New York City has a policy that bars unimmunized students from public schools if another student has a vaccine-preventable disease. In dismissing the lawsuit, the Court relied on Justice Holmes’s opinion in Jacobson v. Massachusetts.
Plaintiffs argue that the vaccination program at issue denies their children the constitutional right to free exercise of religion, but not only has the Supreme Court strongly suggested that religious objectors are not constitutionally exempt from vaccinations, Jacobson v. Commonw. of Mass., 197 U.S. 11, 35-39 (1905), courts in this Eastern District have resolutely found there is no such constitutional exemption. In Caviezel v. Great Neck Public Schools, under nearly identical facts and citing Jacobson, the court held that “the free exercise clause of the First Amendment does not provide a right for religious objectors to be exempt from New York’s compulsory inoculation law.” 739 F. Supp. 2d 273, 285 (E.D.N.Y. 2010) (Spatt, J.) ajf’d, 500 F. App’x 16 (2d Cir. 2012), cert. denied, 133 S. Ct. 1997 (U.S. 2013). Similarly, in Sherr v. Northport-East Northport Union Free School District, the court explicitly held that no constitutional right to religious exemptions exists and found that the statutory exemption New York provides “goes beyond what the Supreme Court has declared the First Amendment to require.” 672 F. Supp. 81, 88 (E.D.N.Y. 1987) (Wexler, J). Although Plaintiffs opine that Jacobson is bad law and ask this Court to overturn the Supreme Court decision, “this the Court cannot do.” Caviezel, 739 F. Supp. 2d at 285. Accordingly, Plaintiffs’ First Amendment claim is dismissed. As to the Plaintiffs’ substantive due process causes of action, the Second Circuit has found that Jacobson flatly defeats any such claims. Caviezel v. Great Neck Pub. Sch., 500 F. App’x 16, 19 (2d Cir. 2012) cert. denied, 133 S. Ct. 1997 (U.S. 2013). Indeed, the Second Circuit cited McCartney v. Austin for the proposition that New York’s vaccine program is well within the State’s police power and thus its constitutionality is too well established to require discussion. Id. at 19 (citing 31A.D.2d370, 371 (3d Dep’t 1969)). In light ofthe Second Circuit’s holding, Plaintiffs’ challenge to New York’s vaccination practice on substantive due process grounds fails and is dismissed.
What’s odd is that Holmes’s [Update: err, Harlan] opinion makes no mention of religion or the First Amendment. This is to be expected as the First Amendment, at the time, did not apply to the states. But the court’s observation that Jacobson “strongly suggested that religious objectors are not constitutionally exempt from vaccinations” is simply wrong. Jacobson opposed the vaccination on safety grounds, not religious grounds.
Contrary to the Jenny McCarthy anti-vaxers of today, fears of vacchines at the turn of the turn of the 20th century were well-founded. They were very, very dangerous, and resulted in a high rate of death. As the cited pages from Jacobson note:
The defendant offered to prove that vaccination “quite often” caused serious and permanent injury to the health of the person vaccinated; that the operation “occasionally” resulted in death; that it was “impossible” to tell “in any particular case” what the results of vaccination would be or whether it would injure the health or result in death; that “quite often” one’s blood is in a certain condition of impurity when it is not prudent or safe to vaccinate him; that there is no practical test by which to determine “with any degree of certainty” whether one’s blood is in such condition of impurity as to render vaccination necessarily unsafe or dangerous; that vaccine matter is “quite often” impure and dangerous to be used, but whether impure or not cannot be ascertained by any known practical test; that the defendant refused to submit to vaccination for the reason that he had, “when a child,” been caused great and extreme suffering for a long period by a disease produced by vaccination; and that he had witnessed a similar result of vaccination not only in the case of his son, but in the cases of others.
Opposing vaccines was, in many cases, reasonable. The Jacobson case concerned forced vaccinations in times of an epidemic, and its safety implications. It had nothing to do with religion. At all.
In any event, Jacobson was a key precedent cited in Buck v. Bell. If we can force people to be vaccinated, surely we can force them to be sterilized. Not exactly the precedents I would champion. It was also favorably cited by Justice Blackmun in Roe v. Wade.
Though, later in life, Holmes seemed to soften on this position, as he noted in a 1918 letter to Learned Hand, “free speech stands no differently than freedom from vaccination.”