or jail people who refuse Covid-19 vaccine from law dating back to 1905
Businesses could also fire people for not taking the vaccine, expert says.
The law dates back to 1905 after a landmark U.S. Supreme Court case, Jacobson v. Massachusetts and says 14th Amendment doesn’t matter.
The court ruled Massachusetts had the authority to fine people who refused vaccinations for smallpox.
The state law empowered the board of health of individual cities and towns to enforce mandatory, free vaccinations for adults over the age of 21 if the municipality determined it was necessary for the public health or safety of the community after smallpox ravaged the area in 1902.
Adults who refused were subject to a $5 monetary fine and jailed if they didn’t pay.
Cambridge Pastor Henning Jacobson had been fined 5 dollars for refusing the vaccine in 1902 saying that his childhood vaccination had gone badly, leaving him with a “lifelong horror of the practice”.
Jacobson refused vaccination saying that “he and his son had had bad reactions to earlier vaccinations” as children and that Jacobson himself “had been caused great and extreme suffering for a long period by a disease produced by vaccination.”
When his case got to court three years later in 1905 he said that subjecting him to a fine or imprisonment for neglecting or refusing vaccination was an invasion of his liberty, the law was “unreasonable, arbitrary and oppressive”, and that one should not be subjected to the law if he or she objects to vaccination, no matter the reason.
However, the court ruled against him stating that the Massachusetts law did not violate the Fourteenth Amendment.
The Court held that “in every well ordered society charged with the duty of conserving the safety of its members 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” and that “real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”
The Court held that mandatory vaccinations are not arbitrary or oppressive so long as they do not “go so far beyond what was reasonably required for the safety of the public”.
The 14th Amendment is the protection of ‘civil rights’ for American citizens.
So is this law still in use today in individual states?
The short answer is yes, according to Dov Fox, a law professor and the director of the Center for Health Law Policy and Bioethics at the University of San Diego.
“States can compel vaccinations in more or less intrusive ways,” he said in an interview. “They can limit access to schools or services or jobs if people don’t get vaccinated. They could force them to pay a fine or even lock them up in jail.”
“Courts have found that when medical necessity requires it, the public health outweighs the individual rights and liberties at stake,” Fox said.
Although states would have the authority to mandate vaccinations, there’s more doubt about whether Congress could enact a federal requirement.
Fox said that a federal vaccine requirement would likely be found ‘unconstitutional’ due to the U.S. most likely having a patchwork of different vaccine requirements in different states.
States that explore a vaccine requirement should only do so if the vaccine is widely and readily available, Fox said.
“Otherwise you create an underclass of people who are less safe and without access to the basic means of society,” he said.
“Religious exemptions are not constitutionally required by the First Amendment’s Free Exercise clause, provided that the vaccine mandates don’t single out religion; they’re not motivated by a desire to interfere with it,” he said.
In the workplace, private employers would have a lot of flexibility to require vaccinations and fire workers who refuse them for anything but legitimate medical concerns.
As long as employers show there are significant costs associated with having unvaccinated workers, they would not need to offer religious exemptions to employees, Fox said.