Hennings Jacobson strongly objected to the state’s requirement that he be vaccinated. He argued that “a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.” Similar arguments have been made by others around the State of Idaho in recent months.
Jacobson’s argument was presented to the U.S. Supreme Court on a cold December morning in 1904. He objected to a Massachusetts law requiring vaccination against smallpox. The Supreme Court upheld the law, saying that the U.S. Constitution “does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from all restraints.” The Court held in Jacobson v. Massachusetts, 197 U.S. 11 (1905) that the health and safety of society took precedence over Jacobson’s objections to being vaccinated. It is still the law of the land these 116 years later.
The State does have the constitutional right to require a wide range of what might seem to be coercive measures for the protection of society. Idaho Code section 39-4801 requires immunization of kids from preschool to 12th grade as a condition for attending school. Current school requirements include DTaP, Polio, MMR and Hepatitis B.
Idaho’s Clean Indoor Air Act, which is based on legislative findings that secondhand smoke causes injury to members of society, prohibits smoking in a wide range of public venues. When it was under consideration in the Legislature, many raised Jacobson-like arguments against it, but it is accepted public policy today.
The State requires most employers to provide worker’s compensation protection for the benefit of their employees. Automobile owners must carry liability insurance for the protection and compensation of others. Parents must have child safety seats for the protection of their children. We all must have and use automobile seat belts. These requirements just scratch the surface of the obligations the government imposes upon us to protect ourselves and society. The State also has the power to stem a pandemic.
There is good news on the pandemic horizon. Experience with the Covid-19 vaccines establishes that they are safe, effective and a sure way to stop the pandemic in its tracks, provided that at least 70% of the population becomes fully vaccinated. Since the first of the year, about 99% of Covid-19 deaths have been among the unvaccinated. The State can and should require people in areas threatened by the virus to get vaccinated.
The bad news is that there is no chance the Idaho Legislature would ever take effective action to protect the public from the virus by requiring vaccinations. Because only 45% of Idahoans are fully vaccinated, our people remain vulnerable to the disease.
The job of protecting our vulnerable population has fallen by default upon the private sector. Employers can and should require employees who interact with the public to get vaccinated as a condition of employment, particularly in the healthcare industry. Thanks to St. Luke’s, St. Alphonsus, Primary Health and other health care systems across the State for taking this common sense step to protect the public. On the national level, medical groups representing millions of doctors, nurses and other health care workers have done likewise. The VA is requiring front-line health workers to get vaccinated.
With the Legislature’s abdication of its responsibility to safeguard the health and safety of Idahoans, private citizens and businesses must step forward to get the job done. Otherwise, our society will fall victim to the “anarchy” that the Supreme Court said would occur if everyone could make their individual choice of whether or not to get vaccinated against a dangerous disease.
Jim Jones is a Vietnam combat veteran, who served 8 years as Idaho Attorney General (1983-1991) and 12 years as Idaho Supreme Court Justice (2005-2017). His columns can be found at JJCommonTater.com.