It looks like litigation has been averted over New Jersey’s efforts to quarantine a nurse who was potentially exposed to Ebola. But yesterday, the ACLU was posturing to file a civil rights lawsuit on her behalf. Had a suit been filed, one of the leading precedents the ACLU would have had to challenge was Jacobson v. Massachusetts, a 1905 decision that upheld the state’s power to forcefully inoculate people. (Whenever I teach this case, I stress that we were not dealing with Jenny McCarthy anti-vaxxers, but a different time when vaccines were often lethal). Eugene Kontorovich does a good job explaining why Jacobson is a strong precedent standing in the way of any due process challenge.
While the ACLU would no doubt try to distinguish away Jacobson, and explain why it does not control here, the organization’s own briefs make that a difficult pill to swallow (shot in the arm?).
As my good friend Adam White points out in this post, it was not too long ago that the ACLU was favorably citing Jacobson to support the government’s power to impose on individual liberty. In their Amicus Brief to the Court in the Obamacare case, the ACLU, joined by the NAACP Legal Defense Fund, found that the individual mandate “imposes minimal burdens on liberty.” In support of this argument, the brief favorably cites Jacobson in a footnote, without any criticism:
9 Notably, in Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Court repudiated the assertion that a compulsory smallpox vaccination was “hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.” Id. at 26. Observing “the fundamental principle that persons and property are subjected to all kinds of re- straints and burdens in order to secure the general comfort, health, and prosperity of the state,” id. (internal quotation marks omitted), the Court upheld the law on the grounds that it promoted public health and safety, id. at 31.
It is really, really difficult to imagine why the ACLU would favorably cite this case. It’s other citations to Cruzan and Glucksberg suffice. Why mention it at all? Perhaps this footnote was added in as an afterthought?
Consider these sweeping renunciation of liberty in Jacobson.
But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the State to that end has no real or substantial relation to the protection of the public health and the public safety. Such an assertion would not be consistent with the experience of this and other countries whose authorities have dealt with the disease of smallpox.
As Adam observes, the “temporary quarantines fall far short of mandatory vaccinations that the ACLU endorsed in its argument in defending Obamacare.” In their efforts to defend the Affordable Care Act, they perhaps inadvertently endorsed the very precedent that would justify the types of invasive quarantines being conducted in New Jersey.
Adam’s closing completes the circle, and ties together the ACLU’s recent meandering on other issues of individual liberty, including the First Amendment and religious liberty.
This seems to be something of a trend at the ACLU, where defense of civil liberties has been replaced by defense of Democratic Party policy preferences, in major cases. We see this in a variety of contexts. On free speech, the ACLU now endorses heavy campaign finance regulations — a stark reversal highlighted by former ACLU executive director Ira Glasser and legendary First Amendment Floyd Abrams, and by professors Ron Collins and David Skover in a recent ebook.
On religious liberty, the ACLU filed a brief in the Hobby Lobby case, arguing that religious liberty should be trumped by laws entitling women to employer-funded contraception. More recently, the ACLU has sided with same-sex-marriage activists who demand that individual citizens waive their religious liberties when operating businesses related to weddings: just last week, the ACLU’s blog argued that Las Vegas wedding chapel owners should not be allowed to invoke religious liberty as a basis for refusing to perform wedding services for same-sex couples.
While I’m on the topic, let’s not forget Roe v. Wade’s citation to Buck v. Bell, along with Jacobson v. Massachusetts for the proposition that the state has a paramount concern over rights of individual liberty.
As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200(1927) ( sterilization).
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.