History and the law are on vaccination’s side

Vaccine resisters rally earlier this month against SB 277, which goes to the Senate Judiciary Committee on Tuesday.
Vaccine resisters rally earlier this month against SB 277, which goes to the Senate Judiciary Committee on Tuesday. The U-T San Diego

In the late 1800s, a resurgence of smallpox coursed through the eastern United States. The vaccination rate had fallen off – inoculation in those days was rudimentary and risky – so some states began granting towns the authority to mandate immunization.

Americans were conflicted; then as now, many distrusted government intervention. So it was no surprise when, in 1902, a Swedish-born minister in Cambridge, Mass, refused to vaccinate his children.

The Rev. Henning Jacobson said the mandate violated his liberty and that vaccines had made him and his sons sick; the Cambridge health board fined him the equivalent of $140 and told to immunize his family anyway, for the community’s safety. Jacobson appealed all the way to the U.S. Supreme Court, and his defeat in Jacobson v. Massachusetts became the first in a long line of court decisions to establish that individual rights can’t trump public health.

The law is clear as the effort to toughen California’s vaccine law moves Tuesday to the Senate Judiciary Committee. Still, the anti-vaccine movement remains as stubborn and beset with bad information as it was in the Rev. Jacobson’s day.

In the latest tack, the resisters have invoked the ACLU, citing an April 2 letter from the legislative director of the ACLU of Northern California. In it, the ACLU’s Kevin Baker shares concerns about the first draft of the vaccination bill, Senate Bill 277, noting that, if it passes, unvaccinated children without a medical exemption would be limited to home schools.

“Unlike other states,” Baker notes, “public education is a fundamental right under the California Constitution.” That means the state must show a “compelling government interest” to bar unvaccinated children from classrooms.

More importantly, the letter says, the Legislature has to show that SB 277 is the “least restrictive” means of achieving that compelling interest. That can be done if the bill is properly buttressed, Baker told a member of The Sacramento Bee editorial board. And, he said, amendments added last week to expand homeschooling options “are a step in the right direction.”

But make no mistake, he added: “The ACLU doesn’t contend that my right to do whatever I want with my kid trumps your right to be free of infectious disease.”

Baker and others are right to want to inoculate SB 277 from potential legal challenges. Though its co-authors, Sens. Richard Pan and Ben Allen, are, respectively, a doctor and a lawyer, the bill’s opponents are well-funded and intense.

The Judiciary Committee should give the legislation a meticulous going-over. But they shouldn’t confuse holes in the legalese with bogus claims about the bill’s constitutional soundness. The courts already have found that it’s perfectly constitutional for governments to require schoolkids to get vaccinated, as long as they offer a medical exemption.

States don’t even have to offer a religious opt-out, though most do. (Very few religions come close to proscribing vaccines, incidentally; even the founder of the Christian Science movement, Mary Baker Eddy, told her followers to vaccinate if the law required and pray away any ill effects later.) California is within its rights in axing the personal belief exemption that has so jeopardized our public health.

Vaccination against contagious disease isn’t just good health, it’s a societal duty – even when you’re offended or conflicted or afraid. No man is an island; there’s a social contract.

It shouldn’t take a law for the modern Henning Jacobsons of California to see that, but apparently the more things change, the more they stay the same.

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