"But it is equally true 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. "
Jacobson vs. Massachusetts, 1905
In the Spring of 1902, Dr. E. Edwin Spencer, chairman of the Cambridge, Massachusetts Board of Health, was going door to door as part of the enforcement effort of a vaccine mandate issued recently by the Board of Health. The region, since early 1901, was suffering from an extensive outbreak of smallpox. At the height of the epidemic, 3 out of 1000 people would contract the disease, and the death rate was 17 percent. It was one of the worst outbreaks in decades in the Boston area, but they were not alone. Communities across the United States, particularly New England and the Great Lakes region, struggled with similar smallpox outbreaks.
Smallpox was nothing new. It had ravaged human societies for centuries. Throughout history, it has had a high fatality rate. Evidence of smallpox has been found in Egyptian mummies, and the earliest descriptions come from the 4th century CE in China. Symptoms at the onset of the disease are fever and vomiting. Soon afterward, ulcers appear in the mouth, and the infected person develops pus-filled blisters, which give the condition its name. These blisters scab over and eventually fall off, leaving scars. There are two strains of smallpox: variola major and variola minor. Variola major is the most common and the most fatal of the two strains. Both are highly contagious.
Efforts to combat the disease appeared in India and China as early as the 10th century CE. The method employed was variolation - named after the virus itself. This method involved exposing a healthy person to smallpox material taken from a blister. This material was introduced by either scratching the arm or inhaling through the nose. Though this method hardly prevented symptoms from occurring, it did reduce the number of deaths from the disease. In 1796, English physician Edward Jenner noticed that milkmaids who had been exposed to cowpox appeared to be protected from smallpox. Familiar with the process of variolation, Jenner decided that perhaps instead of smallpox material, he would utilize cowpox to innoculate a person. Jenner tested his hypothesis on a young James Phipps. He administered the cowpox inoculation and then exposed Phipps several times to the smallpox virus. Phipps never came down with the disease. This new means of combating illness was given the term vaccine to distinguish it from the older variolation method. (The word vaccine is derived from the Latin word "vacca," meaning "cow.")
Through the early part of the 19th century, vaccination became more widespread. The state of Massachusetts was at the forefront of vaccine efforts in the United States. In 1827, they made the smallpox vaccine mandatory for all school-age children attending public school. In 1855, the state allowed local health boards to order adults to be vaccinated or revaccinated in the event of an outbreak. By the turn of the 20th century, 13 other states would follow Massachusetts' lead in requiring proof of vaccination for schoolchildren. Eleven others would require compulsory adult vaccination. Vaccination, though, was not without its detractors. Opponents were fearful of the safety of taking the vaccine. (At the time, not a farfetched fear as there was no regulation of vaccine production.) There were those that questioned the efficacy and believed that the side effects were far worse. Others did not understand why to risk a healthy person by injecting them with a virus. And a large number were opposed to mandatory vaccinations believing it violated their civil rights.
The first cases of smallpox appeared in Boston in the spring of 1901. The situation worsened throughout the summer, and by the fall, the city Board of Health enacted measures to curtail the epidemic. Smallpox patients were quarantined at special facilities. A voluntary vaccination program was started with free vaccine stations established throughout the city. Doctors visited businesses to administer vaccines to the workforce. By the end of the year, nearly 400,000 residents of Boston had been vaccinated. Because of the vaccine requirement for schoolchildren, the number of cases among children remained relatively low. Yet the number of cases in the adult population was still a concern for the city Board of Health. In January 1902, they enacted a vaccine mandate for all adults declaring: “all the inhabitants of this city who have not been successfully vaccinated since January 1, 1897, be vaccinated or revaccinated forthwith.” Physicians began going house to house in the most affected neighborhoods of Boston. The homeless shouldered much of the blame for the outbreak, and the city established "virus squads" to go into inexpensive boarding houses and forcibly vaccinate the residents.
Boston was a center of anti-vaccination sentiments. Opponents of the mandates argued they were "the greatest crime of the century" and vaccines would lead to the slaughter of "tens of thousands of innocent children." They likened the vaccine issue to slavery. Led by the Anti-Compulsory Vaccination League, there were several attempts to repeal Massachusetts' compulsory vaccination laws currently on the books. None of them were successful. The newspapers described the debate as a "conflict between intelligence and ignorance, civilization and barbarism."
The surrounding towns of Boston were not immune to the epidemic. In March 1902, the city of Cambridge followed Boston's example and declared compulsory vaccination for all adults. Failure to comply would result in a $5 fine or jail time. On March 15, as head of the Board of Health in the city, Dr. Spencer made his rounds among the residents to check on vaccination status. During his visitation, he knocked on the door of Henning Jacobson.
Jacobson had immigrated from Sweden with his family at a young age. A naturalized citizen, he had studied theology at a seminary in the Midwest. He was ordained in Kansas and then assigned to start a church among Cambridge, Massachusetts's growing Swedish immigrant population. Here he began the Swedish Evangelical Lutheran Augustana Church of Cambridge. He became an active member of the community. He met new arrivals at the docks and then assisted them in finding work and places to live. Pastor Jacobson objected when Dr. Spencer knocked on his door and informed him of the city's mandate. He had been vaccinated as a boy in Sweden and had suffered terribly from a bad reaction. He was healthy, and he did not see the reason for putting himself through that again. Nor did he wish to subject his children to the same if they were inflicted with the same reaction.
Dr. Spencer took no action at that moment in time. Three months later, though, the epidemic had spread into Jacobson's neighborhood. Many of his neighbors, sick and dying, were transported to area hospitals. Vaccinators again went door to door to vaccinate as many as they could, upwards to a hundred people a day. The police often accompanied them. On July 21, 1902, Dr. Spencer filed a criminal complaint against Henning Jacobson, who remained steadfast in refusing to get vaccinated or pay the fine. Six days later, he and a group of other vaccine refusers ended up in front of a judge. Jacobson argued that the mandates violated his individual right to attend to his own health. He also argued that the state laws violated the state and federal constitution by not considering his medical history.
Jacobson's case brought the attention of several anti-vaccine groups. They paid for legal fees and hired experienced lawyers to help argue his case in court. When the Massachusetts Supreme Court ruled against him, they appealed to the United States Supreme Court. Arguments before the court were heard in 1904, and then a ruling was handed down in 1905. In a 7-2 decision, written by Justice John Marshall Harlan (a vocal dissenter to the Plessy vs. Ferguson decision), the court ruled that public safety superseded individual rights. The government had as much right to protect its citizens from disease as it did to defend against a military invasion. Harlan wrote: “The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint. There are manifold restraints to which every person is necessarily subject for the common good.” Harlan argued that the state's responsibility to protect public welfare fell under the state's police power. The state could take action, such as mandating vaccines, to ensure the community's well-being as long as those actions were reasonable and applied equally. The Court's stress on "reasonable" provided some limitation on the power of the state and thereby tamped down on more strong-handed tactics like Boston's "virus squads."
The impact of the decision still reverberates today. The case of Jacobson vs. Massachusetts laid down the legal precedent for compulsory vaccination laws. A later case in 1922, Zucht v. King, would affirm the legality of requiring proof of vaccination for public school children.
Further Reading
Pox: An American History: Michael Willrich
Henning Jacobson Loses His Fight With The Board of Public Health Over Vaccination: New England Historical Society
Jacobson vs. Massachusetts: Harlan, John Marshall, and Supreme Court Of The United States. U.S. Reports: Jacobson v. Massachusetts, 197 U.S. 11. 1904 (Library of Congress)