Pox_ An American History - Michael Willrich [184]
And so, Pickering and Ballard built their case for Pear and Jacobson on the shoulders of the many vaccination litigants who had come before them. Although the case law since 1890 had generally affirmed the right of the state to compel vaccination under its police powers, during the past few years state judges had imposed some meaningful conditions on that right. The “present danger” standard limited the rule-making discretion of administrative bodies. The harm avoidance principle presumed that personal health conditions could be a defense against prosecution in vaccination cases. Of course, the Supreme Judicial Court of Massachusetts had the right to make up its own mind. Pickering and Ballard urged the justices of the renowned court to abolish compulsory vaccination just as their predecessors had abolished slavery in the state 120 years earlier.
Curiously, Pickering and Ballard overlooked one particularly relevant federal case. Unlike most of the era’s important public health cases, Wong Wai v. Williamson (1900) had nothing to do with smallpox. The case arose from the turn-of-the-century bubonic plague epidemic in San Francisco. A federal circuit court issued an injunction to prevent health officials from carrying out a plan that forbade Chinese residents to leave the city without submitting to vaccination. The plague vaccine, Haffkine’s prophylactic vaccine, had been invented just three years earlier. It was highly toxic and had serious side effects, as Chinese residents of the city had learned when a few voluntarily submitted to inoculation. Chinese residents put up a good fight against compulsory inoculation—in the streets and in the courts. Wong Wai, a merchant, sued, insisting the inoculation plan violated the Equal Protection Clause of the Fourteenth Amendment. Judge William Morrow agreed. The plan, he said, was “boldly directed against the Asiatic or Mongolian race as a class, without regard to the previous condition, habits, exposure to disease, or residence of the individual.” The defendants had provided “no evidence” to show that the Chinese were more susceptible to the plague than other races. Morrow cautioned the San Francisco Board of Health that the police power, “however broad and extensive, is not above the constitution.” Wong Wai established equal protection as an important standard for reviewing compulsory health measures.88
In their final briefs Pickering and Ballard presented the Supreme Judicial Court with a libertarian indictment of the growth of police power since the Civil War. The lawyers charged that the government “has surrounded the citizen with a multitude of restrictions as to his right of choice and individual action, and has imposed almost countless conditions upon his exercise of his legal rights, in respect to his use of his own skill and labor, in earning a livelihood, his employment of others, his use of his own property, and his dealings with his fellow citizens.” Compulsory vaccination revealed the extreme tendencies of the police power. It stole from the individual “the most sacred right that man has ever claimed and defended as his own—the right to the inviolability and integrity of his person.” Every citizen had the “privilege” to decide to what “medical cult, if any, he will entrust his protection against the contagion of small-pox.” Given the risks of vaccine—the lawyers cited Joseph McFarland’s recent report on the Camden tetanus deaths—every citizen had the right to “take his chance of small-pox.” The briefs culminated with the obligatory dance on the slippery slope. If compulsory vaccination was constitutional, then so must be “compulsory hypodermic injections of the public with all the known anti-toxins,” the attorneys declared. “Operative surgery, also, must have its turn, and we shall have compulsory removal of appendices, of warts and wens, and compulsory reformations of human architecture generally, and so have a compulsorily reformed and rehabilitated society.