In the absence of an actual Supreme Court ruling, however, the outcomes of the school vaccination cases varied from state to state, fostering a degree of uncertainty that encouraged more litigation. As Pickering and Ballard could plainly see from the state court reports in their libraries, the general trend in the case law since Duffield was to uphold the power of legislatures, health boards, and school boards to require vaccination for admission to the public schools. Parents argued that vaccination was a positive right that the states could not deny (especially to the children of taxpayers). But the courts responded with a very parental-sounding lesson: a public education was a privilege, not a right, and when the state granted a privilege, it had the authority to dictate the conditions under which that privilege might be enjoyed. As Hugh Bancroft argued in his briefs for the Commonwealth of Massachusetts in the Pear and Jacobson cases, the schools cases represented a solid line of precedents supporting compulsory vaccination. But the briefs contained a few surprises. Vaccination plaintiffs had won some major concessions from the courts.69
Wisconsin led the way with an 1897 ruling. The state board of health had ordered that no child be admitted to any school in the state without a certificate of vaccination, signed by a “reputable physician.” In covering private, parochial, and public schools, the measure was exceptionally broad. The board of education of Beloit ordered principals and teachers to enforce the provision. At the time, only a few cases of smallpox existed in the entire state, and Beloit had none. A city resident named E. J. Adams, a Christian Scientist, refused to allow his three schoolchildren to be vaccinated, stating his belief that “the laws of God permit no such operation.” The children were expelled. Adams went to the Rock County Circuit Court and secured a peremptory writ ordering the school board to reinstate his children. The era’s record of vaccination litigation was filled with such local victories, but they often fell on appeal. But Adams won again at the state level, sparking a minor sensation in the press.70
Clearly, for Adams, his case raised a question of religious liberty. But his legal team, led by a prominent Wisconsin Republican named Ogden H. Fethers, assaulted the board of health’s vaccination order on different grounds. The legislature, Fethers argued, could create a board of health, but it could not delegate to that agency its power to make laws. And the board’s rule, an absolute mandate that required children to get vaccinated even in the absence of an epidemic, would have been void even if enacted by the legislature itself, because such a requirement was “unreasonable and not enacted by necessity.”71
Fethers’s argument raised a question of high importance in the Progressive Era: what were the limits of administrative power—especially when important liberties were at stake? The modern administrative-welfare state was still in its infancy. But municipalities, states, and even the federal government were rolling out new administrative agencies—from railroad commissions to parole boards—to govern new fields of social and economic regulation. The new administrative bodies made their own rules, adjudicated cases, and exercised extraordinary discretionary powers. Critics protested that the rule of law was withering away in America. State boards of health, which first appeared in some places as early as the mid-nineteenth century, were among the oldest administrative agencies. And Fethers was asking the Wisconsin Supreme Court to rein in their rule-making powers.
Remarkably, the court did just that. The opinion in Adams v. Burdge was written, with passion, by sixty-year-old Justice Silas U. Pinney, a former mayor of Madison and a veteran on the court. Pinney noted that the board of health was “purely an administrative body” and one “not directly responsible to the people.” (The Wisconsin Supreme Court, unlike the health board, was an elective body.) The board had “no legislative power, properly so called, and none could be delegated to it.” Pinney conceded that in order to fulfill its statutory purpose, the board must have authority to make reasonable regulations. But in the absence of a public emergency, the board’s sweeping vaccination order was not reasonable. “[T]here was no epidemic of smallpox in or near the city of Beloit,” Pinney wrote, “and yet, by an arbitrary rule, as by a single stroke of the pen, every child of school age, throughout the entire state, that had not been vaccinated, was excluded from the common schools.” The rule would not stand.72
Adams v. Burdge was roundly praised and condemned as a victory for religious freedom. The New York Times lamented that once a state court yielded to the conscience claims of Christian Scientists and antivaccinationists, legalized polygamy was around the corner. But Justice Pinney had in fact said little about religion. He did say that since the police power pressed upon “the natural and private rights of individuals,” it must be founded upon “the law.”73
The Adams case set an important precedent for holding modern administrative power accountable to law. Its logic was widely adopted. In three more cases from 1897 to 1902, state supreme courts imposed clear limitations on the power of administrative boards to order pupils to get vaccinated. In the absence of a state law mandating vaccination as a condition for admission, no board could impose such an order unless confronted with the “pressing necessity” of a smallpox epidemic. Ernst Freund described the rule as a “present danger” standard. Some fifteen years before Justice Oliver Wendell Holmes, Jr., immortalized this phrase in the American law of free speech, state courts had articulated this civil liberties concept in order to protect citizens against unwarranted government health orders.74
Other parents pressed state courts for relief from the double bind that compulsory education and compulsory vaccination measures imposed upon them. A public education might be a privilege, but in a growing number of states compulsory education laws now made that privilege a legal obligation for parents who could not afford to send their children to a private school. By a bare 3 to 2 majority, in 1901 the Michigan Supreme Court ordered the Kalamazoo school board to admit the healthy but unvaccinated children of George R. Mathews, a Christian Scientist. The smallpox epidemics hadn’t reached Kalamazoo. The dissenters in the case made the old argument that denying admission to unvaccinated children did not constitute compulsory vaccination. But the court’s majority would not have it. Under the state’s education law, a parent was liable to a fine or imprisonment for failing to send a child to school. “The practical result, if this rule can be sustained, is to give the board of education the power to compel vaccination,” the court declared. Since the legislature had never directly given the board that authority, “the school board exceeded its power.”75
And so by the time the Massachusetts Supreme Judicial Court heard the Jacobson and Pear cases, the school vaccination cases had established a complex line of precedents. No court had invalidated a statewide school vaccination law, but at least five courts had imposed some form of “present danger” standard as a limitation on the rule-making powers of boards of health and education. As the Central Law Journal proclaimed after the Mathews victory, “Compulsory vaccination is evidently a gross interference of individual liberty and can be justified on only one ground—an ‘overwhelming necessity,’ which is the only real justification of what is known as the police power.” Overruling necessity—the community’s right of self-defense—was a very old rationale for police power. But it had never been the only one. The vaccination litigants were pressing the courts toward a subtle shift in their understanding of that doctrine. Once a phrase that could justify all manner of state action, “overruling necessity” was taking on a double life as a legal standard for limiting official action—particularly of administrative bodies—whenever personal liberties were at stake.76
Of course, Albert Pear and Henning Jacobson were not schoolchildren. In the thirty years since Slaughter-House, laws that interfered with the economic rights of men—whether for their own good or for the good of the community—had become vulnerable to substantive due process arguments. In 1886, the Pennsylvania Supreme Court invalidated a state law that forbade iron mills to pay their workers in company scrip, rather than
real currency. The court declared the provision “utterly unconstitutional and void” because it prevented two competent individuals—employer and employee—from freely contracting with each other. Never mind that the companies always had the upper hand. The court called the scrip ban “an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading to his manhood, but subversive of his rights as a citizen of the United States.” Since 1886 state courts had repeatedly used similar reasoning to invalidate state laws that set maximum hours or minimum wages for American workingmen. If the government couldn’t tell a grown man to call it a day after eight or ten hours on a sweltering factory floor, could it tell him to bare his arm and take his medicine?77
During smallpox epidemics, local councils and boards of health issued general vaccination orders, sometimes under the express authority of a state law (as the Cambridge Board of Health had done) but more often not. These orders were not directed at children seeking access to a public institution; they applied, at least officially, to everybody. Whether carried out in big cities by virus squads or in small towns by sheriffs or physicians, these orders were wildly unpopular, especially among the workers, African Americans, and immigrants who bore the brunt of them.
Reports of excessive force enraged some judges. In 1895, Judge William Gaynor of the Kings County Supreme Court (a trial-level court) lashed out against Brooklyn’s overzealous health commissioner. Z. Taylor Emery had ordered vaccination raids without authority of a state law. In habeas corpus proceedings, Judge Gaynor (the future mayor of New York) ordered the release of two Brooklyn expressmen, William H. Smith and Thomas Cummings, who had been quarantined in their own Franklin Street stable after they refused to be vaccinated. “The discretion you claim is limitless,” Gaynor thundered at Emery. “I am of the opinion that you have no such power.” The New York Court of Appeals later upheld Gaynor’s ruling: Commissioner Emery had interfered not only with the men’s personal liberty but with their “pursuit of a lawful avocation” without proving that their isolation was warranted by “an extraordinary and dangerous emergency.” When vaccination orders reached adult men, personal liberties concerns often evoked the contemporary struggle over economic rights—a fact that plaintiffs’ lawyers, including Pickering and Ballard, sought to use to their clients’ advantage.78
Pickering and Ballard could find only three state supreme court cases that considered the constitutionality of a general vaccination measure like the one their clients had violated. Two were decided in North Carolina, the other in Georgia—southern states hard hit by “mild type” smallpox. As C.P. Wertenbaker had so often observed during his smallpox work, southern communities were riven with conflict over vaccination, due in large part to the harsh effects of the bacteria-laden dry points in wide use there. Assistant D.A. Bancroft urged that the three cases had raised the “precise question” of the Pear and Jacobson litigation, and in all three cases, “statutes substantially the same as the one before us have been upheld.”79
In Morris v. Columbus (1898), the Georgia Supreme Court upheld an 1890 state law that gave municipalities the right to compel vaccination in order to prevent smallpox. The litigation arose from the prosecution of three men in Columbus, where local officials believed an epidemic was “imminent.” One of the men was a factory worker who had refused to be vaccinated at his workplace. “In no proper sense can the act of the General Assembly attacked in this case be said to deprive the plaintiffs in error of any right without due process of law, or to deny them the equal protection of the laws,” the state court declared. “We do not propose to enter into a discussion as to whether or not [vaccination] is a preventive of smallpox.” Five months later, the same court held that municipalities were not liable for injuries caused by impure vaccine used by their health officers. If the Supreme Judicial Court wanted a model of unquestioning judicial deference to public health power, Georgia was it.80
The North Carolina Supreme Court had also defended the right of municipalities to issue general vaccination orders when authorized by a state law. In 1900, the court reviewed the case of the Burlington merchant W. E. Hay, who had been prosecuted for violating a local vaccination ordinance. Hay told the local trial court that he had been advised that the operation would be dangerous for him due to his physical condition. To test the validity of the ordinance, the local court issued a special verdict for the defendant, enabling the city solicitor to appeal. The supreme court approved compulsory vaccination with the resounding declaration that “Salus populi supreme lex, ‘the public welfare is the highest law,’ is the foundation principle of all civil government.” The court even marshaled government statistics to show that the legislature had good reason to believe vaccination protected communities against smallpox. Writing for the majority, Justice Walter McKenzie Clark, a Confederate Army veteran, compared the community’s right to vaccinate to its right to repel an invasion. He added that modern social conditions—the incessant movement of people, goods, and viruses from place to place—made this method of checking smallpox ever more necessary.81
The next year, the North Carolina court heard the case of Koen Levin. An itinerant Jewish peddler, Levin sued the Piedmont town of Burlington for “wrongful arrest, detention, and ill treatment.” Levin’s case presented public health at its most extreme. In February 1899, the peddler stayed overnight at Mary Ingle’s boardinghouse. The next morning, he drove his wagon nine miles to the Altamaha factory, where he planned to sell his wares. A Burlington police officer caught up with him there, arrested him, and carried him back to the town. Evidently, another boarder at Ingle’s house had come down with smallpox. The officer took Levin back to the boardinghouse, where he was kept in quarantine for twenty-one days, forcibly vaccinated twice, and even made to pay for the vaccine. He was also ordered to wait on the patient. (It is hard to imagine that Levin’s status as a Jew had nothing to do with his treatment.)82
The peddler sought $5,000 in damages for the “great indignity” of this experience, which had caused him “great agony of mind” and the loss of several months’ business, as the people of the area, knowing he had been exposed to smallpox, wanted nothing to do with him. Town officials did not dispute Levin’s version of events. As Chief Justice David Furches put it, no one denied Levin had “received heroic treatment and was damaged.” But he added, “it is not every damage that creates a cause of action.” Citing the principle of sovereign immunity, Furches said, “a municipal corporation can not be held liable in damages for the enforcement of a public law for the public good.”83
Levin was an unblinking affirmation of the police power, and Pickering and Ballard knew Bancroft would cite it. But as the attorneys noted in their own briefs for Pear and Jacobson, the decision was controversial. (The Central Law Journal had issued “a trumpet blast of indignation.”) Unlike Bancroft, they recounted the ugly facts of the case for the Massachusetts justices to mull over. No other state court decision had even indirectly approved of physical-force vaccination.84
And even the North Carolina court, in State v. Hay, had said some things that Pickering and Ballard recognized ought to strengthen Jacobson’s case. Perhaps owing to W.E. Hay’s status as a leading local merchant (rather than an itinerant peddler), the court had disliked the idea of a man being compelled to undergo vaccination against his doctor’s advice. The state court upheld the vaccination order, but as Pickering and Ballard noted, there was more to the case than a simple affirmation of the law. The court conceded that for some individuals, personal health conditions might make vaccination unsafe, providing “a sufficient excuse for noncompliance.” Even though the Burlington ordinance (like the Massachusetts vaccination law, at least as far as adults were concerned) provided no health exemptions, the court ruled that Hay ought to have the right to make his case for a health exception directly to a jury.85
Pickering and Ballard highlighted the concurring opinion in the same case. The opinion eloquently expressed the unease that many judges felt tow
ard the extraordinary administrative power of public health officials. It happened to be written by Justice Robert M. Douglas, the son of the legendary Illinois senator Stephen A. Douglas. Justice Douglas went even further than the majority opinion in reading a health excuse into the law. “[T]here may be cases where vaccination, owing to certain exceptional conditions of health, may be dangerous or even fatal,” Douglas said. “We cannot suppose that the Legislature intended to enforce the rule under such cases.” If the letter of the law did not provide such an excuse, the courts would. After all, it was in the courts, Justice Douglas admonished, “where all of the rights of the citizen are determined and administered.” A court should not grant a public health officer “any presumption of professional infallibility. He must take his chances before the jury, like any other witness.”86
The North Carolina Supreme Court had articulated a novel principle of public health law that is now called “harm avoidance.” Ballard applauded Justice Douglas’s opinion. He wrote, “No better brief can be written, or better argument made” in support of Jacobson’s contention that the Massachusetts statute was unreasonable because it lacked a health exemption for adults. And the North Carolina court had also provided a precedent for the admissibility of precisely the sort of medical evidence that Jacobson had tried twice to put before the trial courts. As Douglas had said in Hay, “the defendant has a right to be heard.”87
And so, Pickering and Ballard built their case for Pear and Jacobson on the shoulders of the many vaccination litigants who had come before them. Although the case law since 1890 had generally affirmed the right of the state to compel vaccination under its police powers, during the past few years state judges had imposed some meaningful conditions on that right. The “present danger” standard limited the rule-making discretion of administrative bodies. The harm avoidance principle presumed that personal health conditions could be a defense against prosecution in vaccination cases. Of course, the Supreme Judicial Court of Massachusetts had the right to make up its own mind. Pickering and Ballard urged the justices of the renowned court to abolish compulsory vaccination just as their predecessors had abolished slavery in the state 120 years earlier.
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