"A Changed War"

 Between 1901 and 1903, the city of Boston, Massachusetts experienced its last outbreak of smallpox. There were 1596 cases and 270 deaths in a city with a population of roughly 561,000. The attack rate was 3 cases per thousand and the case fatality rate was 17 percent. Blacks and immigrants were overrepresented and the case fatality rate in unvaccinated people was twice that of the vaccinated.

Massachusetts was at the time one of 11 states that had compulsory vaccination laws. The Anti-Compulsory Vaccination League endeavored to have the state law overturned but failed. A pastor in Cambridge, Henning Jacobson, sued Massachusetts because he said he had had a bad reaction to vaccination in Sweden before he immigrated to Massachusetts and therefore refused vaccination. His case was heard in 1905 by the Supreme Court.

By a 7-2 majority, the Supreme Court decided that the Massachusetts law did not violate the Fourteenth Amendment. The Court held

The Court held that "in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand" and that "[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others." [Entire quote from here.]

The Jacobson decision has been a precedent decision in several cases during the Covid-19 pandemic, regarding facemasks and stay-at-home orders. Jacobson supported the police power of the state established under the Tenth Amendment but also the limits of such power. Both the police power and its limitations are real and there have been multiple cases regarding immunization over the past century, and especially the past 30 years, that have come before the courts for decision.

The present surge of the Delta variant of SARS-CoV-2 and the reluctance of many Americans to be vaccinated for it has led to another sharp rise in Covid-19 cases in the United States. Coupled with the finding that the vaccinated can be infected and infect others readily because of the mutations in the Delta variant, we have arrived at yet another branch point in the pandemic. Masks are returning and future lockdowns may occur. This is indeed a “new war.” 

What is required is a new effort to get everyone vaccinated (the vaccines continue to offer robust protection against severe disease, hospitalization, and death), attend to proper ventilation in indoor spaces, avoid crowds (Chicago, Lollapalooza was insanely stupid), and expand testing. We have the tools. Per Jacobson, states (where police power resides) can take measures to mandate vaccines and make entry into public places require valid proof of Covid-19 vaccination. The anti-vaxxers and the libertarians and the Krazy Kult that used to be the Republican party will likely howl and potentially cause trouble. An organized society, however, cannot allow itself to be ruled by an out of control minority.