Vaccine mandates aren't new
The president’s temporary order mandating vaccines for government and large businesses last week (with weekly testing as an opt-out) was a surprise to most Americans, regardless of political viewpoint.
Cries of “unconstitutional” and pending state challenges quickly ensued. No doubt, the matter will hit the Supreme Court in record time.
Perhaps a bigger surprise is that it’s not the first time. Masking, quarantines, vaccine mandates, bans and their American roots are more than two centuries old.
Between 1898 and 1903, a deadly and highly contagious disease swept the U.S. and overwhelmed hospitals. A vaccine was developed.
Some Americans declared they would never be vaccinated and raged at government efforts to compel it. When schools required children to be vaccinated, parents of unvaccinated kids marched in protest and demanded their unvaccinated kids be let in.
Anti-vaccination groups cited terrible side effects and corrupt government and health care systems. Some states tried to ban the mandates with legislation, on personal liberty grounds. People used fake vaccine papers and other efforts to evade rules.
Sound familiar?
The disease was smallpox. It’s not an issue anymore, because now nearly everyone in the world gets the vaccine as a young child and the disease was eradicated.
Even before the U.S. was formed, the colonies tried to prevent disease outbreaks by quarantining ships and sometimes, requiring crude inoculations. These too were a source of fear and anger, on both sides.
General George Washington mandated inoculations for soldiers in the Continental Army, writing that smallpox would kill more soldiers than the enemy. The military has a continuing history of mandating vaccines.
As likely will happen again now, a challenge to a city's smallpox vaccine law landed in the Supreme Court on constitutional grounds. Interpreting its meaning when one liberty (to vaccinate or not) conflicts with another (to be safe from contagion) is at the heart of the court’s mission. They ruled in 1905 in Jacobson v. Massachusetts that mandates were indeed constitutional.
As Justice John Marshall Harlan, known for being a staunch defender of civil liberties, wrote:
“(The) Constitution does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint … Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”
Similar mandates issued by states, local governments, and private corporations (confirmed by the EEOC, with religious exemptions) have been upheld. Whether the president's authority extends to private business in the name of public health, we will soon find out.
Other vaccines such as for polio and measles have been less controversial, perhaps because trust was greater and more were voluntarily vaccinated before mandates could come up. By the 1980s, all 50 states required schoolchildren to be vaccinated against these and other diseases. Some parents still disagree, although related court challenges have not been successful.
While vaccine and mandate controversies are clearly nothing new, this time, the divisions have somehow become a lot more partisan than they were before.
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Sholeh Patrick is a columnist for the Hagadone News Network. Email Sholeh@cdapress.com.