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The Original Anti-Vaxxer and President Biden's Vaccine Mandate The Original Anti-Vaxxer and President Biden's Vaccine Mandate

The Original Anti-Vaxxer and President Biden's Vaccine Mandate

President Biden’s recent orders regarding mandatory COVID-19 vaccines for federal contractors, the military and for all large (100+ employees) employers seem unprecedented.  However, they are not.  Let’s go back more than a century to discuss what may be the country’s original anti-vaxxer, a one Mr. Henning Jacobson of Cambridge, Massachusetts.

Around 1902 there was a smallpox outbreak in the Boston area.  As a result, the city of Cambridge adopted a regulation that required all residents who were over the age of 21 and who were not otherwise medically compromised to receive a vaccination against smallpox.  Mr. Jacobson, along with his compatriot, a one Mr. Pear, refused.  Pursuant to this law, they were both criminally charged for refusing the vaccination and ultimately found guilty after a jury trial.  Each had to pay a fine of $5.  Five bucks!  That’s it?  Well, five dollars at the time was worth about $155 today.  So, it seems that it was more-or-less about the cost of a speeding ticket in today’s dollars.

Both Messrs. Jacobson and Pear appealed their convictions to the Supreme Judicial Court of Massachusetts, the highest court in the Commonwealth.  That court, having reviewed the facts involved in the case, found that the police power was granted to the Commonwealth and its political subdivisions, such as the city of Cambridge, to require vaccinations in the interest of public safety.  This was not a law that required the forceable vaccination of residents.  Instead, those who did not comply were subject to a criminal penalty that, even by those days’ standards, was not a significant fine. 

Not to be deterred, Mr. Jacobson then appealed to the United States Supreme Court, asserting the requirement that he get vaccinated or face a criminal penalty was a violation of the U.S. Constitution.  Mr. Jacobson had offered proof that vaccines “quite often” caused serious and permanent injury to the health of the person vaccinated, and that vaccines occasionally resulted in death.  And, it was impossible to tell in any particular case what the results of a vaccination would be, and whether or not it would injure the health or result in the death of the recipient. 

Not persuaded by these arguments, the U.S. Supreme Court found that the police power under the Constitution was reserved to the states.  As a result, a state could use its police power to ensure public safety by requiring vaccinations.  The conviction was upheld, and Mr. Jacobson was subject to being “held” until the fine was paid.  How about that?  Mr. Jacobson was invited to be a guest for a few nights, all expenses paid, at the local pokey until he coughed up the $5.  In my research I could not find an epilogue to Mr. Jacobson’s adventure, but I hope he was able to pay the fine quickly.  Read more here:  Jacobson v. Massachusetts, 197 U.S. 11 (1905).

Let’s fast forward now to the present COVID‑19 pandemic and the federal “mandate.”  While constitutional scholars will tell you that police power is reserved to the states, and that the federal government does not have any police power (because at the time of the drafting of the Constitution, the states did not trust the federal government), it remains to be seen whether courts will find the vaccine mandate constitutional or not.  There have been a series of Supreme Court cases finding that a competent person can refuse health care regardless of whether or not the state desires to impose health care upon the person.  In addition, the Supreme Court has held that the power to regulate health care under the “commerce clause” has to have a rational relationship to commerce and not be an intrusion upon the police power, which is reserved to the states.  While we do not want to get into too deep of a constitutional analysis and bring ourselves back to high school government class, or perhaps political science in college, suffice to say that it is likely that President Biden’s administration will argue that the vaccine mandate is not an unconstitutional exercise of the police power, but rather, a constitutional exercise of the power to regulate commerce. 

How will the Administration argue that?  Well, the Occupational Safety and Health Act requires employers to maintain safe workplaces in the interest of commerce.  One way to maintain such safety is to test employees for COVID-19 to ensure that infected employees don’t spread the virus to others.  This is because the “mandate” does not require vaccinations.  It only requires those who are not vaccinated undergo weekly testing. 

It seems that a well-placed argument by the Administration may indeed hold up.  The biggest weakness to the Administration’s argument is that the directive is an “emergency temporary standard” and opponents may argue that if in fact there was an “emergency,” why wasn’t the standard issued before now? 

Notwithstanding, employers should start thinking about and be prepared to collect vaccine records or put in place a testing regimen to be compliant when the time comes.    

As this is a very rapidly developing area of the law, stay tuned for more updates and reach out to any Ice Miller employment lawyer to discuss these issues in more detail.  Or, if you want to talk about Henning Jacobson and the legal analysis of the great dissenter, Justice Harlan, in his case, reach out to Paul Bittner at Ice Miller.  And, when he’s not looking at century-old Supreme Court cases, Paul’s happy to talk about college football or NHL hockey.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.


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