Harvey Risch, Senior Scholar at Brownstone Institute, is a physician and a Professor Emeritus of Epidemiology at Yale School of Public Health and Yale School of Medicine.
Gerard V. Bradley is professor of law at the University of Notre Dame, where he teaches Legal Ethics and Constitutional Law.
"During the pandemic, the courts have rightly relied upon a century-old precedent of the Supreme Court in mandate cases, but they have gravely misunderstood and misapplied that precedent to uphold draconian and unjustified Covid-19 vaccine mandates...
[D]uring the 1902 smallpox epidemic, the U.S. Supreme Court in Jacobson v. Massachusetts, 197 U.S. 11 (1905) ruled that the State of Massachusetts could compel residents to obtain free vaccination or revaccination against the infection, or suffer a penalty of $5 (about $150 today) for noncompliance.
In authoring the majority opinion in Jacobson, Justice John Marshall Harlan argued (1) that individual liberty does not allow people to act regardless of harm that could be caused to others; (2) that the vaccination mandate was not shown to be arbitrary or oppressive; (3) that vaccination was reasonably required for public safety; and (4) that the defendant’s view that the smallpox vaccine was not safe or effective constituted a tiny minority medical opinion...
The Jacobson case set a model of how the U.S. government and its subdivisions would be empowered to protect the public while at the same time minimizing limitations of activities and infringements of rights. Further, it relied solely on a moderate economic penalty for noncompliance. The smallpox pandemic in 1902-4 had an estimated case fatality risk of 18%, whereas the case fatality risk of Covid-19 is less than 1%. This massive difference should have given hesitancy to the draconian purported control measures that have been instituted across the country.
A careful reading of Jacobson shows that it is not just an automatic consideration allowing the government to do what it wants when a pandemic emergency has been officially declared. In a pandemic, courts look to Jacobson for precedent as an apparent direct fit, but even so must evaluate the evidence for satisfying all of the Jacobson criteria. As we have shown, Covid-19 vaccine mandates do not satisfy any of the required criteria in Jacobson, let alone all of them.
The question to be addressed then is why a pandemic infection with approximately 1/20th the natural mortality risk of the previous smallpox pandemic would be subject to the grievous penalties of loss of employment, loss of medical care, loss of necessary activities of daily life, and mandate of vaccines that unlike in the previous pandemic have no long-term safety data. Given that none of the Jacobson criteria have been met, the infringements and demands of the government and its public health agencies have not been justified according to law. This is the argument that must be made as to why the proposed vaccine mandate is an unwarranted overreach inconsistent with established public health policy and law."
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