There is a proposed bill in the Massachusetts legislature that would require all residents to be vaccinated. The so-called Pandemic Response bill permits forced quarantines and jail time for those who refuse the vaccination. Constitutional questions are being raised concerning the legitimate state power to mandate vaccines. Coincidentally, Massachusetts enacted the first mandatory vaccine law in 1809. That law was challenged by a man named Jacobsen in July of 1902.. He was arrested in Cambridge for refusing a mandatory smallpox vaccination. Judge Harlan wrote the decision for the court. It reads in part as follows:
” The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.”
Harlan went on to explain that “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 freed from restraint.” He held that there are times when a state may exercise its police powers in an “emergency” to protect itself and its inhabitants against “an epidemic of disease.”
Since that time, most states have mandatory vaccine statutes for school children. These have never been successfully challenged, despite recent arguments attempting to show a connection between these vaccines and autism.
The battle may be resumed soon. Over the weekend President Obama declared the Swine Flu Epidemic a “national emergency.” Those seem to be magic words when it comes to the exercise of a state’s police powers. If the Massachusetts legislation is passed, other states may enact their own statutes. Then fundamental issues of privacy under the fourth amendment, due process and equal protection may be addressed.
