The conservative Supreme Court that embraced vaccine mandates


The current US Supreme Court ruling on vaccine mandates extends back to a pandemic that had long ravaged our country. A public health emergency erupted in Boston as smallpox infections mushroomed beyond the control of other public health measures at the time. This took place at the start of the twentieth century; Boston was one of the US’s primary financial centers and the outbreak threatened the national economy.

With echoes that extend to today, people at the time questioned the science behind the smallpox vaccine and resistance to an immunization mandate coalesced around a court case that was eventually argued before the US Supreme Court. In a 7-2 ruling, the Fuller Court (named for Chief Justice Melville Fuller) decided that the state mandate did not violate the 14th amendment and that the state did have the right to mandate vaccination to protect the health of the public. The plaintiff, a pastor who had immigrated from Sweden, was forced to pay the $5 fine — approximately $150 if it was levied today. 

And that was how the last major smallpox outbreak in the country concluded.

We are again in the grip of a pandemic, 116 years later, with more infectious variants having emerged in its second year. The latest surge in cases has ebbed, but not completely — and the numbers have started to slowly increase again.

Vaccine science has of course grown by leaps and bounds; we have not one but three safe and effective vaccines. The government has made them available, free of charge to all who are eligible, and we are again caught in a national debate about the legality of vaccine mandates. Debates revolve around personal freedom versus our responsibilities to each other as citizens, and about the duty of government to protect the public’s health.

With this history in mind, it may be worth quoting from the 1905 Supreme Court decision: 

“The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.”

The Fuller Court was not known for decisions embraced by progressives today. Perhaps the most prominent decision, in Plessy v Ferguson, upheld the system of racial segregation in the South. Other decisions eliminated the federal income tax and struck down regulations on working conditions. Yet in Jacobson v Massachusetts, the Fuller Court appreciated the legality of vaccine mandates — and their importance.

A critical principle in dealing with highly infectious viruses like smallpox and SARS-CoV-2, the virus that causes COVID-19, is that high immunization coverage is important to achieving epidemic control. As long as a virus has thousands (or in the current U.S. case, tens of millions) of susceptible people to infect, an epidemic will continue, and the risk of even more infectious variants emerging persists. Hospitals will continue to fill with the unvaccinated, as we are seeing in many low-vaccine-coverage communities. ICU beds will become scarce, as they now are in some states. And more Americans will continue to suffer, with more dying preventable deaths, currently at some 1,100 of us a day.

Moreover, the economic impacts of the ongoing epidemic on businesses throughout the country remain unprecedented and severe. While non-medical prevention, like indoor mask wearing and social distancing remain important, increasing vaccine coverage, and doing so quickly, is our only way as a country to prevent another winter of suffering and loss.

As the Supreme Court made clear in that 1905 decision, the liberty we enjoy in this country does not give us the right to act to the detriment of others in all circumstances. One of those circumstances is when personal decisions threaten the health and well-being of others. COVID-19, like smallpox, is colorless, invisible, and even more contagious. Talking, eating, singing, and shouting are major modes of transmission; one cannot identify who is infected, and one cannot discern who to avoid. What is needed for control is essentially universal vaccination and masking, and even then, the results will not likely provide complete eradication. But our society and economy will be able to fully recover. 

COVID-19 has already claimed over 760,000 American lives. The COVID-19 vaccines, shown to be highly effective and remarkably safe, relied on existing technologies that were harnessed and tested as soon as the federal government provided the necessary funding. One year later, we can see their effectiveness in how the virus has hit unvaccinated regions hardest.

Vaccine mandates are fully in-line with our best science, and our best hope to control the delta and subsequent variants. It is time to recognize our mutual obligations to protect our children, our elderly, and our neighbors from disease — and accept the emphasis that our government places on this obligation.

Chris Beyrer MD, MPH, Johns Hopkins Bloomberg School of Public Health

Larry Corey, MD, University of Washington

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