By - June 02, 2022
The argument that mandatory vaccinations are unconstitutional has been around for a long time. For example, in 1922, the city of San Antonio, Texas required smallpox vaccinations before school-aged children could attend public or private school. Such a mandate was not, however, well-accepted by some students and their families. A lawsuit, Zucht vs. King, brought on behalf of student Rosalyn Zucht, argued that the ordinance violated the due process and equal protection clauses of the Fourteenth Amendment. Upholding the San Antonio ordinance, the U.S. Supreme Court ruled that such ordinances confer not arbitrary power, but only the broad discretion required for the protection of the public health and that prior Supreme Court precedent supported the mandate.1,2
In 1721, Zabdiel Boylston, an American physician from Boston, MA, inoculated nearly 250 people, including his own son and neighbors, with an extract prepared from the lesions of smallpox victims.3 However, Boylston was villainized when six of his recipients died. Later though as the smallpox epidemic ravaged Boston, among the many survivors were people who Boylston inoculated.4
For centuries, smallpox was among the world’s most dreaded diseases, killing as many as 30% of patients who contracted the virus, particularly children. Fortunately, Boylston’s inoculation experience opened a door for the smallpox vaccine; pioneered by English physician Edward Jenner in 17965 the smallpox vaccine decreased its mortality rate significantly. Many Western countries and some U.S. cities adopted mandatory vaccination against smallpox in 19th century, to control the spread of the disease. Despite the drop in disease rates during this time due to vaccination, suspicion remained among some populations leading to devastating epidemics when the disease reemerged, particularly in populations with lower vaccination rates.
Vaccinations become key to eradication
Meanwhile, many cities in the United States were challenged by various epidemics and outbreaks including polio, typhoid fever, and a devastating pandemic caused by Spanish Influenza in 1918.
By 1922, many United States schools required that students be vaccinated for smallpox despite the many lawsuits challenging the mandate. Opposition to vaccination grew through the 1920s, particularly against compulsory vaccination. In 1926, a group of healthcare officers visited Georgetown, Delaware, intent on vaccinating the townspeople, only to find an armed mob that forced them out and prevented the vaccination attempt.6 Fortunately over time, the vaccination became more accepted and by the 1950s a single outbreak was limited to eight people in Texas, though sporadic cases occurred thereafter, mostly through travelers entering the U.S. from foreign countries. In May of 1980, almost two centuries after Jenner’s effort, the World Health Organization declared the world free of disease.7
A bump in the road
In less than two decades after this major success, a fraudulent study published by British gastroenterologist Andrew Wakefield in 1998 linked the measles-mumps-rubella (MMR) vaccine to autism and added fuel to the fire of the anti-vaccination campaign. Despite retraction of the publication in 2010 as well as several studies demonstrating no association between MMR and autism,8 Fears of autism associated with the vaccine caused declining vaccination rates in both the United Kingdom and the United States. Even though the General Medical Counsel of the UK revoked Wakefield’s license to practice medicine because of his fraud, Andrew Wakefield remains a leader in the global anti-vaccination campaign.
Now, in 2022, a century after Zucht vs. King, we are in the third year of a deadly pandemic caused by Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) with over 5 million deaths globally.9 Twelve vaccines are currently approved by at least one country including three approved or authorized for emergency use by the United States Food and Drug Administration. Several studies have proved the high effectiveness of vaccines against the virus and decline in hospitalizations and mortality rates.10,11 However, skepticism and efforts to challenge vaccination mandates, including many lawsuits across the United States, remain an obstacle to efforts to curb the virus by vaccinations. Workers and advocacy groups have filed more than 39 federal cases this year, contesting vaccination requirements imposed by employers or governments, with 85% of them being filed after August 1, 2021, with various arguments and objections by the challengers.12
According to the Centers for Disease Control and Prevention data, since December of 2020, approximately 62% of U.S. population is fully vaccinated to this date; however, over 35% of population have not received any vaccination dose citing personal, religious and/or health related reasons. According to recent study results by Sun et al., lower vaccination rates are more significant in rural areas and appear to be linked to lower education levels.13 Sun et al. suggests a number of possible interventions to help increase vaccination rates, including providing easy access to the vaccination through increased numbers of on-site vaccinations for employees and families; paid time off for employees to receive the vaccine and to recover from any side effects; combatting misinformation; and collaborations with community leaders and primary care providers to educate residents of communities with lagging vaccination numbers. In addition to these interventions, vaccine mandates remain an effective means to increase the total number of people vaccinated.
No question that endemics, epidemics and pandemics will continue to challenge the humankind, so will the fight against vaccination.
Acknowledgments: Special thanks to Robert P. Barclift, JD, for assisting in with the legal aspects of this essay.
1. Zucht v. King, 260 U.S. 174 (1922).
2. In 1905, the United States Supreme Court in Jacobson v. Massachusetts, 197 U. S. 11, (1905) held compulsory vaccination within the police power of a state. That case and others held that a state may, consistently with the federal Constitution, delegate to authority to government officials to determine under what conditions health regulations shall become operative. Laurel Hill Cemetery v. San Francisco, 216 U. S. 358 (1910). A municipality may vest in its officials broad discretion in matters affecting the application and enforcement of a health law. Lieberman v. Van de Carr, 199 U. S. 552 (1905).
3. Koskland, Benefits, Risks, Vaccines, and the Courts. 1985; 227 SCIENCE 1289.
4. Michael Sanzo Ph.D. Vaccines and the Law. 1992; 19 Pepp. L. Rev. Iss.
5. Britannica, T. Editors of Encyclopaedia. "smallpox." Encyclopedia Britannica, July 24, 2020.
8. DeStefano F, Chen RT. Negative association between MMR and autism. Lancet. 1999;353(9169):1987-1988.
9. WHO COVID-19 Dashboard. Geneva: World Health Organization, 2020. Available online: https://covid19.who.int/.
10. Fowlkes A, Gaglani M, Groover K, et al. Effectiveness of COVID-19 Vaccines in Preventing SARS-CoV-2 Infection Among Frontline Workers Before and During B.1.617.2 (Delta) Variant Predominance — Eight U.S. Locations, December 2020–August 2021. MMWR Morb Mortal Wkly Rep 2021;70:1167-1169.
11. Tenforde MW, Self WH, Naioti EA, et al. Sustained Effectiveness of Pfizer-BioNTech and Moderna Vaccines Against COVID-19 Associated Hospitalizations Among Adults — United States, March–July 2021. MMWR Morb Mortal Wkly Rep 2021;70:1156-1162.
13. Sun, Y, Monnat, SM. Rural-urban and within-rural differences in COVID-19 vaccination rates. J Rural Health. 2021; 00 1-7.