Pox (53 page)

Of course, Albert Pear and Henning Jacobson were not schoolchildren. In the thirty years since
Slaughter-House
, laws that interfered with the economic rights of men—whether for their own good or for the good of the community—had become vulnerable to substantive due process arguments. In 1886, the Pennsylvania Supreme Court invalidated a state law that forbade iron mills to pay their workers in company scrip, rather than real currency. The court declared the provision “utterly unconstitutional and void” because it prevented two competent individuals—employer and employee—from freely contracting with each other. Never mind that the companies always had the upper hand. The court called the scrip ban “an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading to his manhood, but subversive of his rights as a citizen of the United States.” Since 1886 state courts had repeatedly used similar reasoning to invalidate state laws that set maximum hours or minimum wages for American workingmen. If the government couldn't tell a grown man to call it a day after eight or ten hours on a sweltering factory floor, could it tell him to bare his arm and take his medicine?
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During smallpox epidemics, local councils and boards of health issued general vaccination orders, sometimes under the express authority of a state law (as the Cambridge Board of Health had done) but more often not. These orders were not directed at children seeking access to a public institution; they applied, at least officially, to everybody. Whether carried out in big cities by virus squads or in small towns by sheriffs or physicians, these orders were wildly unpopular, especially among the workers, African Americans, and immigrants who bore the brunt of them.

Reports of excessive force enraged some judges. In 1895, Judge William Gaynor of the Kings County Supreme Court (a trial-level court) lashed out against Brooklyn's overzealous health commissioner. Z. Taylor Emery had ordered vaccination raids without authority of a state law. In habeas corpus proceedings, Judge Gaynor (the future mayor of New York) ordered the release of two Brooklyn expressmen, William H. Smith and Thomas Cummings, who had been quarantined in their own Franklin Street stable after they refused to be vaccinated. “The discretion you claim is limitless,” Gaynor thundered at Emery. “I am of the opinion that you have no such power.” The New York Court of Appeals later upheld Gaynor's ruling: Commissioner Emery had interfered not only with the men's personal liberty but with their “pursuit of a lawful avocation” without proving that their isolation was warranted by “an extraordinary and dangerous emergency.” When vaccination orders reached adult men, personal liberties concerns often evoked the contemporary struggle over economic rights—a fact that plaintiffs' lawyers, including Pickering and Ballard, sought to use to their clients' advantage.
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Pickering and Ballard could find only three state supreme court cases that considered the constitutionality of a general vaccination measure like the one their clients had violated. Two were decided in North Carolina, the other in Georgia—southern states hard hit by “mild type” smallpox. As C.P. Wertenbaker had so often observed during his smallpox work, southern communities were riven with conflict over vaccination, due in large part to the harsh effects of the bacteria-laden dry points in wide use there. Assistant D.A. Bancroft urged that the three cases had raised the “precise question” of the Pear and Jacobson litigation, and in all three cases, “statutes substantially the same as the one before us have been upheld.”
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In
Morris v. Columbus
(1898), the Georgia Supreme Court upheld an 1890 state law that gave municipalities the right to compel vaccination in order to prevent smallpox. The litigation arose from the prosecution of three men in Columbus, where local officials believed an epidemic was “imminent.” One of the men was a factory worker who had refused to be vaccinated at his workplace. “In no proper sense can the act of the General Assembly attacked in this case be said to deprive the plaintiffs in error of any right without due process of law, or to deny them the equal protection of the laws,” the state court declared. “We do not propose to enter into a discussion as to whether or not [vaccination] is a preventive of smallpox.” Five months later, the same court held that municipalities were not liable for injuries caused by impure vaccine used by their health officers. If the Supreme Judicial Court wanted a model of unquestioning judicial deference to public health power, Georgia was it.
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The North Carolina Supreme Court had also defended the right of municipalities to issue general vaccination orders when authorized by a state law. In 1900, the court reviewed the case of the Burlington merchant W. E. Hay, who had been prosecuted for violating a local vaccination ordinance. Hay told the local trial court that he had been advised that the operation would be dangerous for him due to his physical condition. To test the validity of the ordinance, the local court issued a special verdict for the defendant, enabling the city solicitor to appeal. The supreme court approved compulsory vaccination with the resounding declaration that “Salus populi supreme lex, ‘the public welfare is the highest law,' is the foundation principle of all civil government.” The court even marshaled government statistics to show that the legislature had good reason to believe vaccination protected communities against smallpox. Writing for the majority, Justice Walter McKenzie Clark, a Confederate Army veteran, compared the community's right to vaccinate to its right to repel an invasion. He added that modern social conditions—the incessant movement of people, goods, and viruses from place to place—made this method of checking smallpox ever more necessary.
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The next year, the North Carolina court heard the case of Koen Levin. An itinerant Jewish peddler, Levin sued the Piedmont town of Burlington for “wrongful arrest, detention, and ill treatment.” Levin's case presented public health at its most extreme. In February 1899, the peddler stayed overnight at Mary Ingle's boardinghouse. The next morning, he drove his wagon nine miles to the Altamaha factory, where he planned to sell his wares. A Burlington police officer caught up with him there, arrested him, and carried him back to the town. Evidently, another boarder at Ingle's house had come down with smallpox. The officer took Levin back to the boardinghouse, where he was kept in quarantine for twenty-one days, forcibly vaccinated twice, and even made to pay for the vaccine. He was also ordered to wait on the patient. (It is hard to imagine that Levin's status as a Jew had nothing to do with his treatment.)
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The peddler sought $5,000 in damages for the “great indignity” of this experience, which had caused him “great agony of mind” and the loss of several months' business, as the people of the area, knowing he had been exposed to smallpox, wanted nothing to do with him. Town officials did not dispute Levin's version of events. As Chief Justice David Furches put it, no one denied Levin had “received heroic treatment and was damaged.” But he added, “it is not every damage that creates a cause of action.” Citing the principle of sovereign immunity, Furches said, “a municipal corporation can not be held liable in damages for the enforcement of a public law for the public good.”
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Levin
was an unblinking affirmation of the police power, and Pickering and Ballard knew Bancroft would cite it. But as the attorneys noted in their own briefs for Pear and Jacobson, the decision was controversial. (The
Central Law Journal
had issued “a trumpet blast of indignation.”) Unlike Bancroft, they recounted the ugly facts of the case for the Massachusetts justices to mull over. No other state court decision had even indirectly approved of physical-force vaccination.
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And even the North Carolina court, in
State v. Hay
, had said some things that Pickering and Ballard recognized ought to strengthen Jacobson's case. Perhaps owing to W.E. Hay's status as a leading local merchant (rather than an itinerant peddler), the court had disliked the idea of a man being compelled to undergo vaccination against his doctor's advice. The state court upheld the vaccination order, but as Pickering and Ballard noted, there was more to the case than a simple affirmation of the law. The court conceded that for some individuals, personal health conditions might make vaccination unsafe, providing “a sufficient excuse for noncompliance.” Even though the Burlington ordinance (like the Massachusetts vaccination law, at least as far as adults were concerned) provided no health exemptions, the court ruled that Hay ought to have the right to make his case for a health exception directly to a jury.
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Pickering and Ballard highlighted the concurring opinion in the same case. The opinion eloquently expressed the unease that many judges felt toward the extraordinary administrative power of public health officials. It happened to be written by Justice Robert M. Douglas, the son of the legendary Illinois senator Stephen A. Douglas. Justice Douglas went even further than the majority opinion in reading a health excuse into the law. “[T]here may be cases where vaccination, owing to certain exceptional conditions of health, may be dangerous or even fatal,” Douglas said. “We cannot suppose that the Legislature intended to enforce the rule under such cases.” If the letter of the law did not provide such an excuse, the courts would. After all, it was in the courts, Justice Douglas admonished, “where all of the rights of the citizen are determined and administered.” A court should not grant a public health officer “any presumption of professional infallibility. He must take his chances before the jury, like any other witness.”
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The North Carolina Supreme Court had articulated a novel principle of public health law that is now called “harm avoidance.” Ballard applauded Justice Douglas's opinion. He wrote, “No better brief can be written, or better argument made” in support of Jacobson's contention that the Massachusetts statute was unreasonable because it lacked a health exemption for adults. And the North Carolina court had also provided a precedent for the admissibility of precisely the sort of medical evidence that Jacobson had tried twice to put before the trial courts. As Douglas had said in
Hay
, “the defendant has a right to be heard.”
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And so, Pickering and Ballard built their case for Pear and Jacobson on the shoulders of the many vaccination litigants who had come before them. Although the case law since 1890 had generally affirmed the right of the state to compel vaccination under its police powers, during the past few years state judges had imposed some meaningful conditions on that right. The “present danger” standard limited the rule-making discretion of administrative bodies. The harm avoidance principle presumed that personal health conditions could be a defense against prosecution in vaccination cases. Of course, the Supreme Judicial Court of Massachusetts had the right to make up its own mind. Pickering and Ballard urged the justices of the renowned court to abolish compulsory vaccination just as their predecessors had abolished slavery in the state 120 years earlier.

Curiously, Pickering and Ballard overlooked one particularly relevant federal case. Unlike most of the era's important public health cases,
Wong Wai v. Williamson
(1900) had nothing to do with smallpox. The case arose from the turn-of-the-century bubonic plague epidemic in San Francisco. A federal circuit court issued an injunction to prevent health officials from carrying out a plan that forbade Chinese residents to leave the city without submitting to vaccination. The plague vaccine, Haffkine's prophylactic vaccine, had been invented just three years earlier. It was highly toxic and had serious side effects, as Chinese residents of the city had learned when a few voluntarily submitted to inoculation. Chinese residents put up a good fight against compulsory inoculation—in the streets and in the courts. Wong Wai, a merchant, sued, insisting the inoculation plan violated the Equal Protection Clause of the Fourteenth Amendment. Judge William Morrow agreed. The plan, he said, was “boldly directed against the Asiatic or Mongolian race as a class, without regard to the previous condition, habits, exposure to disease, or residence of the individual.” The defendants had provided “no evidence” to show that the Chinese were more susceptible to the plague than other races. Morrow cautioned the San Francisco Board of Health that the police power, “however broad and extensive, is not above the constitution.”
Wong Wai
established equal protection as an important standard for reviewing compulsory health measures.
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In their final briefs Pickering and Ballard presented the Supreme Judicial Court with a libertarian indictment of the growth of police power since the Civil War. The lawyers charged that the government “has surrounded the citizen with a multitude of restrictions as to his right of choice and individual action, and has imposed almost countless conditions upon his exercise of his legal rights, in respect to his use of his own skill and labor, in earning a livelihood, his employment of others, his use of his own property, and his dealings with his fellow citizens.” Compulsory vaccination revealed the extreme tendencies of the police power. It stole from the individual “the most sacred right that man has ever claimed and defended as his own—the right to the inviolability and integrity of his person.” Every citizen had the “privilege” to decide to what “medical cult, if any, he will entrust his protection against the contagion of small-pox.” Given the risks of vaccine—the lawyers cited Joseph McFarland's recent report on the Camden tetanus deaths—every citizen had the right to “take his chance of small-pox.” The briefs culminated with the obligatory dance on the slippery slope. If compulsory vaccination was constitutional, then so must be “compulsory hypodermic injections of the public with all the known anti-toxins,” the attorneys declared. “Operative surgery, also, must have its turn, and we shall have compulsory removal of appendices, of warts and wens, and compulsory reformations of human architecture generally, and so have a compulsorily reformed and rehabilitated society.”
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