The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes

“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”

Illustration by David Parkins

Horrified? That was the ruling of Oliver Wendell Holmes, Jr. in the Supreme Court case Buck v. Bell, 274 US 200 (1927), a decision that upheld the power of the state to force women onto an operating table.* The compulsory vaccination rule he refers to is the Supreme Court decision, Jacobson v. Massachusetts, 197 US 11 (1905). That decision upheld state government’s power to compel smallpox vaccination, ruling that, under certain circumstances, citizens are subject to the police power of the state on matters of public health.

At least that is the way it is being used. It was Justice John Marshall Harlan, the only judge to dissent in Plessy v. Ferguson, who authored the majority opinion in Jacobson. In his defense, Harlan warned against “arbitrary” or “oppressive” regulation and expressly associated compulsory vaccination with the scourge of smallpox. But the keen sense that could see the future legacy of separate-but-equal failed to anticipate the blunt instrument Jacobson would become in the hands of technocracy.

A 2008 Harvard Law Review article notes that “Jacobson is a foundational public health law case. Its reasoning and logic pervade vaccine law decisions to this day.” And more than vaccines. In Vernonia School District v Acton, 515 US 646 (1995), Jacobson was used to justify the random drug testing of students (despite the Court recognizing the action as constituting searches under the Fourth Amendment). More recently, Jacobson has been cited as a precedent in rulings concerning face masks and home confinement orders. Early in the COVID-19 pandemic, a court extended Jacobson to cover matters of reproductive liberty. The US Court of Appeals for the Fifth Circuit leaned on Jacobson to uphold a Texas ban on non-essential medical services and surgeries that included abortions. (See The 115-year-old Supreme Court opinion that could determine rights during a pandemic).

The matter of reproductive freedom cannot be ignored by those of us who care about bodily integrity and personal sovereignty—our most fundamental human rights. Trump appointee Justice Amy Coney Barrett just refused to block Indiana University’s vaccine mandate presumably on grounds Jacobson established. She gave no reason, but just wait until she gets her hands on an abortion case. If the state can compel the vaccination and sterilization of a person for the sake of others (Buck v. Bell still stands), then does it not follow that a woman can be compelled to carry a fetus to term? You thought it was “your body your choice,” but the abuse of Jacobson may prove otherwise. Did you forget? The Supreme Court has been Catholicized.

The Harvard Law Review article I earlier cited notes that “Jacobson was decided in a different time. It addressed issues about medicine, disease, and society that are no longer relevant today.” Indeed. Why are courts leveraging a precedent from a time when rights and science were in a very different place? Compared to the revolution in rights that followed the horrors of Nazism, freedom for early twentieth century Americans was sharply constrained. It was the Progressive Era, and its technocrats desired totalistic control over the masses. It was during this period that, among other things, alcohol was prohibited, drugs were regulated, and eugenics programs operated in a majority of states. Moreover, today, science has become a quasi religious system (see The Problem of Scientism).

With the emergence of corporate governance in the wake of the Civil War, enabled by the Supreme Court’s recognition of corporations as legal persons, person with the rights of human citizens sans conscience, the regulatory apparatus was soon captured by big business, which, as Richard Grossman has pointed out, is a clever way of distancing progressivism from corporatism; regulatory capture was the point of progressivism all along. For progressives, mass society is too massive for self-government, whether on the plane of individual sovereignty or the populist collective, neither finding the people up to the task, so the management of people becomes the responsibility of a technocratic elite. (The writings of public relations industry pioneers Edward Bernays and Walter Lippmann is paradigmatic of the attitude that pervades the organic intellectual space of progressivism.) (See We Have Become Eisenhower’s Worst Fears: The Establishment of the Scientific-Industrial Complex; Progressivism—an Excerpt from The 1776 Report.)

That same technocratic desire prevails today. Astonishingly, in the wake of the horrors of Holocaust, where the Nuremberg Code was established to protect the rights of individuals from the power of the state to force medical interventions, and the Declaration of Human Rights to cover many more, courts in the United States are ruling on matters on the basis of an arcane precedent established more than a century ago during a period in US history where censorship, compulsory sterilization, prohibition of contraception, de jure racial segregation, open borders. Justice Barrett’s ruling proceeds without apparent recognition of the horrors of the past, nor with regard for the spirit of our founding or appreciation for the progress of human freedom. Barrett is as blind to the past on this matter as Harlan was to the future. (See On the Ethics of Compulsory Vaccination.) It seems that the post-WWII period of expansive individual freedom was exceptional.

This blindness is pervasive. A profound disconnect (or dishonesty) appears in the way the establishment media talks about the ethics of vaccine mandates. Liam Drew, in an article for Nature, writes, “Governments can never force someone to get themselves or their child vaccinated—it is a foundational principle of medical ethics that consent must be given for any procedure.” Well said. Yet, in the very next sentence, Drew contradicts the principle he so clearly articulates. “The decision to make vaccination mandatory is therefore a decision to impose some form of penalty on those who do not follow the law.” If one is punished for not doing something, then one is being forced to do something. I believe I can make this point obvious to the reader. If a man straps a bomb on your body and instructs you to rob a bank or suffer death, while you may choose not to rob the bank, no court is going to deny that you were forced to rob a bank if you choose life. One does not consent with a gun to his head. At the very least, we must admit that the person who is punished for exercising his right does not really possess that right. It cannot be said, for instance, that one enjoys a right to freedom of speech if one is punished for his utterances.

What about the scourge of COVID-19? What about it? Every third person died from smallpox, and the rate was even greater for babies. Survivors were often blind and scarred for life. The modern smallpox vaccine, developed in the nineteenth century, is a live virus preparation of the vaccinia virus, which is safe and cross-protective for cowpox, monkeypox, and smallpox (variola). The smallpox vaccine is effective in preventing infection in 95 percent of those vaccinated. Get back to me when SARS-CoV-2 becomes that lethal and there is a vaccine that successful. (See The Official Vaccine Narrative Completely Falls Apart; The Immorality of Vaccine Passports and the Demands of Nuremberg; The Communitarian Nightmare We Feared is Here; Somehow, a Bill of Rights got Locked into the Constitution.)

* * *


* Holmes, by the way, a man beloved by progressives and pragmatists, is the same man who, in Schenck v. United States, 249 U.S. 47 (1919), in a judgment anticipating the attitude of the People’s Republic of China, used the utterly absurd analogy of “shouting fire in a crowded theater” to explain his reasoning that speech in opposition to the draft during World War I was not protected free speech under the First Amendment of the United States Constitution. I note this to establish a pattern indicating Holmes contempt for liberty. (For more, see Fire in a Crowded Theater: Failing Free Speech and the Manufacture of Consent.)

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Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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