Pox_ An American History - Michael Willrich [164]
In the end, the people of Bedford dropped the matter and moved on. But they’d had a point. Both Durgin and Pfeiffer were true believers who had played Russian roulette with the public health. A jury of their peers, though, might have discerned a difference of culpability between the two men. Pfeiffer believed that vaccination was a sham and that a man of his constitution, psychic power, and cleanly habits was impervious to small-pox; he had, as The New York Times conceded, shown the “courage of his convictions,” however wrongheaded those convictions might have been. Durgin, a sworn government officer of the public health, had staged a public event whereby an unvaccinated man was exposed to smallpox; he had done so with full knowledge of the risks to that man and the general public. Pfeiffer may have been misguided. But Durgin was reckless.
EIGHT
SPEAKING LAW TO POWER
It is one of the more ennobling characteristics of the American system of government that the greatest of constitutional questions may arise in the most humble of places. A coach on a Louisiana train. An elementary school in Topeka, Kansas. A pool hall in Panama City, Florida. The seminal case in modern American public health law began at the threshold of a tenement house apartment in a neighborhood filled with wage earners and immigrants.1
On March 15, 1902, Dr. E. Edwin Spencer, chairman of the Cambridge, Massachusetts, Board of Health, called upon Pastor Henning Jacobson in his apartment at 95 Pine Street, in the neighborhood of Cambridgeport, about a mile east of Harvard Yard. A man little known beyond his Swedish congregation at the nearby Augustana Lutheran Church, Jacobson lived with his wife, Hattie, and their sons Fritz, David, and Jacob. Spencer had practiced medicine in Cambridge for thirty years and headed the board of health for almost ten of them. Spencer informed Jacobson of the board’s “vote” declaring smallpox prevalent in the city and ordering all inhabitants who had not been vaccinated within the past five years to submit to the procedure at once or incur a $5 fine, as provided for by the Massachusetts compulsory vaccination law. The penalty was not trivial: the average weekly wage of an American factory worker was about $13, and it is unlikely that an immigrant minister earned much more than that. Jacobson, forty-five, had not been vaccinated since childhood. Spencer offered to vaccinate him “then and there,” free of charge. But Jacobson “absolutely refused.” He was later summoned to court, tried, and found guilty of “the crime of refusing vaccination.” Rather than pay his fine, Jacobson appealed.2
During the next three years, Pastor Jacobson would pursue his cause all the way to the U.S. Supreme Court, prompting the Court’s first ruling on the subject of compulsory vaccination. In the words of Justice John Marshall Harlan, who wrote the opinion for the majority in Jacobson v. Massachusetts, the minister claimed that “a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.” More than a century on, it is difficult to appreciate just how radical that claim must have sounded when first uttered. Henning Jacobson was asking the nation’s highest court to contemplate the true extent of constitutional liberty in the United States.3
The Jacobson case marked the end of the great wave of smallpox epidemics that had swept across the United States at the turn of the century. It also signaled the beginning of the long struggle to reconcile twentieth-century Americans’ ever-increasing expectations of personal liberty with the far-reaching administrative power needed to govern a modern, urban-industrial society.
A man in his prime, with deep-set eyes and