Remembering Jacobson v. Massachusetts

By Deborah Cho

In light of the measles outbreaks in California and now in Nevada, many, including myself, have wondered how we’ve come to this point where a completely preventable disease seems to threaten the lives of so many.  While there are recognized legitimate reasons to opt-out of receiving vaccinations, such as for medical and religious reasons, several states allow for opting-out based only on personal beliefs against a scientifically proven fact.  As California suffers from the greatest measles outbreak in this country in over a decade, lawmakers have begun to consider repealing the personal belief exemption.  If repealing the provision proves to be impossible, seeing as how the parents of over 10,000 kindergarteners in California have already chosen to take advantage of the exemption for non-religious reasons, it may be necessary to consider other strategies to encourage a rate of vaccination high enough to maintain herd immunity within our communities.

Jacobson v. Massachusetts was a seminal case in public health law from the early 20th century because it held that the State could mandate vaccinations, or other public health measures, when necessary to protect public health and safety.  The Court recognized some limits to this intrusion of liberty, such as when an individual would suffer harm from the measure or when the individual would be unduly burdened — as in the case of someone with strong religious beliefs against the measure.  Furthermore, the Court articulated some general standards: the measure must have a real and substantial relation to the public health goal and the burden caused must not be disproportionate to the benefit.  The public health measure in Jacobson met these standards — it compelled smallpox vaccination during an outbreak or required payment of a nominal monetary fine for those who refused to comply without a legitimate reason.  As Jacobson had no medical reason to opt-out of receiving the vaccination and had not asked for a religious exemption,  the Court found that he was required to either be vaccinated or to pay the fine.  His skepticism toward the medicine and doubt in the government were not enough.  Jacobson’s reasoning sounds strikingly familiar to the reasoning of many who choose to opt-out today, yet today the science is even more advanced and the benefits of vaccination are even clearer.

In Jacobson, the public health authorities in Cambridge dealt with individuals like Jacobson by constructing a scheme that involved imposing a nominal fine of five dollars – something that was bothersome enough to encourage those individuals who did not have the deepest objections into getting vaccines without being too coercive.  Perhaps something like this could be considered in light of the circumstances today.  While some people strongly believe that vaccines are harmful, I would wager that at least a subset of those people could be convinced to reconsider if there were more obstacles in their way to getting a personal exemption.  As noted in this article from 2012, it seems that some parents choose to opt-out simply because it is more convenient to do so than it is to follow through with the vaccinations.  Furthermore, the ease with which individuals can receive a personal exemption may also mistakenly signify to patients that the medical community condones the anti-vaccination movement.  A small fine or even more elaborate paperwork could be the difference in reaching the levels necessary to achieve herd immunity and to keep measles and other deadly and preventable diseases at bay.

3 thoughts to “Remembering Jacobson v. Massachusetts”

  1. I agree with your basic premise, though as I’ve written elsewhere I wouldn’t make it a criminal sanction, as in Jacobson. But apart from deterrence – and again, I agree with you there – another reason to impose such costs is to force those who make the decision to internalize the costs. Preventable diseases have costs – for the public health authorities that need to contain and deal with them, and for others. It’s appropriate that those that make the decisions that create those costs pay for their action: it’s part of personal responsibility.

  2. “… based only on personal beliefs against a scientifically proven fact …” The problem seems to be (and no, I am not vaccination-phobic!) that depending on the time-line that you apply you can prove almost anything about the “efficacy” of vaccinations. And the one thing that’s worrying many many critics is: there are longer data series than are used by the vaccination lobby that show that if there was a rapid decline of diseases that the vaccine was meant to mitigate, the decline happened before the start of inoculations. But worse: the decline often SLOWED after vaccinations began. And for the pox vaccinations: the pox outbreaks sometimes increased after the far-flung vaccination schemes began and sometimes sought out … those vaccinated. That makes you pause, doesn’t it? What makes you even more critical is that these facts are generally not denied (as they can be proven) but are not acknowledged unless you insist discussing them. Science is defined differently – in my book …

    1. “here are longer data series than are used by the vaccination lobby that show that if there was a rapid decline of diseases that the vaccine was meant to mitigate, the decline happened before the start of inoculations. ”

      Actually, that’s not true. The mortality from vaccine preventable diseases decreased before the disease in many cases; but the incidence, the number of cases, did not. There were many cases up to the disease. See tables 1 & 2 in: Sw Roush & T. V. Murphy, HIstorical comparisons of morbidity and mortality for vaccine-preventable diseases in the united states, 298 JAMA 2155(2007).

      Cases were still happening, with deaths, harms and disabilities.

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