What do Pennsylvania’s Unconstitutional Lockdown Orders,
Jacobson v. Massachusetts and our SB277 Case have in common?
Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905) is a case which has ruled public health police powers over the past 100 years. However, while this case has been used to justify state governments making laws in times of emergency regarding vaccines, with little regard for civil liberties, AVFCA has long argued that the details of this case, do not warrant such and that times have evolved.

At the time the Revised Laws of that Commonwealth, c. 75, § 137, stated that “the board of health of a city or town if, in its opinion, it is necessary for the public health or safety shall require and enforce the vaccination and revaccination of all the inhabitants thereof and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit five dollars.” The Jacobson line of cases articulated that (a) a self-contained township; (b) could require an individual to be vaccinated against one highly contagious, airborne disease; (c) or pay a fine; (d) during a proven-to-be- serious outbreak of the same disease; (e) before the era of widespread travel made such mandates less meaningful. Jacobson was also decided decades before the Supreme Court articulated our modern constitutional construct for handling bodily autonomy cases.

The city of Cambridge, MA, put this law into effect, among adults, for the smallpox vaccine. Jacobson refused to get vaccinated, and refused to pay the $5 fine. Jacobson ultimately lost the case and his appeal, but in turn was not forced to be vaccinated. He was just forced to pay the $5 fine. However, Jacobson v. Massachusetts, has been used in numerous cases to enforce broad police powers by public health departments and cities across the nation.

In 2016, A Voice for Choice brought forward a lawsuit, Love v California,to argue that removing the Personal Belief Exemption from school vaccination requirements was unconstitutional in three ways: Bodily Autonomy, Parent Rights and Education is a fundamental right, each of which had been upheld by the Supreme Court individually. Specifically, AVFC argued that the court must adhere to strict scrutiny when deciding the merits of the case. We knew the other side would use Jacobson v. Massachusetts, to argue their case, so we preempted that by arguing that the courts and the world has evolved over the past 100 years, and that strict scrutiny had to be applied. While the judges in our case did not agree with this argument, last month Judge, William Stickman IV, from the United States District Court for the Western District of Pennsylvania, issued an opinion [Read Opinion Here] declaring the Pennsylvania Shelter In Place and Lockdown Executive Orders unconstitutional, specifically discussing how Courts have evolved over the past 100 years since the Jacobson case to be more vigilant in the protection of civil liberties and the need to apply strict scrutiny to the protection of civil liberties. While this opinion is not published and from a lower court, so will not be able to be cited, it gives hope that other judges will follow suit and apply current day constitutional jurisprudence when deciding on cases deliberating on civil liberties and public health and vaccines.

For those not wanting to read the 66 Pennsylvania page opinion, here are some key excerpts regarding the standard of review it would apply to the case:

“Jacobson was decided over a century ago. Since that time, there has been substantial development of federal constitutional law in the area of civil liberties. As a general matter, this development has seen a jurisprudential shift whereby federal courts have given greater deference to considerations of individual liberties, as weighted against the exercise of state police powers. That century of development has seen the creation of tiered levels of scrutiny for constitutional claims. They did not exist when Jacobson was decided. While Jacobson has been cited by some modern courts as ongoing support for a broad, hands-off deference to state authorities in matters of health and safety, other courts and commentators have questioned whether it remains instructive in light of the intervening jurisprudential developments.” Page 13

“Over the last century, federal courts have developed a regimen of tiered scrutiny of examining most constitutional issues-rational basis scrutiny, intermediate scrutiny and strict scrutiny. The appropriate standard depends on the nature of the claim and, specifically, the nature of the right allegedly infringed.” Page 11

“As the Supreme Court has observed “[t]he Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.” Home Building & Loan Ass’n. v. Blaisdell, 290 U.S.398, 425 (1934).” Page 29

“The [Stay at Home] orders are such an inversion of the usual American experience that the Court believes that no less than the highest scrutiny should be used….” Page 47

“The Court declares, therefore, that the stay-at-home components of Defendant’s’ orders were and are unconstitutional. Board population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless the government can truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an important government end. The draconian nature of a lockdown may render this a high bar, indeed.” Page 48

While this opinion does not overrule Jacobson v Massachusetts, it gives hope that more judges will understand the necessity of applying strict scrutiny to cases where civil liberties are infringed by public health orders, so that cases like A Voice for Choice’s SB277 case would have had a fair chance.

If you found this information helpful and appreciate the work A Voice for Choice Advocacy is doing, please support us by making a donation today.