His case made its way to the Supreme Court, which decided in Massachusetts’ favor, declaring in a 7-2 decision that there are constraints on personal liberty “to which every person is necessarily subject for the common good.” Although this case has been cited, and understandably so, by vaccine proponents today, I believe the ruling is both narrower and broader than most people realize. It is narrower in that it is unclear, in fact, that Jacobson blessed any measure more coercive than a modest fine.
Applied to Biden’s mandate, Jacobson would probably permit, for example, the requirement that employees at companies of 100 people or more either receive the vaccine or receive weekly testing. But as American lawmakers rely increasingly upon sticks instead of carrots to encourage mandates, Jacobson fades into the background. This is especially true given the development of legal doctrine between 1905 and today…
Two related threads of legal doctrine that have evolved in the past 116 years undercut Jacobson’s rationale. The first is the application of the Bill of Rights to the states. For much of the nation’s history, the Bill of Rights was considered only applicable to the federal government; only a few clauses had been applied to the states when Jacobson was decided. In other words, to the extent that a vaccine mandate raises questions relating to the free exercise of religion, or other Bill of Rights-related questions, Jacobson shouldn’t control the outcome. At the very least, the question has never been squarely presented to the court.
The more relevant development is the Supreme Court’s recognition that an individual has a constitutionally protected right to refuse medical treatment. Oddly enough, most decisions in this line of cases cite Jacobson as the foundation for that right. Thus, in Washington v. Harper the court recognized that prisoners retained “a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs.”
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