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Plagues in the Nation: How Epidemics Shaped America

Polly J. Price 

As confidence in vaccination for smallpox grew in the nineteenth century, local, state, and even federal authorities mandated vaccines and financed them at least partially. Some cities required all of their residents to be vaccinated when smallpox appeared, and legislatures authorized school boards to require vaccination of students. Employers in mills and factories would purchase vaccine for employees, as did slave owners on large plantations.

In Georgia, the state legislature authorized cities and counties in the state to order compulsory vaccination of all residents, “in the event the health officers or the proper authorities think it advisable,” to prevent the spread of smallpox. The Atlanta city council, confronting a series of smallpox outbreaks in the 1880s, made vaccination compulsory for anyone over the age of fifteen. The penalty for refusal was up to $500 or thirty days in jail. A second refusal merited the same penalty. “The practical result,” a journalist noted, “is submit to vaccination or stay in jail.” The ordinance applied to “any person, black or white,” but whites could choose to remain in jail until the threat passed rather than be vaccinated. Black residents who refused were subject to “brute force”— according to an observer, “A stout Negro man . . . had to be held by main strength while the physician vaccinated him.” Whether forced vaccination of Blacks still occurred during a deadly outbreak in 1897 is not clear, but Mayor C. A. Collier saw to it that policemen accompanied the hundred physicians who canvassed the entire city “to see that the doctors are protected and to aid in the work of vaccinating.” 

That same year, the Columbus city council ordered compulsory vaccination of every resident over the age of two, unless they could produce a doctor’s certificate that they had been recently vaccinated, were immune, or were in such poor health that vaccination would be dangerous. In September 1897, Columbus officials authorized a “house to house” vaccination. George W. Morris and two other men refused; they were charged in the city recorder’s court with violation of a municipal ordinance and ordered to pay a fine.

Morris appealed the fine, taking his case to the Georgia Supreme Court. City officials prevailed. Justice Andrew J. Cobb, writing for the court, declared the “right to enforce vaccination is derived from necessity.” The municipal authorities had reasonable grounds for fearing an imminent epidemic of smallpox because it was prevalent in nearby Birmingham, Alabama. For this reason, mandatory vaccination did not violate federal or state constitutional rights.

Justice Cobb believed his court was the first to consider the constitutionality of mandatory vaccination laws, noting that “At the present time a great majority of the United States have such laws.” Citizens who opposed vaccination, Cobb explained, should seek a solution through the political process, not the courts:

"With the wisdom or policy of vaccination, the courts have nothing to do. The legislature has seen fit to adopt the opinion of those scientists who insist that it is efficacious, and this is conclusive upon us. Under our system of government, the remedy of the people, in that class of cases where the courts are not authorized to interfere, is in the ballot box."

Cobb added that judges have no authority to declare a law void “merely because it does not measure up to their ideas of abstract justice.” The “natural right” to life, liberty, and the pursuit of happiness “is not an absolute right.” The individual must “sacrifice his particular interest or desires, if the sacrifice is a necessary one, in order that organized society as a whole shall be benefited.” Danger to public health, Cobb wrote, “has always been regarded as a sufficient ground for the exercise of police power in restraint of a person’s liberty.” The Georgia court’s decision came just seven years before the United States Supreme Court would consider the same question, in a case known as Jacobson v. Massachusetts. Boston and surrounding cities suffered a series of smallpox outbreaks from 1901 to 1903. When the Cambridge Board of Health saw a dramatic increase in cases, it ordered all residents to be vaccinated or pay a five-dollar fine. Henning Jacobson refused, claiming that he had had an adverse reaction to an earlier vaccination. He was fined, and over the next two years appealed his case all the way to the US Supreme Court. 

With two justices dissenting, the Supreme Court affirmed the right of city officials to enforce a smallpox vaccination law in an emergency. Writing for the court, Justice John Harlan noted that the court decades earlier had “distinctly recognized the authority of a state to enact quarantine laws and health laws of every description.” Principles of “self-defense” and “paramount necessity,” Harlan wrote, give a community “the right to protect itself against an epidemic of disease which threatens the safety of its members.” It was appropriate for the legislature to lodge the authority “to determine for all what ought to be done in such an emergency,” and “surely it was appropriate for the legislature to refer that question, in the first instance, to a board of health composed of persons residing in the locality affected.”

The Massachusetts Anti-Compulsory Vaccination Society backed Henning Jacobson’s four-year odyssey through the judicial system to the nation’s highest court. In 1902, a jury convicted Jacobson for refusing to comply with the vaccination order, and the following year the Massachusetts Supreme Judicial Court affirmed the jury’s verdict. Chief justice Marcus Perrin Knowlton portrayed the penalty for refusal — five dollars — as relatively trivial: “If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force.” The “worst that could happen to him,” Knowlton wrote, “would be payment of the penalty of $5.” The Georgia Supreme Court had said nothing about vaccination by force in 1898, even though news accounts reported Blacks had been forcibly vaccinated. Penalties for whites, on paper at least, were not trivial either. The $500 fine in Atlanta likely was never collected, but the prospect of consecutive thirty-day jail terms supplied all the compulsion needed.

But the US Supreme Court had only the Cambridge health order before it, with its relatively light penalties — not the draconian measures in Atlanta and elsewhere in the nation. In that context, Jacobson v. Massachusetts affirmed the basic power of government to safeguard the public’s health in an epidemic. Constitutional doctrine changed profoundly over the ensuing century, yet Jacobson remained the preeminent authority, the final word for judicial review, for the epidemics to follow. The US Supreme Court would not revisit it again until a novel coronavirus, COVID-19, upended American life in 2020. 

—from Plagues in the Nation: How Epidemics Shaped America (Beacon Press 2022)