- A 1905
Supreme Court ruling grants states the authority to issue vaccine mandates. - The decision was upheld nearly 20 years later in a case barring unvaccinated children from school.
- Experts say
Biden 's new vaccine rule is the most far-reaching one to come from the US government.
Republican leaders and vaccine skeptics railed against President Joe Biden on Thursday after he required COVID-19 vaccines for federal employees, contractors, and businesses with more than 100 employees, accusing the commander-in-chief of overstepping the government's authority.
But US history begs to differ.
It's not the country's first pandemic, and there's a strong tradition of vaccine mandates to quell diseases like smallpox and polio.
Brian Dean Abramson, an expert in vaccine law, told Insider that while vaccines rules aren't new, they usually come from the state, not the federal government. He said it was common in the 19th century for states and cities to require the smallpox vaccine.
"But it's been a very long time since we've had anything this far-reaching, and we've never had anything this far-reaching come from the federal government before," Abramson said.
The federal government has never attempted to issue a
One particular case occurred in 1904. A Massachusetts town gave its citizens a choice: take the smallpox vaccine or pay a $5 fine. Pastor Henning Jacobson refused to pay the fine, leading to a 7-2 Supreme Court decision in 1905 in favor of the state and the validity of state-issued vaccine mandates.
Associate Justice John Marshall Harlan wrote the majority opinion, ruling that Harlan's individual freedoms, such as not taking the vaccine nor paying the required fine, do not give him a free pass to restrict the liberty of others by allowing the virus to spread.
"There are manifold restraints to which every person is necessarily subject for the common good," Harlan wrote. "On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy."
The Supreme Court affirmed the decision in 1922, ruling it was well within the rights of public and private schools to exclude unvaccinated students. Associate Justice Louis Brandeis issued the majority ruling, citing the Jacobson decision.
"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," Brandeis wrote.
Unanswered questions in the Jacobson ruling could divide the courts
The landscape of the country has changed in the 116 years since the Jacobson ruling, presenting unanticipated challenges to the court's decision.
Abramson told Insider the Jacobson v. Massachusetts case could both help and hurt the validity of Biden's new mandate. He said the court's decision could be interpreted in two ways in 2021:
- The Supreme Court favors vaccine mandates from all levels of government
- The ruling never expressly grants the federal government the power to issue a vaccine mandate, only states and municipalities
He said there's also a "little bit of wiggle room" in the case that could grant larger exemptions for people with fears of sickness or injury from the virus. Abramson told Insider the pastor in the original case was worried about receiving the smallpox vaccine due to side effects previously experienced by him and his family members.
"Jacobson had fears about the negative effects of the vaccine but didn't really substantiate those fears," Abramson said. "If it were proven that someone actually would be seriously injured by a vaccine, then the outcome might be different."
He said the court never made that determination and the Biden Administration may need to factor in more leniency for medical exemptions.
"They left some room to say that if someone has a medical objection to vaccination and can demonstrate that harm would come to them, they might have a constitutional right to avoid vaccination," Abramson said.
GOP leaders are preparing to sue the Biden Administration
Republican governors across the country announced their plans Thursday night to fight the Biden Administration's new mandate in court: Georgia Gov. Brian Kemp said he would "pursue every legal option," Texas Gov. Greg Abbott said similarly, and South Dakota Gov. Kristi Noem made Biden a promise:
"See you in court," Noem said.
State leaders are not the only politicians jumping into the legal fray against the Biden Administration. Ronna McDaniel, the Republican National Committee chairwoman, said the RNC also plans to sue the administration when the mandate goes into effect on November 1.
-Ronna McDaniel (@GOPChairwoman) September 10, 2021
Biden said on Thursday he's undeterred by the efforts from GOP governors to stymie the administration's COVID-19 response.
"If these governors won't help us beat the pandemic, I'll use my power as president to get them out of the way," Biden said.
Erin Snodgrass contributed reporting.