Coronavirus vaccine refusniks are treading on thin ice in America, constitutionally speaking. And have been for 116 years.
An influential 1905 U.S. Supreme Court ruling — Jacobson v Massachusetts — held that government and private businesses and institutions are constitutionally entitled to require vaccinations of employees and others accessing their services.
Massachusetts’ law requiring vaccination, the heart of Jacobson v Massachusetts, was codified at the turn of the 20th century to combat outbreaks of the dreaded smallpox virus.
The court ruled that the state of Massachusetts “acted constitutionally within its police powers to pass a law to protect the health and safety of the public,” Middle Tennessee State University’s Free Speech Center explained on its website.
In an opinion, Justice John Marshall Harlan I stated:
“According to settled principles, the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”
Unfortunately, the 1905 ruling unsurprisingly is being mis-used today by the Christian Right, which disingenuously — and successfully — argued in 2020 that, ostensibly to keep from distracting doctors from fighting Covid-19 (as if conservative Christians have shown any interest in the virus except to poo-poo it), they should be prohibited from performing legal abortions during the pandemic.
In the interest of public health, you see.
The upshot was a U.S. appeals court ruling, ignoring the Roe v Wade precedent legalizing abortion in 1973, held Texas could prevent physicians from performing abortions because of the Covid-19 pandemic. Jurists used Jacobson v Massachusetts’ “public-health” guideline as a basis for their latter-day abortion suppression decision.
This is how religion breaches the “wall of separation” — Thomas Jefferson’s words — between church and state.
However, it’s important to note on balance that justices in the 1905 decision “warned against ‘arbitrary’ or ‘oppressive’ regulation and expressly connected mandatory vaccination to ending the spread of smallpox,” CNN reported in 2020.
This new decision is nothing if not “arbitrary” and “oppressive,” as it disingenuously aims to “help” women while doing virtually nothing to eradicate Covid.
I’m also thinking of the 1905 decision this week after reading a post by a progressive Christian blogger in which he, reasonably, railed against the immorality of supposed Christians fighting vaccinations and mask mandates on religious-rights grounds.
“Apparently, there is no legal requirement for such entities that mandate vaccination also include an except clause for religion. Moreover, how can such a thing be if one of the main purposes of most religions, including Christianity, is for its practitioners to do good to their fellow human beings. It is doing just the opposite, doing evil, to fellow human beings to be unvaccinated for COVID and thereby endangering peoples’ lives with this most horrendous and deadly coronavirus that has in 18 months killed over four million people worldwide, with over 600,000 of them being Americans. Therefore, I think those entities that adopt such vaccination mandates should not include an exemption for religion.”
The eponymous blogger, Kermit Zarley, referenced a 2020 circuit court decision upholding Indiana University’s Covid-19 vaccination mandate for students, faculty and staff.
“There can’t be a constitutional problem with vaccinations against SARS-CoV-2,” wrote the circuit panel of three of Republican-nominated judges, who incorporating the legal rationale of Jacobson v Massachusetts.
At the time, 500 American colleges and universities had mandated vaccinations for Covid, according to a report in The Hill.
For a deeper dive into the intricacies of legal opinion regarding vaccine mandates, check out this informative post on FactCheck online.
But, in summary, I think Zarley has the right idea — but not just for Christians. Anyone who cares about their fellow human should be bullish on vaccines, which provably save lives and cancel unnecessary suffering. To oppose them is not only un-Christian but un-American.
Saying you’re afraid to get a shot or wear a mask that virtually every top public-health professional in the world insists are safe and enormously effective, but aren’t perfect (as nothing is), is like refusing to go outside because you might be struck by lightning.
It’s good to know there are laws that actually rationally limit freedoms to stop people from doing what is unequivocally the wrong thing and thereby endanger the rest of us.
As they say, the freedom of your fist ends at my face.
Feature image by Jernej Furman CC-BY 2.0