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(because the Fourteenth Amendment did). The new brief gave the police power its due, even acknowledging the right of states to regulate the practice of medicine. If Jacobson had actually been infected with small-pox, Williams conceded, the state would have had every right to defend the community against him. The brief disclaimed any objection to voluntary vaccination and conceded the right of any state to exclude unvaccinated children from its schools. But by entrusting local boards with arbitrary powers to inoculate a healthy individual with disease—without making any exception for adults with special health conditions—the Massachusetts legislature had deprived Jacobson of his liberty without due process of law. And by making health exceptions only for children, the law violated the Fourteenth Amendment’s equal protection clause. “In the history of our Republic, and indeed of England,” Williams declared, “there is no parallel to such legislation.”100

In the brief and in oral argument before the Court, Williams offered his own version of the recent history of smallpox in the United States. He recalled the collapse of public confidence in American vaccine, and Cleveland’s decision to fight smallpox with sanitation rather than vaccination. “Smallpox has ceased to be the scourge it once was,” Williams said, in a clear reference to variola minor, “and there is a growing tendency to resort to sanitation and isolation rather than vaccination.” Painting Massachusetts as an outlier state, the brief said only eleven of the nation’s forty-four states had compulsory vaccination laws, while only thirteen excluded unvaccinated children from the public schools. While technically correct, this claim glossed over the important fact that during the epidemics many American communities had ordered vaccination at will, under their local police powers. Williams noted the passage of noncompulsion laws in Utah, West Virginia, and Minnesota, and cited Governor La Follette’s veto of a compulsion bill in Wisconsin, quoting his statement that in other states such laws “have resulted in riots and strife which have outlived the epidemic.” And in his discussion of the state vaccination cases, Williams called special attention to State v. Hay. Placing America’s vaccination controversy in a global context, the brief applauded Parliament’s 1898 conscientious objector clause and reminded the justices that antivaccination riots had rocked Brazil as recently as November 1904.101

The final words of Jacobson’s brief to the Supreme Court paid tribute to the post–Civil War constitutional amendments, particularly the Fourteenth, adopted the year before young Henning sailed to America with his family. Like the Thirteenth and Fifteenth Amendments, the Fourteenth—with its promises of equal protection and due process of law to all within the nation’s domain—guaranteed “the freedom of the African race and the security and perpetuation of that freedom.” In the decades since Reconstruction, the juggernaut of industrial capitalism and the rise of the social question in the United States had prompted the courts to read expansive new freedoms into those clauses. And so Jacobson’s cause posed the question: did not the liberty protected by the Fourteenth Amendment embrace the right of a free man to control his own body and health? “As the Fourteenth Amendment has so often been appealed to for the protection of property,” Williams concluded, “this plaintiff appeals to it with confidence for the protection of his freedom.”102

The Supreme Court handed down its decision in Jacobson v. Massachusetts on February 20, 1905. Associate Justice John Marshall Harlan, the Court’s longest-serving justice, delivered the opinion for the 7 to 2 majority. Harlan was an interesting choice for the assignment. One of the Court’s more contrarian members, he was perhaps best known for his dissents. He also hailed from Kentucky—one of the states hardest hit by the smallpox epidemics.

At seventy-one, Justice Harlan still cut an imposing figure. A former slaveholder, he had served as a colonel