Last week Reuters reported U.S. Supreme Court Justice Stephen Breyer turned away a religious challenge to a requirement that healthcare workers in Maine be vaccinated against
COVID-19. Breyer's order is the third time the Supreme Court has rejected an attempt to challenge a COVID-19 vaccine mandate. Justice Sonia Sotomayor this month refused to block New York City's requirement that public school teachers and employees be vaccinated. Justice Amy Coney Barrett in August denied a bid by Indiana University students to block that school's vaccination mandate.
While the issues are slightly different in each case and the Justices did not cite any specific cases in their orders denying the request for injunctive relief there are two early 20th century cases upon which proponents of forced vaccination seem to be relying.
As the National Constitution Center explained in an excellent article by Scott Bomboy:
In 1905, the Supreme Court ruled in Jacobson vs. Massachusetts that under a state law local health authorities could compel adults to receive the smallpox vaccine. Henning Jacobson refused a free smallpox vaccination that was mandated by the city of Cambridge; he was fined five dollars as a result. Jacobson argued the vaccination law violated his 14th Amendment due process rights.
Justice John Marshall Harlan, writing for court’s majority, concluded that states under their general police powers had the ability to enact vaccine laws to protect citizens. Police powers allow a state to pass laws to protect the health, safety, and general welfare of the public. “It is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health,” Harlan wrote.
The second decision, Zucht v. King in 1922, arrived at a similar conclusion. San Antonio, Texas, excluded students from public and private schools who were not vaccinated for smallpox. This included the challenger in the case, Rosalyn Zucht. Her attorneys argued the vaccine policy violated Zucht’s 14th Amendment due process rights. Justice Louis Brandeis wrote in the Court’s decision that “long before this suit was instituted, Jacobson v. Massachusetts, had settled that it is within the police power of a state to provide for compulsory vaccination.”
According to the Congressional Research Service’s most-recent analysis, the general principles in Jacobson and Zucht form the basis for modern vaccine mandate policies, even though the Court’s interpretations of the 14th Amendment have changed since 1922.
Indeed, much has changed in the Court’s interpretation of the 14th Amendment and many other areas of law that might impact whether a COVID vaccine mandate is constitutional.
And how does the practice of forced vaccination square with the Court’s reasoning in Roe v Wade?
In Griswold v. Connecticut, Justice William O. Douglas famously said that a general right to privacy is found in the “penumbras,” or zones, created by the specific guarantees of several amendments in the Bill of Rights, including the First, Third, Fourth, and Ninth Amendments.
“The First Amendment has a penumbra where privacy is protected from governmental intrusion,” the Court said. “While it is not expressly included in the First Amendment, its existence is necessary in making the express guarantees fully meaningful.”
And as Laura Temme, Esq. wrote in an article for FindLaw.com reviewed by Ally Marshall, Esq., “The constitutional right to privacy comes from the Due Process Clause of the Fourteenth Amendment. The Due Process Clause does not explicitly state that Americans have a right to privacy. However, the Supreme Court has recognized such a right going all the way back to 1891. Just one year before Roe, the Supreme Court held that ‘in a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed’.”
"While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390, 399 . In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed. See, e. g., Bolling v. Sharpe, 347 U.S. 497, 499 -500; Stanley v. Illinois, 405 U.S. 645 . [408 U.S. 564, 573]
Indiana, where Justice Coney Barrett used to teach law at The University of Notre Dame, adopted a eugenic sterilization law, America's first in 1907. And as NPR reported, in 1927, the U.S. Supreme Court decided, by a vote of 8 to 1, to uphold a state's right to forcibly sterilize a person considered unfit to procreate. The case, known as Buck v. Bell, centered on a young woman named Carrie Buck, whom the state of Virginia had deemed to be "feebleminded."
The Supreme Court has never held that forced sterilization is unconstitutional. We wonder if the same rationale used in Jacobson and Zucht could be used to justify forced sterilization, or even, as has been practiced in Red China, forced abortion?
A lot has changed since the early 20th century and the days of forced sterilization and prohibitions on contraception and abortion, so, if Roe v. Wade and Griswold v. Connecticut remain good law, how can forced vaccination stand the privacy tests set forth in the decisions of those two cases? And if the right to bodily privacy that would protect one from forced vaccination does not exist, and one cannot refuse to be vaccinated based on the exercise of that right, how can Roe remain good law? And what would prevent a state from engaging in forced sterilization or abortion under the same public health theory propounded in Jacobson and Zucht?
It seems clear to us that under the reasoning of Roe v. Wade and Griswold v. Connecticut either Roe v. Wade can stand or forced vaccination can stand, but unless the law is merely the personal preference of a majority of the Supreme Court, both cannot stand.
U.S. Supreme Court
Justice Stephen Breyer
Roe v. Wade
Justice Sonia Sotomayor
Justice Amy Coney Barrett
Jacobson vs. Massachusetts
National Constitution Center
Zucht v. King
Right to privacy
Griswold v. Connecticut