America's Vaccine Mandates
By Brendan Wilson
A deadly disease rips through a vulnerable population, locking down schools and businesses. A government under pressure to act imposes a vaccine mandate. Advocacy groups protest the infringement of their rights. The Supreme Court is forced to rule. The year is 1905, the setting is Massachusetts, and the disease is smallpox.
Not much in the course of human events is completely new. The debate over vaccine mandates that pits individual rights against public safety measures has been fought for centuries and will continue long after Covid-19 becomes endemic.
This reality came into focus when Joe Biden, apparently forgetting that he came out against them last year, unveiled a mandate of his own in September. It compels all companies with more than 100 employees to require that their workforce become vaccinated or submit to weekly testing. The order also applies to federal workers and companies contracting with the federal government. More than 100 million Americans will be affected.
“We’ve been patient, but our patience is wearing thin,” the President told the unvaccinated. “Your refusal has cost all of us.”
Perceived executive overreach is a full chum bucket, and corporate and statehouse lawyers smelled the blood in the water as soon as Mr. Biden stepped away from the podium. In the last few months, the case has ping-ponged through our appellate court system, first being scathingly smacked down by the 5th Circuit Court, then revived by a divided three-judge panel in the 6th Circuit.
“The record establishes that Covid-19 has continued to spread, mutate, kill and block the safe return of American workers to their jobs,” Judge Jane B. Stranch wrote for the majority. “To protect workers, [the government] can and must be able to respond to dangers as they evolve.” Jab-fest 2022 is back on!
Covid-19 has forced us into a new reality: draconian lockdowns, mass death, invasive health measures. But as it turns out, we’re no pioneers in a dystopian new world. Since our earliest days, our country has experienced deadly disease and fought it with forced inoculation.
245 years ago, a smallpox epidemic threatened to derail our bid for independence from Great Britain. Troop movements being the conveyor belts of disease, the outbreak of the 1770’s was one of the continent’s worst. It was illness, not British cannon fire, that doomed the American invasion of Canada in 1775 and threatened to consume the entire Continental Army in 1776. With more than half of his original troops sick or dying, George Washington lamented to Patrick Henry that smallpox was “more destructive to any army in a natural way, than the sword of the enemy.”
But there was a solution: a process called variolation that took the pustule of an infected person and transferred it under the skin of an otherwise healthy one, who would then contract a mild form of the disease but recover with immunity against future infection. Facing no other option, Washington mandated that all Continental soldiers undergo the procedure.
The effects were astonishing. Smallpox all but vanished from the ranks by the following year. Stirred by the success of the campaign, Washington wrote his brother that he would advocate “a law to compel the masters of families to inoculate every child born within a certain limited time under severe penalties.”
Years later, inoculation became even safer when Edward Jenner discovered a novel method using Cowpox in 1796. His process was called vaccination after the Latin word for cow.
Throughout the 19th century, state and local governments passed laws mandating smallpox vaccines. Despite the mortal threat of outbreak, the measures were often met with widespread fury. Religious organizations preferred the will of God. Anti-vaccination groups called mandatory vaccination “the greatest crime of the age.” Opponents spread misinformation about excessive death and deformities caused by vaccination.
In 1902, smallpox engulfed Massachusetts, leading the Board of Health to require vaccinations for all residents. A Lutheran Pastor named Henning Jacobson rejected the vaccine and used his pulpit to rail against its dangers, claiming that the only people harmed by his refusal to be vaccinated were those that voluntarily chose the same course.
Jacobson’s case climbed the legal ladder to the Supreme Court in 1905, which issued a 7-2 ruling against him. Writing for the majority, Justice John Marshal Harlan declared 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.” Vaccine mandates imposed by state and local governments were thereafter constitutional.
The Jacobson ruling gave way to similar vaccine mandates over the following century. Eventually, all 50 states would pass laws mandating various vaccines such as polio, measles, diphtheria, hepatitis B, and others for school age children. For the last 100 years, soldiers were only sent abroad after having received vaccines against a host of maladies. Despite the countless lives saved and the eradication of many once deadly diseases, vaccines still face stiff opposition from advocacy groups concerned over associations with conditions such as autism.
Covid-19 has once again thrust this debate to the fore. The Supreme Court last week refused to hear challenges to laws in Maine, New York, and New Mexico requiring that all health care workers be vaccinated. Last week, it announced that it would hear arguments on Biden’s mandate on January 7th.
The question is whether the federal government has the power to impose a sweeping mandate that affects private sector employees. It does not.
The administration claims that its legal authority is rooted in the OSH Act of 1970, which gives the Occupational Safety and Health Administration legal authority to enact emergency measures to protect employees endangered by “toxic or physically harmful” substances. But stretching the reading of a law intended to protect workers from noxious chemicals to include a virus is a blatant overreach, as the 5th Circuit Court highlighted last month. Further, it is worth noting that the emergency measure has been infrequently invoked since 1983 when an attempt to use to for asbestos was struck down by courts.
The Constitution grants the authority to regulate individual behavior and public health to the states. Neither Congress nor the Constitution has granted that power to the federal government.
It is the opinion of this blog that Covid-19 vaccines have been proven safe and effective at preventing severe illness and that reasonable measures should be taken to boost vaccination rates. History shows us that these measures can include state, local, and private vaccine mandates, which have been imposed successfully and deemed constitutional when imposed at the state level or for government employees such as soldiers.
The federal government has done what it can to control the pandemic, albeit not always with awe-inspiring success. It has sourced PPE, funded research, mobilized testing, and most importantly, supported the development of several vaccines in record time. It should now step back and support state governments in carrying out their own Covid responses. Above all, the federal mandate should be struck down.
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Roos, D. (2021, January 6). When the Supreme Court ruled a vaccine could be mandatory. History.com. Retrieved December 30, 2021, from https://www.history.com/news/smallpox-vaccine-supreme-court
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