Pox (54 page)

It was an absurd argument, intended to jolt the justices from familiar ways of thinking. Pickering and Ballard could not have known that four years later Indiana would enact America's first eugenical sterilization law.

 

 

O
n April 2, 1903, the Supreme Judicial Court handed down its unanimous decision in
Commonwealth v. Pear; Same v. Jacobson
. The opinion was written by Chief Justice Marcus P. Knowlton. A Massachusetts native and Yale graduate, Knowlton had a long career in public life, including service in both branches of the state legislature and sixteen years as a superior court justice before he was appointed to the Supreme Judicial Court in 1887.
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Knowlton's opinion closely followed the path laid out for him in Bancroft's brief. “The rights of individuals must yield, if necessary, when the welfare of the whole community is at stake,” Knowlton declared. “This is true of the right to personal liberty as well as the right to property.” If quarantine and conscription were reasonable exercises of governmental power, then so was compulsory vaccination. “It is a fact of common knowledge that smallpox is a terrible disease whose ravages have sometimes swept away thousands of human beings in a few weeks,” Knowlton wrote. “It is equally well known that a large majority of the medical profession and of people generally consider vaccination, repeated at intervals of a few years, a preventive of the disease.” He cited the line of state cases upholding compulsory vaccination, noting that even cases such as
Adams v. Burdge
, which struck down measures issued by health boards, assumed that a legislature may interfere with individual rights of the unvaccinated “when smallpox is prevalent.”
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Knowlton also ruled that the trial court had properly excluded Jacobson's offers of evidence. Jacobson's propositions regarding the danger vaccination posed to him were matters of his personal belief, which could neither “affect the validity of the statute, nor entitle him to be excepted from its provisions.” The “theoretical possibility” that enforcement might result in an individual injury was insufficient to show that the statute itself was unreasonable. “The application of a good law to an exceptional case may work hardship.” Knowlton mused that the law still gave the “exceptional” individual an out: “the worst that could happen to him under the statute would be the payment of a penalty of $5.” (In fact, there was nothing to stop the government from prosecuting a single vaccine refuser again and again for repeatedly committing the same offense.)
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The Supreme Judicial Court handed the antivaccination movement a major defeat, affirming one of America's strongest vaccination laws. But Knowlton added a note of caution, sending an unmistakable signal to local boards of health. In certain instances, he said, “the time and manner of enforcement” might call for stricter judicial scrutiny. “If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise,
it is not in their power to vaccinate him by force
.”
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This was no casual aside. As anyone who read the Boston newspapers knew, physical force vaccination was hardly uncommon in turn-of-the-century America. Not everyone received a polite visit from the chairman of the board of health. From the African American shacks of Middlesboro, Kentucky, to the tenements of Italian Harlem to the huts of the Philippine city of Iloilo, American health officials, police, and soldiers had on numerous occasions enforced vaccination at the point of a gun or the end of a billy club. Like the “tramps” who had uttered “every imaginable threat from civil suits to cold-blooded murder” when the Boston virus squad burst into their South Boston lodging house in the middle of the night, Knowlton recognized that forcible vaccination was beyond the pale. Getting this noforce principle stated for the public record by one of the nation's most venerable state courts was a major achievement.
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The court handed down its decision that same day in the Commonwealth's cases against John H. Mugford. The court stated its ruling in a single sentence: “These cases are governed by
Commonwealth v. Jacobson
.” The verdicts against Mugford would stand.
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For Albert Pear, too, the Supreme Judicial Court was the end of the fight. He made no further appeal. But Jacobson had not finished litigating. It seems likely that the Massachusetts Anti-Compulsory Vaccination Society played a role in Pear's decision to step aside and let Jacobson appeal his case alone to the nation's highest court. Although Pear had a higher local profile, Jacobson's case presented a richer set of legal issues.

When Reverend Jacobson appeared for sentencing in the Middlesex County Superior Court on June 15, 1903, he had a new lawyer with him, George Fred Williams. The court fined Jacobson $5; Williams immediately filed a petition for a writ of error to the U.S. Supreme Court. The defendant asked for reversal on the grounds that the Massachusetts law violated the U.S. Constitution—specifically the Preamble, the Fifth Amendment, the Fourteenth Amendment, and the “spirit of the Constitution.” The superior court had also erred, Williams charged, in excluding Jacobson's offer of evidence.
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In 1904, the Supreme Court had no choice but to hear the case. Congress did not give the Court power to pick and choose its own constitutional cases until 1925. Appeals went out in alternative medical journals across the nation for donations to help the Massachusetts Anti-Compulsory Vaccination Society pay Henning Jacobson's legal costs. The minister's case had become a national cause célèbre for the movement, the first vaccination case to reach the Supreme Court.
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G
eorge Fred Williams was fifty years old when he took on Jacobson's case: a famous lawyer, political insurgent, and former U.S. congressman. Born to a patrician family in Dedham, Massachusetts, he attended Dartmouth College and the universities of Heidelberg and Berlin. As a young Boston lawyer in the 1880s, Williams emerged as an impassioned leader—along with the future mayor Josiah Quincy and the lawyer Moorfield Storey—of the Massachusetts Mugwumps, reform-minded men of privilege who bolted the Republican Party to support Grover Cleveland's 1884 presidential campaign. Once in the Democratic Party, Williams never left. He showed a greater interest than most Mugwumps ever had in the problems and politics of “the slums.”
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Williams was no stranger to long-shot political causes. As William Jennings Bryan's top political lieutenant in New England, he spoke out against the Spanish-American War and for Philippine independence, advocated tariff reduction and public ownership of utilities, called for an eight-hour workday and a progressive system of taxation that would “require full contribution from wealth and bear as lightly as possible on labor and the poor,” and stood for “liberty and self-government everywhere under the stars and stripes.” He ran as the Democratic nominee for Massachusetts governor three times in the 1890s, and lost every time. But he remained a force, bearing the Bryan standard at state and national conventions. By 1904, “this David of Massachusetts,” as the Boston
Arena
styled him, had largely retired from politics. But he still loved a good fight. As recently as 1903 Williams had argued, and lost, a bankruptcy case before the Supreme Court.
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On December 6, 1904, a large audience, including several members of the Massachusetts Anti-Compulsory Vaccination Society, filled the Old Senate Chamber in the U.S. Capitol to watch the Supreme Court hear oral argument in
Jacobson v. Massachusetts
. With Williams leading Jacobson's legal team, the pastor's constitutional case assumed a different tone. The well-reasoned brief that Williams and his partner, James A. Halloran, submitted to the Supreme Court contained few of the libertarian fireworks of the Pickering and Ballard briefs. Williams scotched the Fifth Amendment argument—a claim that was both futile (because the Supreme Court had long maintained that the Bill of Rights did not reach the states) and unnecessary (because the Fourteenth Amendment
did
). The new brief gave the police power its due, even acknowledging the right of states to regulate the practice of medicine. If Jacobson had actually been infected with small-pox, Williams conceded, the state would have had every right to defend the community against him. The brief disclaimed any objection to
voluntary
vaccination and conceded the right of any state to exclude unvaccinated children from its schools. But by entrusting local boards with arbitrary powers to inoculate a healthy individual with disease—without making any exception for adults with special health conditions—the Massachusetts legislature had deprived Jacobson of his liberty without due process of law. And by making health exceptions only for children, the law violated the Fourteenth Amendment's equal protection clause. “In the history of our Republic, and indeed of England,” Williams declared, “there is no parallel to such legislation.”
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In the brief and in oral argument before the Court, Williams offered his own version of the recent history of smallpox in the United States. He recalled the collapse of public confidence in American vaccine, and Cleveland's decision to fight smallpox with sanitation rather than vaccination. “Smallpox has ceased to be the scourge it once was,” Williams said, in a clear reference to variola minor, “and there is a growing tendency to resort to sanitation and isolation rather than vaccination.” Painting Massachusetts as an outlier state, the brief said only eleven of the nation's forty-four states had compulsory vaccination laws, while only thirteen excluded unvaccinated children from the public schools. While technically correct, this claim glossed over the important fact that during the epidemics many American communities had ordered vaccination at will, under their local police powers. Williams noted the passage of noncompulsion laws in Utah, West Virginia, and Minnesota, and cited Governor La Follette's veto of a compulsion bill in Wisconsin, quoting his statement that in other states such laws “have resulted in riots and strife which have outlived the epidemic.” And in his discussion of the state vaccination cases, Williams called special attention to
State v. Hay
. Placing America's vaccination controversy in a global context, the brief applauded Parliament's 1898 conscientious objector clause and reminded the justices that antivaccination riots had rocked Brazil as recently as November 1904.
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The final words of Jacobson's brief to the Supreme Court paid tribute to the post–Civil War constitutional amendments, particularly the Fourteenth, adopted the year before young Henning sailed to America with his family. Like the Thirteenth and Fifteenth Amendments, the Fourteenth—with its promises of equal protection and due process of law to all within the nation's domain—guaranteed “the freedom of the African race and the security and perpetuation of that freedom.” In the decades since Reconstruction, the juggernaut of industrial capitalism and the rise of the social question in the United States had prompted the courts to read expansive new freedoms into those clauses. And so Jacobson's cause posed the question: did not the liberty protected by the Fourteenth Amendment embrace the right of a free man to control his own body and health? “As the Fourteenth Amendment has so often been appealed to for the protection of property,” Williams concluded, “this plaintiff appeals to it with confidence for the protection of his freedom.”
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T
he Supreme Court handed down its decision in
Jacobson v. Massachusetts
on February 20, 1905. Associate Justice John Marshall Harlan, the Court's longest-serving justice, delivered the opinion for the 7 to 2 majority. Harlan was an interesting choice for the assignment. One of the Court's more contrarian members, he was perhaps best known for his dissents. He also hailed from Kentucky—one of the states hardest hit by the smallpox epidemics.

At seventy-one, Justice Harlan still cut an imposing figure. A former slaveholder, he had served as a colonel with the Kentucky Volunteers, on the Union side, during the Civil War. Justice Holmes, who didn't like Harlan much, called him “the last of the tobacco-spitting judges.” Justice Brewer said of Harlan, “He goes to bed every night with one hand on the Constitution and the other on the Bible, and so sleeps the sweet sleep of justice and righteousness.”
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During an era when justices still read their opinions from the bench, Harlan preferred to deliver his opinions extemporaneously, like a good sermon. In his long judicial career, he had unexpectedly emerged as the Court's conscience on civil rights. When the Court announced the doctrine of “separate but equal” in
Plessy v. Ferguson
(1896), giving constitutional sanction to Jim Crow apartheid in the South, the man who had once opposed the Thirteenth Amendment because it invaded states' rights issued a thundering dissent: “The Constitution is colorblind, and neither knows nor tolerates classes among citizens.” One of the Court's more progressive members, he championed the right of the federal government to break up business trusts, and he often bristled at laissez-faire arguments dressed up in the language of substantive due process. Recently, Justice Harlan had faced down the army of lawyers representing a group of railroad barons and financiers that included James J. Hill and J. Pierpont Morgan, as he delivered the Court's decision to allow the Roosevelt administration to dissolve their trust, the Northern Securities Company. “Liberty of contract,” Harlan proclaimed, “does not imply liberty in a corporation or individuals to defy the national will, when legally expressed.”
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