Michael Willrich’s Pox is a history of the fight against smallpox near the end of the 19th century in the United States. In particular, it emphasizes the resistance to vaccination by a large segment of the American public, and the redefinition of liberty that ensued from the conflict.
At that time, prior to any regulation of the biologics industry, the manufacture of vaccines lacked quality control, and their use carried the risk of pain, disfigurement, and even death from contaminated material. Vaccine samples “crawled” with bacteria, sometimes spreading syphilis or tetanus. Moreover, many people feared compulsory removal to “pesthouses,” and rightly so, since conditions there were abhorrent, and in any event, only the lower classes were forced there for isolation. Other factors contributing to resistance included medical beliefs, religious tenets, parents’ insistence on their rights to govern their own children, and “dearly held notions of personal liberty.” Because smallpox outbreaks usually began in black communities (owing to the poverty, crowding, racism by the health care profession who often refused to treat blacks, and the itinerant nature of many blacks looking for work), whites did not want to undergo vaccination for what they perceived to be a black disease, nor did they want to use their tax money to subsidize a vaccine. Blacks themselves particularly resisted vaccination, as did recent immigrants to the U.S., since they did not trust the authorities. Another complicating issue was the fact that there were two types of smallpox: the classic, dangerous smallpox, or variola major, and a mild variety, variola minor, which was not life-threatening. In the case of the latter, the vaccine could pose more risk than the disease itself.
Because of all the resistance, coupled with the medical profession’s awareness of the danger of the disease, force was often used to check for evidence of, and administer, the vaccines. (Some local doctors made matters worse by accepting bribes to provide vaccination certificates; therefore only the vaccine scar was accepted as proof of vaccination.) Blacks in particular were likely to be roughed up–many were handcuffed and vaccinated at gunpoint. And in a precedent-setting development, federal health officials persuaded many employers to deny work in cases of noncompliance. Willrich observes that this may have laid the foundation for future agreements to control labor conditions.
The most interesting part of the story, in my opinion, is the battle that ensued in the courts about where the line should be drawn between the states’ inherent “police power” and individual liberty, and indeed how personal liberty would be defined in the changing culture of the nation. Some contend this fight affected the fate of our country as much as the Revolution or the Civil War: what limits should apply to new laws and restrictions governing the fields of social and economic regulation? What was the extent of fundamental individual liberties? Does the state ever have the right to encroach on the inviolability and integrity of a citizen’s body? How should the modern state balance liberty of the individual against the greater good of society? When is “clear and present danger” adequate justification for an increase in police power by the state?
The cases brought by citizens against compulsory vaccination, and in particular, Henning Jacobson v. Commonwealth of Massachusetts (197 U.S. 11, 1905), set standards still invoked today for an understanding of liberty in America. The defendants challenged the state’s attempt to compel them to accept vaccination as a violation of their 14th Amendment right to liberty without “due process of law.” (The state’s jurisdiction was not questioned; rather, the question put to the Court was whether the state had overstepped its own authority.) In upholding the state’s power to compel vaccination, Justice John Marshall Harlan wrote:
[T]he 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. 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. [my emphasis]”
He also added a caveat, however:
…it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.
…Extreme cases can be readily suggested. Ordinarily such cases are not safe guides in the administration of the law. … We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it as so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned. ‘All laws,’ this court has said, ‘should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression or absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of that character. The reason of the law in such cases should prevail over its letter.'”
The Jacobson ruling had wide ramifications and was hailed both by those in favor of an expansive police power and by those who emphasized civil liberties. However, a few months later, the Court seemed to reverse itself with its ruling in the famous case Lochner v. New York (198 U.S. 45, 1905). (Justice Rufus Peckham wrote the opinion; Justice Harlan along with Justice Oliver Wendell Holmes, Jr. filed dissents.) Lochner juxtaposed the right of private businesses to set up any kind of contracts they wanted against the concerns of bakers for their health and welfare. The Court found that the police power did not extend to the power to interfere with private contracts (even on the ground of seemingly sound public policy), insofar as, it opined, health hazards are often just a natural part of life, rather than a function of conditions that can be manipulated by employers. Over the next three decades, the Court employed the Lochner doctrine of “liberty of contract” to strike down numerous attempts by state governments to exercise their police power to improve working conditions or protect consumers. In other words, while Jacobson expanded police power in some circumstances, Lochner went the other direction.
Nevertheless, Willrich contends that many legal scholars continued to look to Jacobson rather than Lochner as “the authoritative statement of the almost unlimited extent of the police power in the United States.” The ensuing battle between substantive and procedural interpretation of the 14th Amendment did not end until the late 1930’s when the Court endorsed Franklin Roosevelt’s regulatory priorities. [The phrase “substantive due process” is often used to describe the Court’s approach with Lochner and similar cases of that era, using the due process clause of the 5th or 14th amendments to invalidate the substance of legislation rather than merely the procedures embodied therein or those used to enact it.]
Willrich observes that Jacobson has been cited as precedent numerous times in Supreme Court cases to defend extraordinary exercises of government power, including sterilization laws and warrantless entry. It has also, however, provided authority for the revolution in civil rights, especially with respect to bodily autonomy and integrity, as in cases of reproductive rights and medical privacy.
Evaluation: This is a fascinating and timely story not often told about the behavior of both the government and the public in the face of a widespread biological threat, and about the evolution of law that arose because of it. While the specifics of the smallpox epidemic provided more information than I may have preferred, I applaud the author’s meticulous documentation. On the other hand, while I can read about the Fourteenth Amendment all day long, some other readers might think that section of the book too detailed. In sum though, I would say this book has something to interest a wide variety of readers, and is a worthy contribution to our historical record.
Published by Penguin Press, 2011