Pox_ An American History - Michael Willrich [177]
At the turn of the century, ordinary Americans were just beginning to turn to the law to challenge the increasing reach of administrative power into areas of life to which we now attach the most fundamental of civil liberties: freedom of speech and belief, parental rights, and the right to bodily integrity. No public policy crystallized those inchoate concerns more powerfully than did compulsory vaccination. In the name of public health and safety, Freund acknowledged, the modern state had been “readily conceded more incisive powers than despotic governments would have dared to claim in former times.”58
Critics of the burgeoning interventionist state agreed. St. Louis’s Central Law Journal, a leading voice of conservative legal opinion, condemned compulsory vaccination as “one of the most serious and unwarrantable encroachments upon the personal liberty of the citizen that has been committed in recent years under the guise of the police power.”59
As Bancroft, Pickering, and Ballard researched the state of the art of police power jurisprudence for their briefs, they naturally paid particular attention to the recent proliferation of state court cases challenging compulsory vaccination. Remarkably, the legal issues involved were still novel. Vaccination laws had been on the books in Massachusetts and other states for decades. But the first legal challenge had not reached a state supreme court until 1890—at the very moment police power cases began to stream into the courts. Vaccination litigation escalated dramatically as smallpox spread at the turn of the century. The law remained unsettled. The Supreme Judicial Court had the opportunity to bring some muchneeded clarity to the subject.
So far, the American vaccination cases had taken several distinct forms. In the most common type, parents asked courts to order local school boards or principals to admit their “scarless” children. Unsurprisingly, in a legal culture that privileged men, most of the parents named in these cases were fathers. Some, like George R. Mathews of Kalamazoo, Michigan, were Christian Scientists, who opposed compulsory vaccination as an infringement of their “religious belief and scruples”; others, such as stenographer Frank D. Blue of Terre Haute, Indiana, were members of antivaccination societies; and others followed Michael Breen, a farmer from Lawrence County, Illinois, who demanded his rights as “a resident and taxpayer.” In another type of case, public schoolteachers, including women like Mary Helen Lyndall of the Philadelphia Girls’ High School, sued for the right to enter their workplaces unvaccinated. A third class of litigants—including the North Carolina merchant W. E. Hay and a Georgia factory worker named Morris—challenged their treatment under general vaccination orders, arguing that compulsory vaccination was a form of bodily assault.60
Given the long tradition of judicial deference to the police power, especially in the area of public health, it is remarkable that so many Americans could imagine that compulsory vaccination violated their rights. This unshakable belief arose from their sense that compulsory vaccination was unprecedented—a radical and especially dangerous form of governmental power, different in kind from all previous public health measures.
Prior to the Civil War, the paradigmatic compulsory health measure had been quarantine, a form of physical restraint that raised conventional due process questions: was the detention carried out in a lawful manner, following good common law procedures? Compulsory vaccination involved an invasive medical technology. It raised questions about the substance of personal liberty: could