The Courts Go AWOL on the Virus Vax

During the 20th century, the Supreme Court created new constitutional rights not mentioned in the Constitution’s text, primarily by claiming those rights were inherent in the Fifth and 14th Amendment due process clauses. They included rights to privacy, autonomy, and bodily integrity.

In accordance with those new precedents, citizens have asked the courts for protection against oppressive pandemic restrictions. Yet, the courts have dismissed most of their cases, relying on an old Supreme Court decision largely superseded by the newer precedents.

A recent example of this treatment was Justice Amy Coney Barrett’s refusal—without referring the case to her Supreme Court colleagues—to put on hold a vaccination mandate issued by Indiana University, a state institution.

Before proceeding further, let me clarify: I agree that during pandemics, the states’ “police power” (governance authority) is very broad. I have been vaccinated against the CCP virus, and I believe most people probably should be. Nor am I a fan of the Supreme Court’s inventive 20th-century jurisprudence.

But the current Supreme Court generally has been upholding that jurisprudence, so those challenging pandemic restrictions have a right to rely on it.

The older case that judges have been citing in preference to more recent decisions is Massachusetts v. Jacobson, decided in 1905 (pdf). For reasons explained below, Jacobson has been superseded by the Supreme Court’s later cases. But even if Jacobson were still good law, it’s a weak precedent for requiring universal COVID-19 vaccinations.

The facts of the Jacobson case were as follows: The Massachusetts Legislature passed a law authorizing cities to require inhabitants to be vaccinated against smallpox. The city of Cambridge issued such an order. The state prosecuted Jacobson for refusing to be vaccinated. Both the highest court of Massachusetts and the U.S. Supreme Court upheld the law as a reasonable exercise of the state’s “police power.”- READ MORE