Pox (52 page)

Given the long tradition of judicial deference to the police power, especially in the area of public health, it is remarkable that so many Americans could imagine that compulsory vaccination violated their rights. This unshakable belief arose from their sense that compulsory vaccination was unprecedented—a radical and especially dangerous form of governmental power, different in kind from all previous public health measures.

Prior to the Civil War, the paradigmatic compulsory health measure had been quarantine, a form of physical restraint that raised conventional due process questions: was the detention carried out in a lawful manner, following good common law procedures? Compulsory vaccination involved an invasive medical technology. It raised questions about the
substance
of personal liberty: could the state
ever
penetrate a citizen's body and insert a mysterious biological substance into a healthy human system? Until the 1890s, no state appellate court had ever upheld such a right of government.
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Some legal experts argued that compulsory vaccination was far less intrusive than quarantine. Under quarantine, a smallpox “suspect” could be detained by the government for two full weeks. The vaccination operation lasted but a few minutes. “If the protection of public health allows quarantine,” Freund mused, “it is difficult to see why it should not justify compulsory vaccination.”
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All of this made perfect sense from a conventional due process perspective, which saw seizure of a man's body or property, in the absence of public necessity and proper common law procedure, as an act of the purest tyranny. But for critics of compulsory vaccination (in Europe as well as the United States), any similarity to quarantine ended the moment lancet touched skin. One involved temporary detention of someone officials believed to have been exposed to contagion; the other entailed insertion of an animal virus into a presumably healthy human system. “There is a better way,” Ballard wrote in Jacobson's brief. “In case of a quarantine of the unvaccinated, no risk or danger would ever be run to anybody's health or life—and nobody's feelings would ever be shocked or outraged by it.” What Freund and others saw as the lesser of two necessary evils, vaccination litigants and their lawyers regarded as the far greater invasion of personal liberty.
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The personal liberty claims made in the vaccination cases bore the impress of a changing legal culture, as Americans and their lawyers reached for—and expanded upon—the newly minted language of substantive due process. Lawyers representing vaccination litigants (if not always the litigants themselves) showed that they were well versed in the economic due process arguments that had made headway in recent years in the courts. They marshaled substantive due process onto a new terrain—from the field of contract and property to the domain of personal liberties and the body.

The doctrine of substantive due process became increasingly important in the vaccination cases. In the first case to reach a state supreme court,
Abeel v. Clark
(1890), Santa Cruz parents challenged California's 1889 school vaccination law on the narrowest of technical grounds. The statute, they said, violated the state constitution because the law's subject was not clearly expressed in its title and it was “not general in its scope” (it reached only public schoolchildren, not the general public). The court upheld the law as a reasonable exercise of police power.
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Four years later, Andrew Jackson Duffield's suit against the Williamsport, Pennsylvania, School District made a far more expansive due process argument, signaling a new direction in the litigation. With smallpox “epidemic in many near by cities and towns,” the local school board ordered all pupils to show proof of vaccination. Duffield, a real estate dealer and local constable, went to the Lycoming County Common Pleas Court seeking a writ of mandamus—an order that would compel the school board to admit his unvaccinated son. The court refused. In a time of “imminent danger,” the court declared, school directors had the “right as well as the duty” to do “everything in their power” to prevent the spread of disease. The constable appealed.
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Duffield's attorney got to work. William H. Spencer was a local lawyer who had gone to work in anthracite coal mines at the age of twelve. His brief to the Pennsylvania Supreme Court defined the police power in the narrow terms advocated by the conservative legal scholars Thomas Cooley and Christopher Tiedeman (whose treatises he cited). “The police power is grounded upon inevitable necessity—the necessity that all men are under of so exercising their own rights so as not to infringe upon the equal rights of others.” This was, of course, the common law
sic utere tuo
principle. But Cooley and Tiedeman had recast that venerable maxim in the modern libertarian mold of John Stuart Mill. Like those writers, Spencer said little about the other great maxim of the police power,
salus populi
, which put the people's welfare above all else. Citing the due process clauses of the Fourteenth Amendment and the Pennsylvania Constitution, he called compulsory vaccination an assault by the state “against the body of a healthy child.”
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Duffield lost his case. The Pennsylvania Supreme Court affirmed the broad power of the school board to adopt “reasonable health regulations for the benefit of their pupils and the general public.” The court insisted that no one had compelled Andrew Duffield to vaccinate his son; the board claimed only the right to exclude unvaccinated children. Conceding that “medical men differ” about the effectiveness of vaccination, the court concluded that the board's action reflected “the present state of medical knowledge.” The board had acted “in the utmost good faith,” at a time when smallpox actually threatened Williamsport.
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That same winter, the U.S. Supreme Court upheld the right of New York to enact legislation protecting its fisheries. In the decision, the Court added, for the first time, a new example to the long list of government actions that state appellate courts had found permissible under the police power: “the compulsory vaccination of children.” The language was what lawyers call “dicta”; it did not amount to a constitutional holding affirming compulsory vaccination of schoolchildren or anyone else. But the casual addition of compulsory vaccination to a litany that included “the regulation of railways” and “the restraint of vagrants” suggested the Court saw no problem with it.
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In the absence of an actual Supreme Court ruling, however, the outcomes of the school vaccination cases varied from state to state, fostering a degree of uncertainty that encouraged more litigation. As Pickering and Ballard could plainly see from the state court reports in their libraries, the general trend in the case law since
Duffield
was to uphold the power of legislatures, health boards, and school boards to require vaccination for admission to the public schools. Parents argued that vaccination was a positive right that the states could not deny (especially to the children of taxpayers). But the courts responded with a very parental-sounding lesson: a public education was a privilege, not a right, and when the state granted a privilege, it had the authority to dictate the conditions under which that privilege might be enjoyed. As Hugh Bancroft argued in his briefs for the Commonwealth of Massachusetts in the Pear and Jacobson cases, the schools cases represented a solid line of precedents supporting compulsory vaccination. But the briefs contained a few surprises. Vaccination plaintiffs had won some major concessions from the courts.
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Wisconsin led the way with an 1897 ruling. The state board of health had ordered that no child be admitted to any school in the state without a certificate of vaccination, signed by a “reputable physician.” In covering private, parochial, and public schools, the measure was exceptionally broad. The board of education of Beloit ordered principals and teachers to enforce the provision. At the time, only a few cases of smallpox existed in the entire state, and Beloit had none. A city resident named E. J. Adams, a Christian Scientist, refused to allow his three schoolchildren to be vaccinated, stating his belief that “the laws of God permit no such operation.” The children were expelled. Adams went to the Rock County Circuit Court and secured a peremptory writ ordering the school board to reinstate his children. The era's record of vaccination litigation was filled with such local victories, but they often fell on appeal. But Adams won again at the state level, sparking a minor sensation in the press.
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Clearly, for Adams, his case raised a question of religious liberty. But his legal team, led by a prominent Wisconsin Republican named Ogden H. Fethers, assaulted the board of health's vaccination order on different grounds. The legislature, Fethers argued, could create a board of health, but it could not delegate to that agency its power to make laws. And the board's rule, an absolute mandate that required children to get vaccinated even in the absence of an epidemic, would have been void even if enacted by the legislature itself, because such a requirement was “unreasonable and not enacted by necessity.”
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Fethers's argument raised a question of high importance in the Progressive Era: what were the limits of administrative power—especially when important liberties were at stake? The modern administrative-welfare state was still in its infancy. But municipalities, states, and even the federal government were rolling out new administrative agencies—from railroad commissions to parole boards—to govern new fields of social and economic regulation. The new administrative bodies made their own rules, adjudicated cases, and exercised extraordinary discretionary powers. Critics protested that the rule of law was withering away in America. State boards of health, which first appeared in some places as early as the mid-nineteenth century, were among the oldest administrative agencies. And Fethers was asking the Wisconsin Supreme Court to rein in their rule-making powers.

Remarkably, the court did just that. The opinion in
Adams v. Burdge
was written, with passion, by sixty-year-old Justice Silas U. Pinney, a former mayor of Madison and a veteran on the court. Pinney noted that the board of health was “purely an administrative body” and one “not directly responsible to the people.” (The Wisconsin Supreme Court, unlike the health board, was an elective body.) The board had “no legislative power, properly so called, and none could be delegated to it.” Pinney conceded that in order to fulfill its statutory purpose, the board must have authority to make reasonable regulations. But in the absence of a public emergency, the board's sweeping vaccination order was not reasonable. “[T]here was no epidemic of smallpox in or near the city of Beloit,” Pinney wrote, “and yet, by an arbitrary rule, as by a single stroke of the pen, every child of school age, throughout the entire state, that had not been vaccinated, was excluded from the common schools.” The rule would not stand.
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Adams v. Burdge
was roundly praised and condemned as a victory for religious freedom.
The New York Times
lamented that once a state court yielded to the conscience claims of Christian Scientists and antivaccinationists, legalized polygamy was around the corner. But Justice Pinney had in fact said little about religion. He did say that since the police power pressed upon “the natural and private rights of individuals,” it must be founded upon “the law.”
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The Adams case set an important precedent for holding modern administrative power accountable to law. Its logic was widely adopted. In three more cases from 1897 to 1902, state supreme courts imposed clear limitations on the power of administrative boards to order pupils to get vaccinated. In the absence of a state law mandating vaccination as a condition for admission, no board could impose such an order unless confronted with the “pressing necessity” of a smallpox epidemic. Ernst Freund described the rule as a “present danger” standard. Some fifteen years before Justice Oliver Wendell Holmes, Jr., immortalized this phrase in the American law of free speech, state courts had articulated this civil liberties concept in order to protect citizens against unwarranted government health orders.
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Other parents pressed state courts for relief from the double bind that compulsory education and compulsory vaccination measures imposed upon them. A public education might be a privilege, but in a growing number of states compulsory education laws now made that privilege a legal obligation for parents who could not afford to send their children to a private school. By a bare 3 to 2 majority, in 1901 the Michigan Supreme Court ordered the Kalamazoo school board to admit the healthy but unvaccinated children of George R. Mathews, a Christian Scientist. The smallpox epidemics hadn't reached Kalamazoo. The dissenters in the case made the old argument that denying admission to unvaccinated children did not constitute compulsory vaccination. But the court's majority would not have it. Under the state's education law, a parent was liable to a fine or imprisonment for failing to send a child to school. “The practical result, if this rule can be sustained, is to give the board of education the power to compel vaccination,” the court declared. Since the legislature had never directly given the board that authority, “the school board exceeded its power.”
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And so by the time the Massachusetts Supreme Judicial Court heard the Jacobson and Pear cases, the school vaccination cases had established a complex line of precedents. No court had invalidated a statewide school vaccination law, but at least five courts had imposed some form of “present danger” standard as a limitation on the rule-making powers of boards of health and education. As the
Central Law Journal
proclaimed after the Mathews victory, “Compulsory vaccination is evidently a gross interference of individual liberty and can be justified on only one ground—an ‘overwhelming necessity,' which is the only real justification of what is known as the police power.” Overruling necessity—the community's right of self-defense—was a very old rationale for police power. But it had never been the only one. The vaccination litigants were pressing the courts toward a subtle shift in their understanding of that doctrine. Once a phrase that could justify all manner of state action, “overruling necessity” was taking on a double life as a legal standard for limiting official action—particularly of administrative bodies—whenever personal liberties were at stake.
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