Pox_ An American History - Michael Willrich [179]
Duffield lost his case. The Pennsylvania Supreme Court affirmed the broad power of the school board to adopt “reasonable health regulations for the benefit of their pupils and the general public.” The court insisted that no one had compelled Andrew Duffield to vaccinate his son; the board claimed only the right to exclude unvaccinated children. Conceding that “medical men differ” about the effectiveness of vaccination, the court concluded that the board’s action reflected “the present state of medical knowledge.” The board had acted “in the utmost good faith,” at a time when smallpox actually threatened Williamsport.67
That same winter, the U.S. Supreme Court upheld the right of New York to enact legislation protecting its fisheries. In the decision, the Court added, for the first time, a new example to the long list of government actions that state appellate courts had found permissible under the police power: “the compulsory vaccination of children.” The language was what lawyers call “dicta”; it did not amount to a constitutional holding affirming compulsory vaccination of schoolchildren or anyone else. But the casual addition of compulsory vaccination to a litany that included “the regulation of railways” and “the restraint of vagrants” suggested the Court saw no problem with it.68
In the absence of an actual Supreme Court ruling, however, the outcomes of the school vaccination cases varied from state to state, fostering a degree of uncertainty that encouraged more litigation. As Pickering and Ballard could plainly see from the state court reports in their libraries, the general trend in the case law since Duffield was to uphold the power of legislatures, health boards, and school boards to require vaccination for admission to the public schools. Parents argued that vaccination was a positive right that the states could not deny (especially to the children of taxpayers). But the courts responded with a very parental-sounding lesson: a public education was a privilege, not a right, and when the state granted a privilege, it had the authority to dictate the conditions under which that privilege might be enjoyed. As Hugh Bancroft argued in his briefs for the Commonwealth of Massachusetts in the Pear and Jacobson cases, the schools cases represented a solid line of precedents supporting compulsory vaccination. But the briefs contained a few surprises. Vaccination plaintiffs had won some major concessions from the courts.69
Wisconsin led the way with an 1897 ruling. The state board of health had ordered that no child be admitted to any school in the state without a certificate of vaccination, signed by a “reputable physician.” In covering private, parochial, and public schools, the measure was exceptionally broad. The board of education of Beloit ordered principals and teachers to enforce the provision. At the time, only a few cases of smallpox existed in the entire state, and Beloit had none. A city resident named E. J. Adams, a Christian Scientist, refused to allow his three schoolchildren to be vaccinated, stating his belief that “the laws of God permit no such operation.” The children were expelled. Adams went to the Rock County Circuit Court and secured a peremptory writ ordering the school board to reinstate his children. The era’s record of vaccination litigation was filled with such local victories, but they often fell on appeal. But Adams won again at the state level, sparking a minor sensation in the press.70
Clearly, for Adams, his case raised a question of religious liberty. But his legal team, led by a prominent Wisconsin Republican named Ogden H. Fethers, assaulted the board of health’s vaccination order on different grounds.