Pox_ An American History - Michael Willrich [189]
Harlan posed the vaccination question in the starkest terms: as a conflict that pitted the most basic duty of the state—protecting the population from peril—against the personal liberty of individuals who feared vaccination even more than they feared smallpox. Speaking for a Court whose members included three Civil War veterans—the former colonel likened the community’s right to fight smallpox to its right and duty to defend itself from a military invasion. “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” He recalled that smallpox was epidemic in the city of Cambridge when the board of health issued its order. “[U]nder the pressure of great dangers,” he said, an individual’s freedom must yield to public necessity. During an epidemic—no less than in a time of war—no man had the right to refuse the call of his country. “[H]e may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense.”107
To Harlan and the Court’s majority, the Massachusetts compulsory vaccination law was unquestionably constitutional. But the decision was not, as some would later imagine it, a blank check. In fact, the opinion articulated new limitations on police power that would have stunned a nineteenth-century jurist like Lemuel Shaw. Since 1897, the vaccination cases had nudged state courts toward a more cautious balancing of state power and individual rights appropriate to an era of rapid technological and institutional change. Echoing the “present danger” standard established in the schools cases, Harlan emphasized that public health power was itself contingent. The right of a community to compel vaccination existed because of the “necessities of the case,” the dangerous presence of smallpox. And even during a life-threatening epidemic, said Harlan, the authorities might go too far. “[I]t might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.” Harlan left the details open. But in just the past few years, several courts had done just that. In Wong Wai, a federal circuit court had established equal protection as an inviolable constitutional standard in vaccination cases. In its Pear and Jacobson decision, the Massachusetts Supreme Judicial Court had declared that government officials had no right to enforce vaccination by physical force.108
At the end of his opinion, Justice Harlan delivered a surprise. With language that evoked the Eighth Amendment of the Bill of Rights, Harlan carved into the Massachusetts law a medical exemption for adults. It was “easy,” Harlan said, “to suppose the case of an adult who is embraced by the mere words of the act, but yet to subject