Published December 18, 2015
In its 1905 precedent setting split decision in the case of Jacobson v. Massachusetts, the U.S. Supreme Court, by a...
— William Wilberforce
A well-worn maxim stemming from early American usage is, “If it’s not broke, don’t fix it.” The same concept applies to the uninformed mandated use of vaccines; if there is no compelling need (as, for example is now the case with the smallpox vaccine) it is reasonable to question whether one should blindly submit to a medical procedure carrying a risk of injury or death, no matter how small.
A quick review of the medical literature on even smallpox vaccine, past and present, reveals more than a century of clinical reports of catastrophic complications, including brain inflammation and vaccinia infection, that can cause significant suffering for the vaccine recipient and close contacts.1 2 Numerous other vaccines can have equally crippling consequences3 4 and medical science has still not developed a real way to predict who will suffer them.5 It is the ultimate example of the old business admonition, caveat emptor.
This is particularly so in light of changes in product liability and medical malpractice law related to vaccination that took place in the U.S. in the late 20th and early 21st centuries. Today, pharmaceutical companies marketing vaccines and doctors giving vaccines to children and adults (as well as government officials recommending or mandating vaccines) are functionally—and ironically—“immune” from what would otherwise be recoverable legal damages for product liability or malpractice.
The majority of the public is unaware that citizens cannot sue a vaccine manufacturer or a doctor in a civil court when a vaccination, often mandated for school attendance or employment, irreparably damages a person’s health or even ends a life. The U.S. Congress passed a law in 19866 and the U.S. Supreme Court issued a decision in 20117 that bans all vaccine injury lawsuits against vaccine manufacturers—even when there is compelling evidence the company could have made a vaccine safer.
Vaccines are “unavoidably unsafe,” the Supreme Court declared and, therefore, FDA licensed vaccines should be shielded from product liability lawsuits. Yet, on February 23, 2011, one day after the Court blocked lawsuits against drug companies for failing to make vaccines safer, they cleared the way for lawsuits against car manufacturers for failing to make seat belts safer!8
How did we get to the point in America where corporations, government health officials and doctors have no legal accountability when they sell, mandate and administer vaccines that can cause bodily harm?
To answer that question, we have to go back in history to a rule handed down by the United States Supreme Court over a century ago in the disturbing case of Jacobson v. Massachusetts, 197 U.S. 11 (1905).9 That case involved a person’s refusal to submit to mandatory smallpox vaccination under an 1892 state law, on the grounds that he had experienced a strong adverse reaction to a previous vaccination. Requiring him to submit to another, he argued, constituted an assault on his person and violated his due process and equal protection rights under the Fourteenth Amendment.
The Supreme Court ruled that the state legislature had studied the issue and had sufficiently compelling health grounds to mandate smallpox vaccination for the common good, irrespective of potential individual adverse consequences. Using a literal “double negative,” the Court expressly ruled that “the matured opinions of medical men [sic] everywhere, and the experience of mankind, as we all know, negative the suggestion that it is not possible… to determine whether vaccination is safe.” Thus, the court’s opinion went off on what is now a demonstrably false proposition, i.e., that “medical science” can always predict whether or not a vaccination will injure or kill a person.
Even regarding those who might be harmed by vaccination, the Court ruled that it, nevertheless, “was the duty of the constituted authorities to keep it in the welfare, comfort, and safety of the many, and not permit the interest of the many to be subordinated to the wishes war convenience of the few.” Aside from relegating what was, in fact, a serious health risk to the status of personal “convenience,” ironically, the ruling actually meant that because vaccines are unpredictable, there should be no significant restrictive standards for them! Rather, a person must prove—presumably to doctors or state officials or a court—that he or she has a “unique health condition” in order to be considered for exemption from mandatory vaccination.
This, of course, is a judicially-imposed task which often may be impossible to do. For example, a newborn infant or child may have unidentified increased biological susceptibility that raises the risks for being harmed by arbitrary vaccination. Accordingly, unless a person can shoulder the heavy burden of showing “gross negligence” in the administration of a vaccine, neither the state nor doctor giving the vaccine is held liable for such ad hoc vaccine reactions.
This kind of thinking – even though it occurred during that period of American history known as the “Progressive Era” – was reflective of the post-Victorian frame of mind in the Supreme Court at the turn of the 20th century. The same year that Jacobson was issued, the Court in Lochner v. New York, 198 U.S. 45 (1905) struck down a New York statute which limited the workweek to 60 hours. The Court found the statute to be a violation of the “liberty of contract” and the due process clause of the Fourteenth Amendment and rejected the argument that it was a “health measure.” The workers at issue, the Court ruled, were able “to assert their rights and care for themselves without the protecting arm of the State interfering with their independence of judgment and of action.”
Not long after, the Supreme Court also affirmed the abuse of child labor, refusing to strike down a North Carolina statute attempting to regulate child labor practices in Hammer v. Daghenhart, 247 U.S. 251 (1918). It ruled that the power “to regulate the hours of labor of children in factories and mines within the states, [is] a purely state authority” for which it may choose an economic policy of laissez-faire.
Similarily, in Adkins v. Children’s Hospital, 261 U.S. 525 (1923), the Court struck down a District of Columbia (federal) minimum wage law for female workers as “an unconscionable infringement of liberty of contract” protected under the principle of “due process of law.”
Finally, during the early 20th century, the appalling Virginia practice of statutorily-required sterilization of citizens judged by the state to be mentally-retarded, was affirmed by the Court in Buck v. Bell, 274 U.S. 200 (1927).10 In a decision that endorsed a eugenics solution to what was seen as a public health problem, the Court held that a young woman declared to be mentally retarded by state officials could be sterilized without her consent. Invoking the utilitarian rationale used in Jacobsen v. Massachusetts, the Court affirmed that a state may impose such a “health regulation” based on the conclusion that:
It is better for all the world, if instead of waiting to execute degenerate offspring of crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes. Jacobsen v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.
For most of the time that these cases were handed down, women and mothers, in particular, were not only rendered powerless in terms of making health care choices for their children but also had no right to control their own physical bodies or health safety at work. The over-arching paternalistic view that “doctors and state officials know best” prevailed at a time when women were not even allowed to vote for legislators and judges, who had the final word on such issues, until the passage of the Nineteenth Amendment in 1920 giving women voting rights.
Although each of the previously mentioned labor-related cases have since been challenged and overruled, the Jacobson mandatory vaccination case has never been challenged and now—more than a century later—remains “good law” at the nation’s highest legal echelon. This dramatically demonstrates how far behind the times current statutes, regulations, and courts are in the area of vaccine policy and law.
As the venerable Justice Felix Frakfurter observed, however, “Our law does not stick … in the past.” Rios v. United States, 364, U.S. 253, 235 (1960)(dissenting). The Jacobson ruling is a classic example of outdated and fossilized thinking. It is also an example of how the power of “big medicine” has come to dominate health care and restrict the freedom of citizens to protect bodily integrity and make voluntary choices about their health care.11
Looking at the mid-Atlantic region clustered around the Nation’s Capital, state court rulings are as revealing as they are discouraging. Nearly 40 years ago, the Delaware Supreme Court likened the Jacobson standard to that of “judicial notice,” i.e., implying the concept that “everybody knows” about vaccines and their risks and therefore “the court knows.” Mayor and Council of the City of Dover v. Kelley, 327 A.2d 748, 754 (Del. 1974).
The last time New Jersey dealt directly with Jacobson was in 1956, when it utilized the rule in that case to reassert that states are not limited by “due process” in imposing “reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Gundaker Central Motors, Inc. v. Gassert, 127 A.2d 566, 571 (N.J. 1956).
In Pennsylvania, the rule was most recently expressed in Schmehl v. Wegelin, 927 A.2d 183, 196 (Pa. 2007), where it was likened to the power of the state to enforce compulsory education.
Virginia also still cleaves to the “come-what-may” Jacobson rationale. Its most recent State Supreme Court ruling in this area was in Cavuoto v. Buchanan County, 605 S.E.2d 287, 289 (Va. 2004), in which the Court held that, while a person can refuse personal medical treatment altogether, it distinguished and delimited that right where vaccinations are concerned.
Maryland similarly recognizes a parent’s right to exercise any healthful and proper “care, custody and management” of his or her children, except in the area of state mandated vaccines. In re Adoption J9610436, 796 778. 780 (Md. 2002). And, as a federal enclave, the District of Columbia, of course, is bound directly by Jacobson. Huffman v. District of Columbia, 39 A.2d 558, 560 (D.C. 1944).
It should be noted, however, that in the previously mentioned states, as in many others, there are exceptions to the Jacobson Rule, typically allowing exemptions to vaccination for religious or conscientiously held beliefs or state-approved medical reasons. However, as noted above, the ability to secure an exemption to state mandated vaccinations in some states comes with a heavy burden of proof for the person involved when, in fairness and under the law, the burden should always be on the government (or, in the case of a manufacturer, a standard of res ipsa loquitur).
The troubling legacy of the Jacobsen decision in the early 20th century has paved the way for a populist movement questioning the science and ethics anchoring mandatory vaccination laws in the 21st century.13 State legislatures have become battlegrounds where drug companies, government health agencies and medical groups seeking new vaccine mandates1 and removal of vaccine exemptions from public health laws are being opposed by grassroots citizen groups calling for informed consent provisions and protection of religious and conscience exemptions in vaccine laws.14 15
To summarize, very real, practical, and compelling issues are at stake if the flawed and outdated Jacobson v. Massachusetts decision continues to stand and serve as a guidepost for U.S. public health law: First Amendment freedoms; Tenth Amendment rights; due process of law; and equal protection of the law. All of these vast and complicated legal areas are being truncated and submerged in the Jacobson miasma.16 17
Only when concerned parents, grandparents, lawyers, physicians, health care workers, charitable and public service organizations work together to change law to strike a fair and equitable balance between civil liberties and public health policy can the unfortunate legacy of Jacobsen be reversed. Otherwise, like F. Scott Fitzgerald’s character Nick Caraway, Gatsby’s confidant, we will simply “beat on, boats against the current, borne back ceaselessly into the past”—at the peril of ourselves and, even worse, of our children and grandchildren as well.
Note: Ronald A. Goodbread is a civil and criminal lawyer and retired trial judge on the D.C. Superior Court. A member of the Bars of DC, VA, MD and PA, his career spans nearly 40 years practicing law in state and federal courts and in the U.S. Supreme Court. He is a leading authority in forensic DNA cases and was legal editor for the Daily Washington Law Reporter. A former professor of history, Judge Goodbread holds three degrees in history and lectures at the university level on American and European History. He is a proud grandfather of four.References:
1 Kretzschmar M, Wallinga J, Teunis P et al. Frequency of Adverse Events After Vaccination with Different Vaccinia. PLOS Medicine Aug. 22, 2006.
2 Manier J. Smallpox shot infects soldier’s toddler son. Chicago Tribune Mar. 17, 2007.
3 Coulter HL, Fisher BL. DPT: A Shot in the Dark. New York: Harcourt Brace Jovanovich 1985.
4 Health Resources Services Administration. National Vaccine Injury Compensation Program Statistics Report.
5 Institute of Medicine Committee to Review Adverse Effects of Vaccines. Adverse Effects of Vaccines: Evidence and Causality. Increased Susceptibility (page 82). Washington, D.C. The National Academies Press 2012.
6 National Childhood Vaccine Injury Act of 1986 (PL99-660).
7 Supreme Court of the United States. Russell Bruesewitz et al v. Wyeth et al. No. 09-152. Argued Oct. 12, 2010 – Decided Feb. 22, 2011.
8 Supreme Court of the United States. Williamson et al v. Maza Motor of America, Inc. et al. No. 08-1314. Argued Nov. 3, 2010 – Decided Feb. 23, 2011.
9 Jacobsen v. Massachusetts, 197 U.S. 11(1905. LSU Law Center.
10 Supreme Court Upholds Sterilization of the Mentally Retarded – Buck v. Bell, 274 U.S. 200, 475 Ct. 584, 71L, Ed. 1000 (1927). LSU Law Center.
11 Curry L. The Human Body on Trial: A Handbook with Cases, Laws and Documents. Santa Barbara, CA: ABC-CLIO 2004.
12 National Vaccine Information Center.
13 Pettypiece S, Zimm A. Merck Stops Campaign to Mandate Gardasil Vaccine Use. Bloomberg News Feb. 20, 2007.
14 Panebaker A. Parents Hold Fast to Exemption for Vaccines. VTDigger Feb. 28, 2012.
15 La Vigne P. Vaccine Bills Threaten Vaccine Choices. NVIC Vaccine Newsletter Apr. 22, 2013.
16 Mariner WK, Annas GJ, Glantz LH. Jacobsen v Massachusetts: It’s Not Your Great Great Grandfather’s Public Health Law. Am J Public Health 2005; 95(4): 581-590.
17 Colgrove J, Bayer R. Manifold Restraints: Liberty, Public Health and the Legacy of Jacobsen v Massachusetts Am J Public Health 2005; 95(4): 571-576.