Pox_ An American History - Michael Willrich [183]
The peddler sought $5,000 in damages for the “great indignity” of this experience, which had caused him “great agony of mind” and the loss of several months’ business, as the people of the area, knowing he had been exposed to smallpox, wanted nothing to do with him. Town officials did not dispute Levin’s version of events. As Chief Justice David Furches put it, no one denied Levin had “received heroic treatment and was damaged.” But he added, “it is not every damage that creates a cause of action.” Citing the principle of sovereign immunity, Furches said, “a municipal corporation can not be held liable in damages for the enforcement of a public law for the public good.”83
Levin was an unblinking affirmation of the police power, and Pickering and Ballard knew Bancroft would cite it. But as the attorneys noted in their own briefs for Pear and Jacobson, the decision was controversial. (The Central Law Journal had issued “a trumpet blast of indignation.”) Unlike Bancroft, they recounted the ugly facts of the case for the Massachusetts justices to mull over. No other state court decision had even indirectly approved of physical-force vaccination.84
And even the North Carolina court, in State v. Hay, had said some things that Pickering and Ballard recognized ought to strengthen Jacobson’s case. Perhaps owing to W.E. Hay’s status as a leading local merchant (rather than an itinerant peddler), the court had disliked the idea of a man being compelled to undergo vaccination against his doctor’s advice. The state court upheld the vaccination order, but as Pickering and Ballard noted, there was more to the case than a simple affirmation of the law. The court conceded that for some individuals, personal health conditions might make vaccination unsafe, providing “a sufficient excuse for noncompliance.” Even though the Burlington ordinance (like the Massachusetts vaccination law, at least as far as adults were concerned) provided no health exemptions, the court ruled that Hay ought to have the right to make his case for a health exception directly to a jury.85
Pickering and Ballard highlighted the concurring opinion in the same case. The opinion eloquently expressed the unease that many judges felt toward the extraordinary administrative power of public health officials. It happened to be written by Justice Robert M. Douglas, the son of the legendary Illinois senator Stephen A. Douglas. Justice Douglas went even further than the majority opinion in reading a health excuse into the law. “[T]here may be cases where vaccination, owing to certain exceptional conditions of health, may be dangerous or even fatal,” Douglas said. “We cannot suppose that the Legislature intended to enforce the rule under such cases.” If the letter of the law did not provide such an excuse, the courts would. After all, it was in the courts, Justice Douglas admonished, “where all of the rights of the citizen are determined and administered.” A court should not grant a public health officer “any presumption of professional infallibility. He must take his chances before the jury, like any other witness.”86
The North Carolina Supreme Court had articulated a novel principle of public health law that is now called “harm avoidance.” Ballard applauded Justice Douglas’s opinion. He wrote, “No better brief can be written, or better argument made” in support of Jacobson’s contention that the Massachusetts statute was unreasonable because it lacked a health exemption for adults. And the North Carolina court had also provided a precedent for the admissibility of precisely the sort of medical evidence that Jacobson had