In its 1905 precedent setting split decision in the case of Jacobson v. Massachusetts,1 the U.S. Supreme Court, by a 7-2 vote, ruled that state legislatures could use police powers to force a minority of dissenting citizens to use smallpox vaccine for what medical doctors and government officials judge to be the greater good of the majority. Those voting with the majority were justices John M. Harlan, Henry B. Brown, William R. Day, Melville Fuller, Oliver W. Holmes, Jr., Joseph McKenna, Edward D. White. The dissenting votes were cast by justices David J. Brewer and Rufus W. Peckham.2
Those early 20th century justices based their decision in part on a false premise argued by lawyers representing public health officials, who argued that medical doctors could predict ahead of time who will be injured or die from smallpox vaccination. Doctors have never been able to predict with any certainty who will be injured and die from vaccination.
In affirming the constitutional right of states to use police powers to enact public health laws, the Supreme Court was also reaffirming the roles of state government versus the federal government in public health law. Anything not defined in the US Constitution as a federal responsibility has traditionally defaulted to the states. Public health was not defined in the Constitution as a federal responsibility so public health laws have always been state laws and this is why vaccination laws vary from state to state.3 4
A Utilitarian Rationale Turned Into Law
It is important to note that the Supreme Court ruling in Jacobson v Massachusetts at the turn of the 20th century was clearly based on a utilitarian rationale that a minority of citizens opposing vaccination should be forced to get vaccinated in service to the majority.
Utilitarianism was a popular ethical theory in the late 19th and early 20th century in Britain and the U.S. and was used by government officials as a mathematical guide to making public policy that ensured “the greatest happiness for the greatest number of people.”5 6 Today, utilitarianism has a much more benign and lofty name attached to it: “the greater good.”
Minorities at Risk When State Employs Militant Utilitarianism
Perhaps that is because utilitarianism went out of fashion in the mid-20th century after, beginning in 1933, the Third Reich employed the utilitarian rationale as an excuse to demonize minorities judged to be a threat to the health and well-being of the State.7 Enlisting the assistance of government health officials,8 9 10 11 the first minority to be considered expendable for the good of the State were severely handicapped children, the chronically sick and mentally ill, the “useless eaters” they were called.1213
And when the reasons for why a person was identified as a threat to the health, economic stability, or security of the State grew longer to include minorities who were too old or too Jewish or too Catholic or too opinionated or simply unwilling to believe what those in control of the State said was true… as the list of those the State branded as persons of interest to be demonized, feared, tracked, isolated and eliminated grew, so did the collective denial of those who had yet to be put on that list.14 15
Jacobson v Massachusetts Used to Embrace Eugenics in U.S.
Prophetically, in 1927, U.S. Supreme Court Justice Oliver Wendall Holmes, Jr. invoked the Jacobson v. Massachusetts “greater good” utilitarian decision to justify using the heel of the boot of the State to force the sterilization of a young Virginia woman, Carrie Buck, who doctors and social workers incorrectly judged to be mentally retarded like they said her mother was.16 In a chilling statement endorsing eugenics,17 Holmes revealed the morally corrupt core of utilitarianism that still props up mandatory vaccination laws in the U.S.
Pointing to the Jacobson vs. Massachusetts decision, Holmes declared that the state of Virginia could force Carrie Buck to be sterilized to protect society from mentally retarded people. Coldly, Holmes proclaimed, “three generations of imbeciles are enough” and “The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes.”18
The 1905 U.S. Supreme Court majority made fundamental scientific and ethical errors in their ruling in Jacobson v. Massachusetts. It is clear that medical doctors cannot predict ahead of time who will be injured or die from vaccination and that is a scientific fact.19 20
Utilitarianism Is A Discredited Pseudo-Ethic
Utilitarianism is a discredited pseudo-ethic that has been used to justify horrific human rights abuses not only in the Third Reich21 22 but in human scientific experimentation23 and the inhumane treatment of prisoners and political dissidents here and in many countries,24 25 26 27 which is why it should never be used as a guide to public policy and law by any government.
Although we may disagree about the quality and quantity of the scientific evidence used by doctors and governments to declare vaccines are safe at the population level, at our peril do we fail to agree that, while the State may have the power, it does not have the moral authority to dictate that a minority of individuals born with certain genes and biological susceptibilities give up their lives without their consent for what the ruling majority has judged to be the greater good.
Our Lives Are Defined by the Choices We Make
The journey we take in this life is defined by the choices we make. And if we are not free to make those choices, the journey is not our own. And the choices we make that involve risk of harm to our physical body, which houses our mind and spirit, those choices are among the most profound choices we make in this life, which is why we must be free to make them.
Note: This article was originally published at www.nvic.org as part of a larger article titled “Vaccination: Defending Your Right to Know and Freedom to Choose.”
1 Jacobson v. Massachusetts. 197 U.S. 11(1905). LSU Law Center.
2 Jacobson v. Massachusetts. Wikipedia
3 National Vaccine Information Center. State Law and Vaccine Requirements. NVIC.org.
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11 United States Holocaust Memorial Museum. Interview with Dr. Michael Grodin on the role of medical doctors in the Third Reich and the ethical duty of doctors today. Mar. 1, 2012.
12 Micozzi MC. National Health Care: Medicine in Germany, 1918-1945. The Freeman Nov. 1, 1993.
13 Mostert MP. Useless Eaters: Disability as Genocidal Markers in Nazi Germany.The Journal of Special Education 2002.
14 University of South Florida. A Teacher’s Guide to the Holocaust: Victims. Florida Center for Instructional Technology 2013.
15 United States Memorial Holocaust Museum. Martin Niemoller (1894-1984).
16 Encyclopedia of Virginia. Buck v. Bell (1927).
17 Black E. The Horrifying American Roots of Nazi Eugenics. HistoryNews Network (George Mason University) Nov. 24, 2003.
18 Supreme Court Upholds Sterilization of the Mentally Retarded – Buck v. Bell, 274 U.S. 200, 475 Ct. 584, 71L, Ed. 1000 (1927). LSU Law Center.
19 Institute of Medicine Committee to Review Adverse Effects of Vaccines. Adverse Effects of Vaccinations: Evidence and Causality. Evaluating Biological Mechanisms of Adverse Events: Increased Susceptibility. Washington, DC: The National Academies Press 2012.
20 DHHS. Vaccine Injury Compensation Program Data and Statistics. HRSA Updated monthly.
21 Schultz JJ. The Doctor’s Dilemma: The Utilitarian Medical Ethics of Physician Karl Brandt.University of Toronto Medical Journal 2013; 90(4): 176.
22 Annas GJ, Grodin MA. The Nazi Doctors and the Nuremberg Code. Oxford University Press 1992.
23 Stobbe M. Shameful past of medical trials prompts new US investigation. The Independent Mar. 6, 2011.
24 Hornblum AM. They were cheap and available: prisoners as research subjects in twentieth century America. Brit Med J 1998; 3(15): 1437-1441.
25 Walter M. Human experiments: First, do harm. Nature Feb. 8, 2012.
26 Buncombe A., Lakhani N. Without consent: How drug companies exploit Indian ‘guinea pigs.’The Independent Nov. 14, 2011.
27 Katz E. Human Rights Abuses in Mental Institutions Common Worldwide, Says Perlin.University of Virginia School of Law Feb. 27, 2008.