What Is Jacobson v. Massachusetts? How Supreme Court Ruled on Vaccine Mandate in 1905

Supporters of President Joe Biden's new vaccine mandates are pointing to a Supreme Court decision from 1905 to counter claims that the plan is illegal.

Biden issued two executive orders on Thursday requiring federal employees and contractors to receive the COVID-19 vaccine. He also announced that businesses with more than 100 employees would have to ensure their workers are vaccinated or tested on a weekly basis.

Some critics suggested that vaccine mandates were unconstitutional and said they would challenge them. Opponents including the Republican National Committee said they would sue the administration over the plan.

However, many Twitter users expressed support for Biden's decision and cited the 1905 Supreme Court case Jacobson v. Massachusetts to support the legality of mandates.

In that landmark decision, the court ruled 7-2 that a state had the authority to enforce laws on mandatory vaccination.

That decision was further affirmed in the 1922 case Zucht v. King, when the Supreme Court ruled that the school district of San Antonio, Texas, could exclude students who hadn't received required vaccinations.

In the 1905 ruling, Associate Justice John Marshall Harlan wrote the opinion for the majority finding against Henning Jacobson, who had refused the smallpox vaccine, been prosecuted and fined $5.

Harlan wrote: "The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.

"But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good."

Harlan went on: "On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. 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."

"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."--Jacobson v Mass (1905). pic.twitter.com/t7hbONeq8Z

— Marc E. Elias (@marceelias) September 10, 2021

Associate Justices David J. Brewer and Rufus W. Peckham dissented but, rather than offer a legal opinion, they quoted from encyclopedia entries on the history of mandatory vaccination.

The precedent set in Jacobson has never been overturned but it is important to note that the court was deciding the constitutionality of a law, whereas Biden issued executive orders.

The president also asked the Department of Labor to issue an emergency rule for employers of more than 100 people.

In August, Associate Justice Amy Coney Barrett dismissed a challenge to Indiana University's vaccine mandate in what many saw as an indication that the court would uphold the 1905 precedent. A lower court judge had cited Jacobson in ruling against the plaintiffs.

Alan Dershowitz, professor emeritus at Harvard Law School and an expert in constitutional law, told Fox News in July that the Supreme Court was likely to uphold vaccine mandates.

"As far as mandating vaccination, I think the Supreme Court would uphold gradual mandating of vaccinations," he said. "That is, first, conditioning going to school on getting vaccinated, conditioning getting on airplanes, conditioning going to crowded buildings."

A Technician Fills a Syringe with Vaccine
A technician fills a syringe with a Janssen COVID-19 vaccine on September 9 in Fort Knox, Kentucky. In 1905, the Supreme Court ruled in favor of a mandatory vaccination law. Jon Cherry/Getty Images