Pox_ An American History - Michael Willrich [185]
It was an absurd argument, intended to jolt the justices from familiar ways of thinking. Pickering and Ballard could not have known that four years later Indiana would enact America’s first eugenical sterilization law.
On April 2, 1903, the Supreme Judicial Court handed down its unanimous decision in Commonwealth v. Pear; Same v. Jacobson. The opinion was written by Chief Justice Marcus P. Knowlton. A Massachusetts native and Yale graduate, Knowlton had a long career in public life, including service in both branches of the state legislature and sixteen years as a superior court justice before he was appointed to the Supreme Judicial Court in 1887.90
Knowlton’s opinion closely followed the path laid out for him in Bancroft’s brief. “The rights of individuals must yield, if necessary, when the welfare of the whole community is at stake,” Knowlton declared. “This is true of the right to personal liberty as well as the right to property.” If quarantine and conscription were reasonable exercises of governmental power, then so was compulsory vaccination. “It is a fact of common knowledge that smallpox is a terrible disease whose ravages have sometimes swept away thousands of human beings in a few weeks,” Knowlton wrote. “It is equally well known that a large majority of the medical profession and of people generally consider vaccination, repeated at intervals of a few years, a preventive of the disease.” He cited the line of state cases upholding compulsory vaccination, noting that even cases such as Adams v. Burdge, which struck down measures issued by health boards, assumed that a legislature may interfere with individual rights of the unvaccinated “when smallpox is prevalent.”91
Knowlton also ruled that the trial court had properly excluded Jacobson’s offers of evidence. Jacobson’s propositions regarding the danger vaccination posed to him were matters of his personal belief, which could neither “affect the validity of the statute, nor entitle him to be excepted from its provisions.” The “theoretical possibility” that enforcement might result in an individual injury was insufficient to show that the statute itself was unreasonable. “The application of a good law to an exceptional case may work hardship.” Knowlton mused that the law still gave the “exceptional” individual an out: “the worst that could happen to him under the statute would be the payment of a penalty of $5.” (In fact, there was nothing to stop the government from prosecuting a single vaccine refuser again and again for repeatedly committing the same offense.)92
The Supreme Judicial Court handed the antivaccination movement a major defeat, affirming one of America’s strongest vaccination laws. But Knowlton added a note of caution, sending an unmistakable signal to local boards of health. In certain instances, he said, “the time and manner of enforcement” might call for stricter judicial scrutiny. “If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force.”93
This was no casual aside. As anyone who read the Boston newspapers knew, physical force vaccination was hardly uncommon in turn-of-the-century America. Not everyone received a polite visit from the chairman of the board of health. From the African American shacks of Middlesboro, Kentucky, to the tenements of Italian Harlem to the huts of the Philippine city of Iloilo, American health officials, police, and soldiers had on numerous occasions enforced vaccination at the point of a gun or the end of a billy club. Like the “tramps” who had uttered “every imaginable threat from civil suits to cold-blooded murder” when the Boston virus squad burst into their South Boston lodging house in the middle of the night, Knowlton recognized that forcible vaccination was beyond the pale. Getting this noforce principle stated for the public record by one of the nation’s most venerable state courts was a major achievement.94
The court handed down its decision that same day in the Commonwealth