Vaccine Mandate Origins in the US

The history of why vaccine mandates are in fact constitutional in the United States has a long, somewhat twisted history. It’s also of local interest, here at Chez Weekend, as many of the important events transpired a short MBTA ride away.

Why do we talk so much about mandates?

From Bloomberg last Friday came an article by Jonathan Levin ^[1], tracking the long sad decline of life expectancy in America. What used to be a first-class economy with widespread prosperity has become something of a Dickensian nightmare of massive inequality, racism, and now a regrettable tendency of Republicans to embrace fascism. The latest fit in that nightmare has been a decline in life expectancy: the American healthcare system is not only a leading cause of bankruptcy, its spotty availability and our inability to absorb sensible public health advice are killing us.

Bloomberg is using a paper by UCLA professors Heuveline and Tzen, from the BMJ. ^[2] And it’s not just a little blip, it’s a large effect! Consider Figure 4 from Heuveline & Tzen, reproduced here: it shows a life expectancy drop by 2 years, averaged across the entire US population.

Also, the average over the US population doesn’t tell the real story, because it’s not random: as the map from Bloomberg shows, the decline in life expectancy is concentrated in the south, parts of the plains, and parts of the mountain west. These are the Trumpiest, most Republican parts of the US, where people fanatically resist masks or vaccination, preferring useless things like ivermectin. People of my political persuasion have taken to calling the GOP a “death cult”: here’s evidence of the literal truth of that epithet.

And the thing is, it didn’t have to be this way, coming up on 3/4 of a million dead in the US. Other countries have manged to do much better.

For example, here at Chez Weekend we have an interest in Japan. The AP reports that Japan has had some stellar success fighting COVID-19 ^[3] (after, admittedly, a slow start from requiring an additional Japanese clinical trial). The mega-city of Tokyo now has fewer than 100 cases per day:

• Wearing masks when one does not feel well is customary in normal times in Japan, so wearing a mask in a pandemic didn’t even have to be mentioned, let alone mandated.
• While they had a slow start, they eventually got to a very rapid rate of vaccination: they are now at 70% of the population fully vaccinated (vs 57.4% in the US as of today). That plus some natural immunity from previous infection might put them over the top for herd immunity, depending on what one believes about Delta’s $R_0$.

People acted sensibly, and they get to live. That’s why we keep talking about mandates: if we won’t act sensibly voluntarily, then the only way to save lives is through mandates.

Are mandates legal? Can ‘they’ really do that?

Yes, ‘they’ can. And should.

It’s a long-established legal precedent in the US: Jacobson v Massachusetts is the US Supreme Court decision that decided the matter, back in 1905.

Yes, it’s more than a century old. No, it’s not a dead letter: it grants the ability to fine or imprison vaccine resisters during a public health crisis, but it also limits police power (no use of physical force to impose vaccinations). Apparently lawyers like that sort of thing, so this is not only affirmed by subsequent cases, but in active use.

The story of how it came about is intriguing.

Smallpox: Boston, 1901

From the venerable Globe comes the story of how we got here. ^[4] It’s a surprisingly tangled tale with larger than life characters, some of whom resemble figures like Fauci who advise common sense to minimize death… and some of whom sadly resemble Trump who… well, acts inexplicably stupidly and destructively.

Meet Dr. Samuel Holmes Durgin.

He was a graduate of Harvard Med School, commissioned as a surgeon in the Civil War, later port surgeon of Boston and chair of the Boston Board of Health Commissioners. For his day, he was highly qualified and worth a listen when he gave medical advice. (Also, improbably handsome, as all the characters in this tale seem to be. No idea what’s goin’ on there.)

He was on the Board of Health Commissioners in the 1873 smallpox outbreak, and saw first hand how vaccination saved lives. In 1901 smallpox came back and he was horrified. He organized vaccination teams that could vaccinate people by force, if necessary. This was severely overdone: in at least one case, the doctor doing the vaccination had to stitch up a head wound from a police officer’s club.

Ok that’s… the dark side.

Given the use of violent force by police — regrettable and despicable today, but common back then — there was understandable resistance. It grew out of the reaction to forced vaccination, but also from the usual superstitions: that vaccines cause smallpox, that they don’t work, that they are somehow making our “blood impure”… the usual dreck.

So Durgin proposed a put-up-or-shut-up campaign. As the Globe says, reporting on itself more than a century earlier:

“If there are among the adult and leading members of the antivaccinationists any who would like an opportunity to show the people their sincerity in what they profess,” he announced in The Boston Globe, “I will make arrangements by which that belief may be tested . . . by exposure to smallpox without vaccination.”

He figured nobody would be stupid enough to take him up on it.

That’s never a good bet.

The Resistance

Meet Dr. Immanuel Pfeiffer.

The Globe quotes the advertisements for his medical practice making this modest claim:

… blessed with a natural healing power and peculiar magnetism, which has made him the most wonderful man in the world.

… who often claimed to cure the incurable by the laying on of hands, was a fan of hypnotism, and said his “mental command” over digestion allowed him to go without food for extraordinary periods. Basically: a flim-flam artist.

He published a monthly magazine called Our Home Rights about all sorts of bizarre subjects like astrology and tax protests. He hated vaccines, for reasons as inscrutable as everything else he thought. Attempting to apply reason to him is a category error.

Pfeiffer took Durgin’s bet, and they went off to the quarantine unit on Gallop’s Island in Boston harbor. (Ironically, today you can tie up your boat there, but you can’t get off to explore the island — there’s asbestos contamination of more or less everything.)

Pfeiffer toured the place, touched the patients, even deliberately inhaled the breath of one of the sickest. Afterward he took a train to a meeting in Boston where he waved in his friends’ faces his handkerchief that he had used on the island. Then he described how clever he was, to make Durgin fall into his “trap”.

What happened next was, of course, entirely predictable: of course the fool caught smallpox, and apparently a bad case of it. What he did next was almost as bad: under cover of night, he evaded quarantine, going to his farm in Bedford. The people of Bedford were not best pleased at being so exposed, and imposed guards around the farm. Pfeiffer’s family was forcibly vaccinated, and confined in quarantine. The Globe reported as shown here. (Pfeiffer also seems quite handsome; what is it with this story and handsome men behaving badly?!)

Durgin used Pfeiffer’s horribly bad example to press his advantage: 130 doctors vaccinated 12,000 more Bostonians in the tightly packed housing of the North End and West End. Reports from the time say nobody much objected, Pfeiffer’s foolishness being in the front of everyone’s minds.

So… success?

Not really: Pfeiffer managed to survive, and continued to say vaccination was worthless, and minimized the effects of smallpox saying it wasn’t worth avoiding!

Longer term consequences

Misinformation matters.

Meet Henning Jacobson.

He’s the handsome fellow shown here, who is about to misbehave in his own fashion. (He’s more of a victim of misinformation than a perpetrator, though.)

Across the river in Cambridge and just after the Pfeiffer fiasco, police tried to vaccinate Jacobson, who refused and was fined \$5 (a good chunk in those days, maybe \$150 today). At least they weren’t beating people down and vaccinating by force any more, possibly because Jacobson was a Lutheran minister.

What with all the lawyers, one thing led to another, and those other things led to the US Supreme Court. In a 7-2 decsion, Jacobson v Massachusetts established that:

• In times of public health crisis, government can indeed compel vaccination.
• However, they cannot use force, only fines and imprisonment. So no more cops beating people senseless so their pet cop doc can vax the victim.

It both supports state powers and limits them, so lawyers like it. The decision has been affirmed numerous times, and is still in active use. There’s a nice review by Wendy Mariner and co-authors in Am J Public Health that is worth your time. ^[5] (It should be noted that Jacobson v Mass has been mis-used, as well, for things like forced sterilization. No tool is so purely right that evil people can’t abuse it.)

Vaccine mandates today

It is, as the saying goes, stare decisis.

Nobody’s hands were completely clean in this story. They either used excessive force, or were con artists purveying misinformation, or were insufficiently skilled at critical thinking to defend themselves against misinformation. Still, as Kant said: “Aus so krummem Holze, als woraus der Mensch gemacht ist, kann nichts ganz Gerades gezimmert werden” (out of the crooked timber of humanity, no straight thing was ever made). So let’s be compassionate and admit we’re imperfect, so here we are together with that story as our history of vaccine mandates.

Nobody likes a mandate, but mandates do stop people dying.

And people do like not dying.

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Notes & References

1: J Levin, “Covid Is Shaving Years Off Life Expectancy in Sun Belt, Great Plains”, Bloomberg, 2021-Oct-15. ↩

2: P Heuveline & M Tzen, “Beyond deaths per capita: comparative COVID-19 mortality indicators”, BMJ Open 11:3, e042934. DOI: 10.1136/bmjopen-2020-042934. ↩

3: M Yamaguchi, “Vaccines, masks? Japan puzzling over sudden virus success”, AP News, 2021-Oct-18. ↩

4: C Klein, “A 1901 smallpox epidemic, a charismatic quack, and the rise of anti-vax propaganda in Boston”, Boston Globe, 2021-Oct-14. ↩

5: WK Mariner, et al., “Jacobson v Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law”, Am J Public Health 95:4, 581-590, 2005-April. PMID: 15798113↩