Pox_ An American History - Michael Willrich [178]
Some legal experts argued that compulsory vaccination was far less intrusive than quarantine. Under quarantine, a smallpox “suspect” could be detained by the government for two full weeks. The vaccination operation lasted but a few minutes. “If the protection of public health allows quarantine,” Freund mused, “it is difficult to see why it should not justify compulsory vaccination.”62
All of this made perfect sense from a conventional due process perspective, which saw seizure of a man’s body or property, in the absence of public necessity and proper common law procedure, as an act of the purest tyranny. But for critics of compulsory vaccination (in Europe as well as the United States), any similarity to quarantine ended the moment lancet touched skin. One involved temporary detention of someone officials believed to have been exposed to contagion; the other entailed insertion of an animal virus into a presumably healthy human system. “There is a better way,” Ballard wrote in Jacobson’s brief. “In case of a quarantine of the unvaccinated, no risk or danger would ever be run to anybody’s health or life—and nobody’s feelings would ever be shocked or outraged by it.” What Freund and others saw as the lesser of two necessary evils, vaccination litigants and their lawyers regarded as the far greater invasion of personal liberty.63
The personal liberty claims made in the vaccination cases bore the impress of a changing legal culture, as Americans and their lawyers reached for—and expanded upon—the newly minted language of substantive due process. Lawyers representing vaccination litigants (if not always the litigants themselves) showed that they were well versed in the economic due process arguments that had made headway in recent years in the courts. They marshaled substantive due process onto a new terrain—from the field of contract and property to the domain of personal liberties and the body.
The doctrine of substantive due process became increasingly important in the vaccination cases. In the first case to reach a state supreme court, Abeel v. Clark (1890), Santa Cruz parents challenged California’s 1889 school vaccination law on the narrowest of technical grounds. The statute, they said, violated the state constitution because the law’s subject was not clearly expressed in its title and it was “not general in its scope” (it reached only public schoolchildren, not the general public). The court upheld the law as a reasonable exercise of police power.64
Four years later, Andrew Jackson Duffield’s suit against the Williamsport, Pennsylvania, School District made a far more expansive due process argument, signaling a new direction in the litigation. With smallpox “epidemic in many near by cities and towns,” the local school board ordered all pupils to show proof of vaccination. Duffield, a real estate dealer and local constable, went to the Lycoming County Common Pleas Court seeking a writ of mandamus—an order that would compel the school board to admit his unvaccinated son. The court refused. In a time of “imminent danger,” the court declared, school directors had the “right as well as the duty” to do “everything in their power” to prevent the spread of disease. The constable appealed.65
Duffield’s attorney got to work. William H. Spencer was a local lawyer who had gone to work in anthracite coal mines at the age of twelve. His brief to the Pennsylvania Supreme Court defined the police power in the narrow terms advocated by the conservative legal scholars Thomas Cooley and Christopher Tiedeman (whose treatises he cited). “The police power is grounded upon inevitable necessity—the necessity that all men are under of so exercising their own rights so as not to infringe upon the equal rights of others.” This was, of course, the common law sic utere tuo principle. But Cooley and Tiedeman had recast that venerable maxim in