A 1905 Supreme Court Case From Cambridge Echoes Today’s Vaccine Mandate Debate

Private companies and public entities are increasingly turning to vaccine “mandates” as a weapon in the fight against the spread of COVID-19, especially as the Delta variant makes inroads. Daniel Medwed, GBH News legal analyst and Northeastern law professor Daniel Medwed joined Aaron Schachter on Morning Edition to discuss whether these vaccine mandates are likely to withstand the inevitable flurry of courtroom challenges.

Schachter: The term “vaccine mandate” seems to cover a bunch of concepts, including making vaccination a condition of employment. There is also the phrase vaccine “passports,” which would make vaccination necessary to access certain services. In general, what legal arguments support these restrictions?

Medwed: There seem to be two primary arguments. First, that states have the right to regulate during public health crises, for instance, by imposing mask requirements or travel quarantines, and vaccine mandates are just an outgrowth of that principle. Second, that private companies have an interest in protecting the health of patrons and employees, and deserve some deference on how to do it.

There’s a tradition of similar restrictions, for instance, you need proof of vaccination for your children to attend many schools, and private businesses often limit access to services — you usually have to wear shoes to eat in a restaurant. I think these measures will probably hold up in court as long as they don’t infringe on constitutionally protected interests, like requiring vaccination to vote, or go to church, and have reasonable exemptions for people who can’t be vaccinated because of personal health risks or hold sincere religious beliefs against them.

Schachter: What about the arguments against these mandates?

Medwed: The arguments against revolve around individual freedom, including the right to privacy, the idea that citizens shouldn’t be compelled to do something that might interfere with what they view as a personal health decision. One major complication, of course, is that the vaccines are currently being distributed under an Emergency Use Authorization (EUA), and that adds ammunition to the argument against them. Vaccine mandates will stand on an even stronger legal footing when the vaccines receive the full green light from the FDA.

Schachter: Daniel, last week two UMass students filed a federal lawsuit asking for an injunction to allow then to attend in-person classes without vaccination, as required by the school. Have any courts had a chance yet to rule on the validity of the current wave of COVID-19 vaccine mandates?

Medwed: It’s still pretty early, but a federal appeals court in Chicago, the Seventh Circuit, issued a major decision last week. Eight students from Indiana University asked the court for an injunction that would prevent the school from enforcing its vaccine mandate. The court ruled in favor of the university. In the opinion, Judge Frank Easterbrook argued that each university may decide what is necessary to keep its students safe; that students often must do things that they would prefer not to do; and that students who choose not to be vaccinated may vote with their feet and go to a school without a mandate. This precedent could inform other courts down the line, including in the federal lawsuit you mentioned against UMass.

Schachter: Is there any U.S. Supreme Court precedent that is on point here?

Medwed: Yes, Easterbrook cited a 1905 Supreme Court case that emanated from right here in Massachusetts and that echoes a lot of the current arguments. The City of Cambridge had implemented a regulation that would levy a $5 fine on an any resident who failed to get the smallpox vaccine. A local pastor, Henning Jacobson, had had a bad experience with vaccines in his native Sweden, refused to get the vaccine or to pay the fine. He made arguments that resonate with today’s debate, claiming that this regulation interfered with his personal health decision. In a 7-2 decision, the Supreme Court ruled in favor of Cambridge, holding that “every well-ordered society” is obligated to keep its citizens safe and that sometimes — “under the pressure of great dangers” — citizens may be subject to “reasonable regulations.”

Schachter: What happened after that case? Did Jacobson get the smallpox vaccine?

Medwed: Apparently, he chose to pay the $5 fine and take his chances with smallpox.

Schachter: History may indeed be repeating itself. Thanks, Daniel.

WATCH: Daniel Medwed on 1905 Cambridge case