Brandeis Now, Brandeis University
By Jarret Bencks May 4, 2020
When the United States suffered a great wave of smallpox outbreaks at the turn of the 20th century, the public health field was in its infancy.
Compulsory vaccinations were haphazard and often discriminatory. Many people did not trust the vaccines or the local governments doing the vaccinating.
Does any of this sound familiar folks?
At the time, the federal government passing nationwide vaccination measures would have been unthinkable.
The events of this time, known as the Progressive Era, paved the way for laws and regulations still in force today.
Michael Willrich, Professor of History, wrote about this period in American history in his award-winning book, “Pox: An American History.”
In the article, Willrich took some time to discuss the smallpox outbreaks and their relevance to today’s COVID-19 pandemic.
Question #1
What are some of the laws and rules established during the smallpox outbreaks of the early 20th century that still apply today?
Willrich stated: In the wake of the smallpox epidemics of the late 19th and early 20th century and the controversies they generated, Congress enacted what was called the Biologics Control Act, which lay the foundation for the vaccine safety regulations that are still in effect today.
It established a new system of federal licensing and regulation of vaccine production, ultimately leading to safer production and more effective vaccines, and it paved the way for greater regulation later in the century.
Question #2
What role did the U.S. Supreme Court play?
Willrich answered: In 1905 the Supreme Court ruled on the constitutionality of compulsory vaccination measures in Jacobson vs. Massachusetts.
In upholding the legitimacy of compulsory vaccination, the Supreme Court compared the right to enact public health measures during an epidemic to the right of a government, any government, to defend its people from a military invasion.
And they compared the right to compel individuals to be vaccinated, whether they wanted to or not, to the power to conscript the people in order to raise an army. These are very strong statements of public health authority.
However, the Court emphasized that these measures must not be arbitrary and unreasonable, that they must address legitimate public health concerns, and that in some extreme cases public health regulations might be “so arbitrary and oppressive” as to justify judicial review.
That is an important standard, and Jacobson remains the major case today in public health law, more than a century later.
Question#3
Why was there resistance to compulsory vaccination during these outbreaks?
Willrich responded: The smallpox vaccine had been around for more than a century by this time, but vaccines were mostly produced by unregulated commercial enterprises.
The governments were compelling people to get vaccinated, but those same governments were not regulating vaccine production to ensure that vaccines were safe and effective. Again folks, does any of this sound vaguely familiar?
In the U.S., the vaccines on the market in the early 20th century were mixed in terms of quality and safety.
Some of them were connected to tetanus outbreaks, such as in 1901 in Camden, New Jersey, when nine school children died of tetanus following a compulsory vaccination order. So, there were concerns about vaccine hazards that were not negligible.
Also at this time, there was no workman’s compensation. Ordinary working people could expect to be sick for a few days, to have sore arms, to be unable to go to work for a couple of days after vaccination, and this was considered a violation of their right to support their families.
Then there were groups of people with reasons to harbor opposition. African Americans were suspicious of white health officials.
Christian scientists and other faith groups that believed in either natural healing or community or individual control over health decisions had strong opposition to the mandates.
Question #4
How were public health measures determined and carried out?
Willrich: Public health measures then were almost entirely the province of state and local governments. The vaccine orders were being carried out by local boards of health or state law, under what was known as the police powers — a reservoir of powers going back to the Anglo-American common law that gave governments the authority to interfere with individual liberty or property rights in the name of the general welfare and the public well-being.
Question #5
How was compulsory vaccination carried out in discriminatory ways?
This one really scares me.
Willrich: Ultimately, compulsory vaccination was carried out in many communities in a way that was discriminatory against African Americans and immigrant groups. There were examples of compulsory vaccination being carried out with force in immigrant tenement districts in cities like Chicago, New York and Boston.
Local governments created “virus squads,” teams of police and vaccinators that cordoned off city blocks, entered neighborhoods in the middle of the night, and went door to door, checking people to see if they had vaccination scars proving they had recently been vaccinated. Police tore infected children from their mothers’ arms and took them to isolation hospitals called “pesthouses.”
Question #6
What was the role of the federal government during these epidemics?
Willrich: It was very different from today, where people are looking to the White House for leadership. Even in the era of Teddy Roosevelt, who was the president during these smallpox epidemics, very few people looked to the president for leadership on how to fight a disease.
This was before the extraordinary growth of the federal government in the 20th century. At the time, it would have been foreign to the way of American thinking about politics and government to have the federal government passing nationwide vaccination measures.
So let’s move on to the second big question.
Can the government legally force you to wear a mask?
By: Al Tompkins in Poynter.org
June 22, 2020
Well unfortunately, according to the article, the answer is “yes.” In a pandemic, governments have the authority to do a lot of things that would otherwise be questionable.
Think of it like this: The government has the right to ban smoking in public places because your smoking can affect my health. And some places have signs that say, “No shirt, no shoes, no service.” Just add “no mask” to the sign.
However, there are exceptions. If you cannot wear a mask for health reasons or if you are in a “protected class,” then you might get a mask pass. Syracuse.com turned to a prosecutor for advice:
“All businesses have the right to refuse service so long as it is not violating one of those protected classes,” said Robert Mascari, chief assistant district attorney in Madison County. “You can’t refuse to serve me because I’m half Italian and half Irish. You can refuse to serve me if I’m being an idiot.”
He goes on to say, “Store managers are obligated to keep their employees and customers safe and they have the power to deny entry to people who might cause an unsafe condition.
“If store policy says X and I don’t want to follow that, you’re not allowed in the store,” he said.
However, a store policy doesn’t carry any criminal penalties, and law enforcement officials say they’re not citing anyone for not wearing a mask.
Now many people have taken to claiming they can’t wear a mask due to a disability.
Doron Dorfmann, a Syracuse University law professor who specializes in disability law, told Syracuse.com:
There may be legitimate disabilities that would prevent someone from wearing a mask: someone with autism who has sensory issues, for example, or someone with a respiratory problem for which a mask would make breathing difficult.
Under the (federal Americans with Disabilities Act), he said, store managers must be cautious in questioning anyone who says they have a disability. The manager, for example, can’t ask what the disability is.
Shop keepers can ask two questions of that person, Dorfman said: “Is (not wearing a mask) an accommodation? What kind of benefit do you get from not wearing a mask?”
When a local or state government issues a “must wear” order, it gives individual businesses a lot of legal cover to enforce mask requirements. Without the government’s order, an individual business might run into some trouble denying customers who claim to have disabilities that prevent them from wearing masks.
The National Law Review warned that businesses that exclude non-face-mask-wearing customers who claim a disability have to reach a pretty high legal bar:
The ADA permits a retailer to deny goods or services to an individual with a disability if their presence would result in a “direct threat” to the health and safety of others, but only when this threat cannot be eliminated by modifying existing policies, practices or procedures or permitting another type of accommodation.
Whether a customer poses direct threat is an individualized, fact-sensitive inquiry. If a business does not have a clear policy of turning away customers who refuse to wear face masks, and turns away an individual for that reason, the business must be prepared to identify how/why that individual’s specific, observable, condition/behaviors made them a “direct threat”.
So, what would that “direct threat” look like? The ADA says that a direct threat is “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies.”
It might be difficult to deny service to a person who does not have COVID-19 symptoms. The Law Review said:
For example, if the person exhibited generally recognized symptoms of COVID-19 (such as aggressive coughing compounded with profuse sweating or visible difficulty breathing), refusal of service without a mask on an individualized basis may be justifiable.
Conversely, a business could be hard-pressed to successfully argue that a customer without a face mask posed a “direct threat” if he or she was asymptomatic or if there was some form of accommodation that would have allowed the person to be served (e.g., allowing someone to wear a scarf instead of a mask).
Can an employer force you to wear a face mask?
The answer again is “yes,” under Occupational Safety and Health Administration statutes that say:
“Employers may choose to ensure that cloth face coverings are worn as a feasible means of abatement in a control plan designed to address hazards from COVID-19. Employers may choose to use cloth face coverings as a means of source control, such as because of transmission risk that cannot be controlled through engineering or administrative controls, including social distancing.”
If the requirement is for you to wear personal protective equipment, a higher level of protection, then the employer must furnish it (see OSHA’s PPE standard 29 CFR 1910.132). But the employer is not required to give you a cloth face mask.
So now we come down to the really big question.
Do you have a constitutional right not to wear a mask?
The answer is “no.”
Governments have the power to regulate in the name of safety. In a pandemic, state governments are the key players.
The American Bar Association explained:
Under the U.S. Constitution’s 10th Amendment and U.S. Supreme Court decisions over nearly 200 years, state governments have the primary authority to control the spread of dangerous diseases within their jurisdictions.
The 10th Amendment, which gives states all powers not specifically given to the federal government, allows them the authority to take public health emergency actions, such as setting quarantines and business restrictions.
As a reminder, the 10th Amendment says, “Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
States also retain significant emergency powers to regulate public safety and health through their own state constitutions and legal precedent dating back to the early 1800s.
The federal government’s quarantine powers are limited to those things the feds control, like ports of entry, airspace and such.
States each have specific laws that set out who has what authority.
But there is a legal argument around something called “the Preemption Doctrine” (if you really care, see the Supremacy Clause of the Constitution. U.S. Const. art. VI., § 2).
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The preemption doctrine refers to the idea that a higher authority of law will displace the law of a lower authority when the two authorities come into conflict.
Let’s say a state says, “We are in an emergency and you have to wear a mask” (as California did). A local government can’t come along and say, “Forget what the state said.”
Generally, then, an act of Congress preempts state constitutions and an FDA ruling preempts state court rulings and so on.
Now I don’t necessarily agree with that, but, that is the current interpretation.
Might make for a good show in the future.
So there you have it folks. Can the government make you get a vaccine? The answer is yes.
Can they make you wear a mask? Again, the answer is yes.
Is this the first time we have been down this road? As you can see, history tell us that the answer is absolutely not.
So what do you think folks?