Every school boy and school girl knows the preamble to the U.S. Constotution:
“We the People of the United States … and secure the Blessings of Liberty to Ourselves and our Posterity”
On that phrase, Henning Jacobson largely based his challenge to the smallpox vaccination in 1904. The state of Massachussetts imposed a smallpox vaccine requirement on every resident. If the residents refused the vaccine, they would incur a $5 fine. Smallpox had been the scourge of America and Europe for decades. But, by 1904, it was common knowledge that the vaccine would save your life. Rev. Jacobson, an immigrant from Sweden, had taken the smallpox vaccine as a small boy in his native country. Ever since, he had suffered a debilitating rash. His son also resisted the vaccine until it was required of him by his employer. His son then had to carry his arm in a sling for six months after the shot. The Jacobsons had firm evidence that they would suffer harm if they took the vaccine. Rev. Henning Jacobson insisted the state was taking away his right to medical liberty without due process.
Justice John Marshall Harlan, one of the great jurists, wrote a 7-2 decision affirming that a well-ordered society may require its members to take a vaccine. The Supreme Court, the judge pointed out, had often affirmed that persons and property are subject to all sorts of restraints and burdens to secure the general health, comfort and prosperity of the state. “Even liberty itself, the greatest of all rights is not unrestricted license to act according to one’s own will. In the face of great danger, a state may indeed impose restraints on one’s liberty.”
An American traveler arriving at one of America’s ports on a ship that saw some great fever could be quarantined against his will, noted the court. This traveler could be held until the ship could be inspected or until the danger to the community had been abated.
“. . . in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
Justice Harlan is saying the rights of the individual may indeed me trumped by rights of the community when the community is pressed by great danger.
Jacobson made some of the same arguments that we hear today, that he had freedom to decide his own medical needs. He also argued that the smallpox vaccine was said to actually spread the disease or that it made persons ill. But, the court was not impressed.
“But 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.”
See the decision in Jacobson v Massachusetts, 197 US 11 (1905) here.