Note: I recently joined substack and this is my first publication there.
The Supreme Court case most often cited in justification of a state’s supposed right to require vaccines is Jacobson v. Massachusetts 97 U.S. 11 (1905). In that case Mr Jacobson was brought up on criminal charges for refusing a required smallpox vaccination authorized by Massachusetts state law. While the court affirmed the conviction, under that law the maximum punishment allowed was only a $5 fine.
So far, although Vaccinations are starting to be required for employment in some fields, there are no current state or federal laws or regulations requiring everyone to get a Covid-19 “Vaccination” in the United States, although some foreign countries are experimenting with such mandates. Despite the Unvaccinated being innocent of any legal violation, however, they are being dealt with much more harshly than the small fine that Mr. Jacobson was forced to pay. The Unvaccinated are being increasingly barred from participating in what is fast becoming a “medical apartheid” two-tier society, without even the normal protections of due process that any criminal defendant would enjoy.
It is noteworthy that Associate Justice Judge John Marshall Harlan in the opinion in Jacobson carved out a possible exception to the right of a state to require vaccination if the subject was “not a fit subject at the time, or that vaccination would seriously injure his health or cause his death.” In the current vaccination craze, there are many for whom the vaccination is not medically recommended and there is ample evidence that the current Covid-19 vaccines in use have caused many injuries to health and death. (See The Vaccine Adverse Events Reporting System (VAERS).
The only other instance in which the government can force free people to risk the well-being of their body to further a government interest is explicitly granted to the legislative branch of government in the Constitution. Specifically, Congress has the power to raise an army and send that army to war. Other than that, there is no other authority granted to government to intrude on the liberty of a free citizen, not accused of any crime, and require them to do something with their body that carries a risk of death or permanent disability or punish them if they decline to do so.
It should be noted that the Smallpox vaccine in Jacobson is a very different animal than the modern gene therapy pharmaceuticals being required today, which are not “vaccines” in the traditional sense at all. Modern Covid-19 “vaccines” are excluded from many, if not most, dictionary definitions of the word “vaccine.” Those who would seek to apply Jacobson as precedent in the current legal and scientific environment must deal with this threshold issue.
The fact that certain government agencies have recently changed the definition of a “vaccine” so that this treatment can be so classified is not binding on the courts. The Supreme Court has noted that courts must look at substance over form and are not bound by agency classifications. Azar v. Allina Health Servs., 139 U.S. 1804, 1812 (2019) (noting that “courts have long looked to the contents of the agency’s action, not the agency’s self-serving label.”)
Few courts have grappled with the question of what constitutes a “vaccine,” but of those that have, most have used a microorganism definition. See Blackmon v. American Home Products Corp., 267 F.Supp.2d 667, 674 (S.D. Tex. 2003) (relying on definition of vaccine in Dorland’s Medical Dictionary 1799 (27th ed.1988)(“a suspension of attenuated or killed microorganisms”) and Webster’s 9th New Collegiate Dictionary 1301 (9th ed.1991) (“a preparation of killed microorganisms, living attenuated organisms, or living fully virulent organisms”).
That definition in no way describes the mRNA technology now in use in the major Covid-19 “vaccines” produced by Pfizer and Moderna. There are no “killed microorganisms, living attenuated organisms, or living fully virulent organisms” in this vaccine. Instead, it contains “a synthetic messenger RNA” (mRNA) that modifies the body’s genes and instructs them to make a “spike protein” similar to the one that the virus contains.
This new technology is in every sense still experimental, including legally. The human body would never create these spike proteins without this genetic modification and the long-term safety of this new technique has not been established. For these reasons the current “vaccines” continue to be given under an Emergency Use Authorization (EUA) from the FDA. This is despite any false claims that the Pfizer shot is “fully approved.”
The “approved” Comirnaty version of the Pfizer vaccine has never actually been produced and is not currently available to the public in the United States. The reason, no doubt, is that Comirnaty would not give the drug manufacturers the same legal protection against liability that drugs given under a EUA enjoy. The FDA, which is an agency totally captured by Big Pharma interests, allowed this legal fiction to be created to give the drug pushers a cheap, if false, headline.
That the word “vaccine’s” definition is elastic and has been recently expanded to accommodate new technology would be nothing more than a cultural curiosity, except that if Jacobson applies to all vaccines without any balancing required, every expansion of the word “vaccine” triggers an accompanying expansion of government power and diminution of individual liberty for every American.
Shouldn’t the courts review the implications of these recent technological changes, instead of continuing to march in the lockstep of the 115-year-old precedent of a medical case from the horse and buggy era? There can be no more fundamental right for a person to have than the choice of whether he wants his own genetic code overwritten, without being discriminated against and punished if he chooses not to.
To balance the state and individual interests, it is not necessary to know the exact infection mortality rate of Covid-19, although it is generally agreed to be something less than 1%. Viruses have a range of mortality rates ranging from 100% fatal (rabies) to essentially zero. Smallpox in the early 20th Century had a mortality rate of up to 30% or more. The government’s interest in stemming the spread of viruses through coerced medical procedures is logically more compelling with more fatal viruses and less compelling with less fatal viruses.
Using the Jacobson precedent for an illness that is approximately 50 times less fatal seems like a stretch, especially when you consider the advances in medicine over the last 115 years. In fact, there are many early treatments available for those who get Covid-19 that could significantly reduce mortality even further, although regrettably many of them have been suppressed by government action. This has apparently been done so that the “vaccines” could get a EUA approval, since a EUA can not be granted if there is an effective alternative treatment.
Further, as the new less virulent “Omicron” variety has become the dominant strain in the United States, Covid mortality has fallen even further. Multiple scientific reports have indicated that, despite being more contagious, Omicron actually causes much less severe illness, with virtually no reported deaths “from” it, although perhaps a few “with” it. Other recent studies have shown that those who have been “vaccinated” had little protection against the new variety and may, as the vaccine’s effectiveness declines, actually be more likely to catch the new variety than those who are unvaccinated!
These inconvenient facts raise compelling Equal Protection questions. If the “Vaccinated” are just as likely, or perhaps even more likely, to catch and transmit the virus, on what legal basis can the Unvaccinated be discriminated against? This is the very issue I have raised in my current federal lawsuit against the NYS Health Department. (Strong v. Zucker)
Lower level federal courts seem to be trying to read the tea leaves in Chief Justice Robert’s dictum in the recent case of South Bay United Pentecostal Church, Et Al., v. Gavin Newsom, Governor of California, Et Al. 592 U.S. __ (2021) in which he said, “I adhere to the view that the ‘Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States.’ But the Constitution also entrusts the protection of the people’s rights to the Judiciary… Deference, though broad, has its limits.”
The dangers of blindly following the Jacobson precedent were shown in the case of Buck v. Bell 274 U.S. 200 (1927) in which the court used Jacobson to uphold a Virginia law that authorized the involuntary sterilization of “feeble minded” persons in state institutions. As Justice Oliver Wendell Homes infamously opined in that case, “Society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.” It is clear that a law of such barbarity would never pass scrutiny today, nor should such a misreading of Jacobson.
Justice Harlan himself foresaw the possible need for future judicial oversight writing that, “…it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.”
Clearly the “limits of deference” are being reached in many Draconian local laws and it is time for the court to revisit the Jacobson precedent, strike down state laws that are “arbitrary and unreasonable” and protect those who are being unjustly discriminated without any scientific basis.
This article was adapted from my legal memorandum in support of a motion to enjoin the current NYS Health Department regulations and practices. Links to that memo and other legal papers filed in the case of Strong v. Zucker currently in the Federal District Court in Western New York, can be found at my website: