Is It Constitutional and Desirable to Require Vaccinations?

(This is the first of two posts, in which I ask if it’s desirable and constitutional to require vaccinations as a matter of law. My more pragmatic policy proposals are in part two.)

As with many others, I’ve been on an anti-anti-vax rampage on social media.

(I should perhaps rethink my strategy, but it’s not clear that there is a good strategy for dealing with someone once they’re in that camp. It’s not the first such example, either. How do you argue with a Scientologist? How do you convince congressional Republicans that we won’t eliminate the deficit without either raising taxes or seriously harming the economy? There aren’t a lot of good solutions here.)

Thus, one of my more libertarian friends (who gets all her kids’ shots, thank G-d, but who thinks you should use an alternative vaccination schedule that delays vaccinations) posted on my wall to ask if I would really support an infringement on individual liberty in the form of forcing folks to get vaccinated.

To which I say: Hell yes! I would support it, and it would even be constitutional. Which is not the same thing as supporting such a policy as politically pragmatic — but I have an answer for that, too.

As for my personal preference for whether we should force people to get vaccines against airborne pathogens — when they have been proven safe and effective, winning near-universal support among medical experts: Yes, I do want to live in that world.

I suppose I’d allow an exemption for truly anti-modern-culture isolationists who agree to keep away from broader society. (The Amish seem not to qualify on either count, by the way, with the majority getting vaccinated AND their willingness to participate in commerce with outsiders. Zippers no, shots mostly yes. Who knew?))

But in the general population — among those healthy enough to be vaccinated, of course — yes, I would support forcing folks to get their shots. If you’re not willing, I would gladly levy a stiff fine. (I mean, I’m not proposing that we lock unvaccinated families in a tent inside a hospital in Newark where they have to poop in a bucket or anything. That would be inhumane.) This would be especially effective if it had a high ceiling and explicit instructions to judges that it should be proportional to income — since, you know, being an anti-vaxxer seems primarily to be a disease of privilege.

The Supremes ruled on this over a century ago, by the way, in Jacobson v. Massachusetts. In 1905, the court ruled that Massachusetts was within its power to fine Jacobson five dollars (equivalent to roughly $130 today) for failing to get vaccinated, at zero cost to himself, against smallpox.

The Wikipedia article is mostly accurate — relative to my skim of the case (IANAL, as always) — but read some of what the Supremes have to say on the matter. Pretty convincing, and definitive, stuff:

… 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. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. 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.1)Court footnote 7

Not a lot of wiggle room left there. Watch them apply it to this specific question:

Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It is to be observed that when the regulation in question was adopted smallpox, according to the recitals in the regulation adopted by the board of health, was prevalent to some extent in the city of Cambridge, and the disease was increasing. If such was the situation,—and nothing is asserted or appears in the record to the contrary,—if we are to attach, any value whatever to the knowledge which, it is safe to affirm, in common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the board of health was not necessary in order to protect the public health and secure the public safety. …


If the mode adopted by the commonwealth of Massachusetts for the protection of its local communities against smallpox proved to be distressing, inconvenient, or objectionable to some,—if nothing more could be reasonably affirmed of the statute in question,—the answer is that it was the duty of the constituted authorities primarily to keep in view the welfare, comfort, and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few.2)Court footnote 8

The court goes on, at length, in a way that might make the Ayn Rand followers of the world a bit uncomfortable. I feel no obligation to assuage their feelings, however. If what you’re doing might harm or kill me, the state has a right to stop you from doing it — even if it’s something as banal as forcing restaurant employees to wash their hands. Ditto foolish self-harm, such as with seat belt and helmet laws.

The decision is also a fantastic read for some historical context on exactly how far back the consensus on vaccines really reaches. For instance:

[Jacobson’s arguments] in the main seem to have had no purpose except to state the general theory of those of the medical profession who attach little or no value to vaccination as a means of preventing the spread of smallpox, or who think that vaccination causes other diseases of the body. What everybody knows the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief, and is maintained by high medical authority.3)Court footnote 10

It is therefore the law of the land that, when confronted with a deadly infectious disease that is reliably and safely vaccinated against, a state or municipality may affirmatively compel the populace to be immunized.

This has been the definitive law of the land for 110 years, and the medical consensus behind — and safety of — vaccines has only increased.

This decision is many times more remarkable because it is from an era (the start of the Lochner era — Jacobson was published just two months before Lochner v New York) where the Court had a much, much more restricted view of what the state is allowed to do under the Constitution. This is the same session when the court held it unconstitutional for a state to tell employers how many hours a worker could work, and yet it held mandatory inoculation against deadly disease to be fully constitutional and consistent with American values.

I agree on both counts — constitutionality and consistency with our values. This is doubly so when it comes to children. They’re not your property. If you starve them or assault them or psychologically torment them, the state can and should intervene.

On the affirmative side, you have to send them to school or educate them in some comparable way, period; the value of education is not up for debate. When parents won’t do what’s demonstrably in a child’s best interests, the state can intervene and — when the risk is serious — should seriously consider doing so.

Thankfully, there are less invasive policy choices that would likely lead to the same desirable outcome of a return to near-100% childhood vaccination. That is the subject of my next post.

Footnotes   [ + ]

1. Court footnote 7
2. Court footnote 8
3. Court footnote 10

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  1. Pingback: How to Solve the Vaccination Problem: Two Politically Feasible Proposals | shouting loudly

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