Home

Climate Change Project

Table of Contents

Courses

Search


Historic Public Health Cases/Vaccine Law/Police Power

Com. v. Pear, Com. v. Jacobson, 67 L.R.A. 935, 183 Mass. 242, 66 N.E. 719 (Mass. 1903)

This is a suit against Mr. Pear and others to recover a fine of $5 for refusal to submit a smallpox vaccination pursuant to a health statute.  The statute in question, R.L.c.s 137 orders all residents of the city who have not been vaccinated or revaccinated to do so due to the prevalence of smallpox.  The board of health informed Mr. Pear that he would have to be vaccinated or pay a $5 penalty.  Mr. Pear refused and was prosecuted.  Mr. Pear claimed that the statute was unconstitutional under both the United States Constitution and the Massachusetts Constitution.  The court found that the statute was not unconstitutional.  The court recognized that the Constitution of Massachusetts authorizes such police powers in order to protect public health and safety.  Mr. Pear also claimed that the court erred in not allowing him to admit testimony of medical experts who opposed vaccination.  This case was then appealed to the United States Supreme Court, which upheld the Mass. Court in the classic public health case, Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905)

Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905)

Mr. Jacobson believed that the scientific basis for vaccination was unsound and that he would suffer if he was vaccinated. The Massachusetts Supreme Court found the statute consistent with the Massachusetts state constitution, and Jacobson appealed to the United States Supreme Court. The Supreme Court examined the issue of whether involuntary vaccination violated Jacobson's "'inherent right of every freeman to care for his own body and health in such way as seems to him best . . . " The Court bifurcated this question, first considering the right of the state to invade Jacobson's person by forcing him to submit to vaccination:

This court has more than once recognized it as a fundamental principle that "persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be made, so far as natural persons are concerned."' (at 26)

With this language, the Court stated the basic bargain of civilization: an individual must give up some personal freedom in exchange for the benefits of being in a civilized society. Jacobson sought to enjoy the benefit of his neighbors being vaccinated for smallpox without personally accepting the risks inherent in vaccination. The Court rejected Jacobson's claim which it viewed as an attempt to be a free-rider on society.

The Court next considered Jacobson's right to contest the scientific basis of the Massachusetts vaccination requirement. Accepting that some reasonable people still questioned the efficacy of vaccination, the Court nonetheless found that it was within the legislature's prerogative to adopt one from many conflicting views on a scientific issue.

The Law, Science & Public Health Law Site
The Best on the WWW Since 1995!
Copyright as to non-public domain materials
See DR-KATE.COM for home hurricane and disaster preparation

See WWW.EPR-ART.COM for photography of southern Louisiana and Hurricane Katrina
Professor Edward P. Richards, III, JD, MPH - Webmaster