Massachusetts

Henning Jacobson Loses His Freedom to the Board of Public Health

Personal liberty took a hit in the United States when the Supreme Court ruled in the 1905 Jacobson v. Massachusetts case. Henning Jacobson, a Swedish minister, refused vaccination during a smallpox epidemic in Cambridge, Mass. Then he refused to pay the $5 fine and took his case to court.

Henning Jacobson in 1878

The conflict between individual rights and the common good went all the way to the U.S. Supreme Court. In the end, Henning Jacobson and his personal right lost. The court sided with the state, ruling that it could use its police power to protect the public health.

The case has since been called one of the most important pieces of public health jurisprudence in the United States. Judges have cited it in many cases since, including one in 2020 during the COVID-19 pandemic.

Henning Jacobson

Henning Jacobson was born in Sweden on Sept. 15, 1856. When he turned six, Sweden ordered compulsory vaccination and he submitted to it. It caused him “great and extreme suffering.”

As a boy, he immigrated with his family to America in 1869. He became a naturalized U.S. citizen and studied for the ministry at a Swedish Lutheran college, Augustana, in Rock Island, Ill.

Jacobson married Hattie C. Anderson in 1882. They had five children, but only three sons — Fritz, David and Jacob – survived to adulthood.

Ordained in Kansas, the Church of Sweden Mission Board in 1892 called him to build a church in Cambridge, Mass., where a growing community of Swedish immigrants lived. Jacobson started the Swedish Evangelical Lutheran Augustana Church of Cambridge, and would serve as its pastor until his death in 1930.

Today it’s the Faith Lutheran Church.

Faith Lutheran Church.

Jacobson did more than conduct services in Swedish. He met arriving immigrants at the docks and brought them to Cambridge, where he found them work and places to live. He visited them in tenements, in boarding houses and in factories.

The church started out with 23 members and met in rented halls. From 1894-1909, it met in Prospect Hall at 40 Prospect St., now the home of ImprovBoston.

Smallpox

In 1901, a virulent strain of smallpox broke out in the Boston area. Boston alone had 1,596 smallpox victims and 270 died from it.  In late 1901, Boston’s Board of Health ordered that everyone in the city be vaccinated.

smallpox

A smallpox victim in 1912.

Massachusetts in 1855 had become the first state to require vaccinations for schoolchildren. An element of xenophobia informed that attitude. People blamed Italian immigrants for bringing polio with them to the East Coast. On the West Coast, people blamed the Chinese for bubonic plague. In the 1901 smallpox outbreak, 49 percent of the victims whose birthplace was identified were immigrants. But only 35 percent of Boston’s population had foreign origins.

Anti-vaxxers called compulsory vaccination ‘the greatest crime of the age.’ It would ‘slaughter tens of thousands of innocent children.’ The vaccination issue had more importance than slavery because it debilitated the ‘whole human race,’ they argued.

Newspapers sided with the state, calling anti-vaxxers ‘ignorant barbarians’ and ‘hopeless cranks.’ The debate amounted to a ‘conflict between intelligence and ignorance, civilization and barbarism,’ reported the press.

Jacobson v. Massachusetts

On March 15, 1902, the chairman of the Cambridge Board of Health knocked on the door of the Cambridgeport triple-decker where the Jacobson family lived. The visitor, Dr. E. Edwin Spencer, told Henning Jacobson the board had voted to declare a smallpox outbreak. All Cambridge residents had to be vaccinated if they hadn’t in the past five years. Refusal brought a $5 fine.

Pastor Jacobson refused. He argued he and his son had had bad reactions to earlier vaccinations, and he wouldn’t risk it again.

Three months later, the epidemic reached Jacobson’s Cambridgeport neighborhood, almost to his door. Ambulances brought dozens of his sick and dying neighbors to the nearby hospital.

The city ordered the library, schools and churches all closed. “Nothing less than a panic has been produced by the terrible epidemic of smallpox which has broken out in the city this week,” reported the Cambridge Chronicle on June 21.

Vaccinators, accompanied by police, canvassed the Cambridgeport neighborhood, vaccinating everyone they could get their hands on. Sometimes they vaccinated more than 100 people a day.

On July 17, 1902, Edwin Spencer swore out a criminal complaint against Henning Jacobson. Six days later the pastor found himself before a judge, along with a handful of other Cambridge anti-vaxxers.

The Court Case

It took three years for the case to reach its conclusion with a U.S. Supreme Court decision.

harlan

Justice John Marshall Harlan

Jacobson argued that mandatory vaccination law was ‘hostile to the inherent right of every freeman to care for his own body and health in such a way as to him seems best.’ He also claimed the Massachusetts law violated the state and federal constitutions because it made no exception for his own medical history.

He lost all the way to the Supreme Court.

Justice John Marshall Harlan wrote the opinion against him. The safety of the public may at times demand the suspension of personal liberty, he argued. With memories of the Civil War still fresh, he wrote that a community has the right to protect itself from disease the way it had the same right in a military invasion.

Jacobson could probably have taken some comfort in the court’s decision to allow medical exemptions for those who might have a health issue with vaccinations. However, the court ruled Jacobson didn’t qualify for such an exemption because he seemed a healthy adult.

In the end, Jacobson paid the fine.

Impact of Jacobson v. Massachusetts

Since then, the courts have upheld compulsory vaccination many times, wrote Lawrence O. Gostin. “Even the rare judicial reservations about compulsory vaccination focus on religious exemptions and do not query states’ authority to create a generally applicable immunization requirement,” he wrote.

The U. S. Supreme Court cited Jacobson v. Massachusetts in the 1927 case Buck v Bell. In it, the high court upheld a forced-sterilization law, arguing the common good required protection from the responsibility of caring for the children of ‘imbeciles.’

“The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes,” wrote Justice Oliver Wendell Holmes in an infamous opinion.

In 2020, a federal court of appeals used Jacobson v. Massachusetts to justify a ban on abortions in Texas during the coronavirus pandemic. The state included abortion in a regulation prohibiting nonessential surgeries.

With thanks to “The Human Body on Trial: A Handbook with Cases, Laws, and Documents,” by Lynne Curry and “Jacobson v Massachusetts at 100 Years: Police Power and Civil Liberties in Tension” by Lawrence O. Gostin in the American Journal of Public Health, April 2005. And to “Pox An American History” by Michael Willrich.

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