MARY REICHARD, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 22nd of February, 2021. Good morning, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. Well, it’s time for Legal Docket. Mary, you have unpacked each and every oral argument for us this Supreme Court term. And — you are caught up.
REICHARD: We are caught up. So this week my co-host on the Legal Docket podcast, Jenny Rough, is here with me for a Special Report. I’d say the topic is a timely one: vaccine mandates. Hi, Jenny!
JENNY ROUGH, CORRESPONDENT: Hi, Mary! Great to be here.
With the new COVID-19 vaccine making the rounds, you and I are going to dive into mandates. Those legal requirements of the government for us citizens to do something.
REICHARD: Timely, indeed. And just so you know, today’s conversation is taken from a special episode of the Legal Docket podcast that you can hear this weekend.
ROUGH: OK. Let’s begin by listening to how vaccines mandates are already starting to come down:
PAPENFUSE: We believe the vaccine is safe, effective, the best means of fighting the virus.
That’s Eric Papenfuse. Mayor of Harrisburg, Pennsylvania.
REICHARD: In January, he signed an executive order mandating all city employees to get a COVID-19 vaccine.
PAPENFUSE: It’s required and it’s a condition of employment so it could potentially lead to termination.
It’s one thing to encourage people to get vaccinated; it’s quite another to mandate it.
We should point out that a constitutional analysis in general does not apply to private actors. So our focus is on state and local laws.
ROUGH: To dig into this, let’s take a trip back to the early 1900s. The city of Cambridge, Massachusetts, had a problem on its hands.
REICHARD: A problem on its hands and arms and legs and face and torso.
ROUGH: A smallpox outbreak. 1,596 confirmed cases around Boston in a three-year period. 270 people died.
REICHARD: In response, the health board of Cambridge decided to invoke a state law that required everyone in the town to get a smallpox vaccine.
Not everyone was happy with that. A man named Henning Jacobson challenged the law.
ROUGH: Jacobson was a pastor. He’d received a smallpox vaccination as a child in Sweden. And he had a bad reaction. So he didn’t want to get another one.
Barry McDonald is a constitutional law professor at Pepperdine University. He fills in the story.
MCDONALD: Now years later as an adult in Cambridge he was saying, “You know, look. I shouldn’t have to be vaccinated. I had all these problems. And it violates my constitutional rights for the state of Massachusetts to require me to be vaccinated.”
REICHARD: In particular, his individual liberty right guaranteed by the due process clause.
MCDONALD: He said this liberty interest in my bodily integrity—
ROUGH: Let me interrupt here for a moment. Bodily integrity means to have autonomy over one’s own body. To be free from action against their body to which they don’t consent.
MCDONALD: He said this liberty interest in my bodily integrity and controlling what goes in my body, especially if it may be harmful to me, I have a constitutional right to refuse to be vaccinated.
REICHARD: The due process clause says, “No person shall be … deprived of life, liberty, or property without due process of law.”
That prohibition is in the U.S. Constitution twice.
In the Fifth Amendment, where the prohibition applies to the federal government.
ROUGH: And then very similar language in the Fourteenth Amendment, where it applies to state governments.
REICHARD: That’s what we’re talking about here.
ROUGH: Massachusetts law allowed a person to pay a $5 penalty instead of getting a vaccine.
REICHARD: But Jacobson did not want the vaccine or to pay the penalty.
So what happened? Once again, Barry McDonald.
MCDONALD: It went all the way up to the Supreme Court of the United States who in a 7-2 decision rejected Jacobson’s claim and essentially said that in situations like this the police power of the state to protect the public health, safety, and welfare of its people has to predominate.
ROUGH: Here’s a quote from the opinion.
AUDIO: “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.”
REICHARD: Think of seat belt laws. Seat belts restrain your body. They protect people from injury and protect the public from excessive medical costs. Or mask mandates. Designed to protect both you and others. For the common good.
ROUGH: Of course, vaccines do not go across your body or face. Vaccines go inside the physical body and induce an immune response.
REICHARD: Fast forward to 1922. Roughly 17 years after the Jacobson case, the Supreme Court considered the constitutionality of another vaccine law.
ROUGH: This one originated in San Antonio, Texas. The law said if parents wanted to send their kid to school, the child had to receive the smallpox vaccine. Rosalyn Zucht, an unvaccinated student, challenged the law.
MCDONALD: The court almost summarily rejected her claims, essentially saying, “Look, we’ve already been through all this in Jacobson.”
REICHARD: Even though the Zucht case is 100 years old and Jacobson is even older, they are still considered binding precedent for lower courts to follow.
ROUGH: For the common good. On one hand, the common good is — well, good! Love your neighbor as yourself. On the other hand, the common good can be used to justify troubling policy. Who decides the common good?
REICHARD: Nine men and women in black robes? Doctors in white coats? The individual who has to get the shot?
ROUGH: Jonathan Emord is an attorney who specializes in health law claims. Listen to what he has to say about the Jacobson decision.
EMORD: This created a very dangerous precedent that we later came to discover…
Why is it a dangerous precedent when the law protects the public from a transmissible disease, smallpox?
Five years after Zucht, the Supreme Court heard another case about bodily integrity. A case with sad and alarming facts.
EMORD: We have the Buck versus Bell decision. Based on Jacobson.
REICHARD: Carrie Buck lived in Virginia. She was in foster care when a relative of her foster parents raped her. She was 17 and got pregnant. Embarrassed at the pregnancy, her foster parents committed Buck to a mental institution. They claimed she was feeble-minded and promiscuous.
ROUGH: It gets worse. Virginia had recently passed a new law. Forced sterilization for the feeble-minded. The state wanted to cut her fallopian tubes.
REICHARD: For the common good—determined by the state. The state viewed her as unfit to bear children.
ROUGH: Yes, that was the rationale. Buck fought the law on constitutional grounds. Like Jacobson, she wanted autonomy over her body. She sued, saying cutting my fallopian tubes is a deprivation of my liberty. The case went all the way to the Supreme Court.
Justice Oliver Wendell Holmes, Jr. wrote the opinion.
EMORD: Using Jacobson as the basis, he then justified eugenics for sterilization of Carrie Buck. And then he said notoriously at the end of the decision, “The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes. Three generations of imbeciles is enough.”
ROUGH: Let’s back up. Why is the Supreme Court applying a reasonableness test to these laws? After all, a liberty violation is at stake.
EMORD: Ordinarily, we ask the state before it takes away liberty to prove that it has a compelling state interest, and that the means chosen are narrowly tailored to attain that interest.
REICHARD: Compelling state interest, narrowly tailored. Otherwise known as the strict security test. The highest standard of judicial review.
EMORD: But in this context, that test is not applied at all.
There are a couple reasons the court did not apply strict scrutiny in the 1905 Jacobson case. First and most obviously, the court hadn’t developed the test yet.
ROUGH: Right. That came from a case in 1942. And it only applies when a law violates a person’s fundamental rights.
So that raises a question: Is the refusal to get a vaccine a fundamental right if it’s based on a bodily integrity argument? The answer is a bit fuzzy. The court hasn’t addressed that question under modern liberty due process rules.
REICHARD: But what about a person who claims the mandate conflicts with his or her religious beliefs and practices? A challenge under the First Amendment? Would strict scrutiny apply there?
ROUGH: That is complicated too, of course! McDonald explains:
MCDONALD: If you were to raise that claim back in the 1980s, for example, you would have a pretty strong claim. Then the court would say, well that’s a serious issue and we’re going to apply strict scrutiny.
But in 1990, along came a case called Employment Division versus Smith.
MCDONALD: You had some individuals that were seeking a religious exemption to smoke peyote, seeking a religious exemption from Oregon drug laws.
REICHARD: In the Smith case, the court changed course. In a 5-4 decision, the court held—
MCONDALD: To allow a person to have a religious exemption to a secular law that is designed to promote the public good essentially makes that person a law unto themselves, and it has the potential to create chaos. We’re going to overrule all these earlier decisions and we’re no longer going to sort of scrutinize denials of religious exemptions as a free exercise of religion matter.
ROUGH: The court went on to say for a religious exemption, Congress is the place to go for a federal issue. Or the state legislature if it’s a state issue.
REICHARD: A case pending before the court right now may overturn Smith. We’ll cover that case in Season 2 of the Legal Docket podcast.
ROUGH: For now, federal and state statutes determine religious exemptions to state or local vaccine laws.
REICHARD: When it comes to health and medical treatment, informed consent is important. Here’s Emord’s take—
EMORD: The role of the state becomes simple. It educates. It provides information, it helps in disseminating information. And that’s the answer.
ROUGH: It’s been about a year since the pandemic began. Along with the mask mandates and mandates shuttering businesses. That meant lawsuits. A challenge to a mask mandate in Wisconsin made its way to the state supreme court, for example. And the Michigan supreme court shut down the governor’s restrictions. Add vaccine mandates in the mix, and we’ve likely only just begun to see these constitutional challenges.
And that’s it for this week’s Legal Docket. I’m Jenny Rough.
REICHARD: And I’m Mary Reichard. Jenny, thanks for doing the heavy lifting this week!
ROUGH: Anytime — my pleasure.