How a 1905 Smallpox Case Became a Blank Check for COVID Mandates

For more than a century, courts have leaned on a single Supreme Court case to justify government-mandated medical interventions during public health crises. That case—Jacobson v. Massachusetts—upheld a modest fine imposed on a Massachusetts man who refused a smallpox vaccination during an outbreak in 1902.

During the COVID-19 pandemic, Jacobson became the legal keystone for sweeping vaccine mandates across the United States. Federal agencies, school districts, universities, and courts repeatedly invoked the 1905 ruling as if it were a blank check for compulsory medical treatment. Now, a growing coalition of states, civil-liberties advocates, and legal scholars is asking whether courts stretched Jacobson far beyond its historical and constitutional limits.

At the center of the current challenge is a petition by Health Freedom Defense Fund (HFDF), urging the Supreme Court to clarify—or limit—how Jacobson should apply to modern vaccine mandates that differ dramatically from those of the early 20th century.

A Pandemic-Era Expansion of a Narrow Precedent

Jacobson arose in a very specific context: a smallpox epidemic, a traditional sterilizing vaccine, and a penalty equivalent to about $150 today. The Court emphasized that states could act to prevent the spread of a communicable disease, not to compel medical treatment for a person’s own benefit.

Yet during COVID-19, courts often treated Jacobson as controlling precedent for mandates even when the vaccines in question did not reliably prevent infection or transmission—facts that later became widely acknowledged by public health authorities.

That expansive reading is now under scrutiny following a decision by the full U.S. Court of Appeals for the Ninth Circuit, which upheld Los Angeles Unified School District’s employee vaccine mandate. The court concluded that it was legally irrelevant whether COVID vaccines stopped transmission, so long as policymakers could have reasonably believed they promoted public health.

The ruling reversed an earlier three-judge panel decision and applied the lowest possible level of constitutional review—rational basis scrutiny—a standard that asks only whether the government could have had some conceivable reason for its action.

Critics argue that this approach amounts to judicial abdication.

Why Scrutiny Matters

HFDF and its allies contend that Jacobson never endorsed rational-basis review as it is understood today. Modern tiers of scrutiny—rational basis, intermediate scrutiny, and strict scrutiny—were not formalized until decades later.

Instead, Jacobson employed a balancing approach, weighing individual liberty against public necessity. That same balancing framework was later reaffirmed in Cruzan v. Director, Missouri Department of Health, where the Court recognized a competent person’s constitutional right to refuse unwanted medical treatment.

HFDF argues that COVID-era courts abandoned this balancing test entirely, substituting speculation about what governments could have believed for evidence of actual public necessity.

That shift matters because the legal justification for mandates often evolved mid-pandemic—from preventing infection and transmission to merely reducing symptoms or hospitalizations. Critics say this turns Jacobson into a justification for paternalistic medical compulsion, untethered from its original purpose.

Red States Warn of Dangerous Precedent

A multistate brief led by Texas and joined by more than a dozen other states urges the Supreme Court not to miss the broader constitutional stakes. The states argue that bodily autonomy has deep roots in American law, particularly in Fourth Amendment cases rejecting forced medical procedures and invasive bodily searches.

They note that due-process jurisprudence has long recognized informed consent as a cornerstone of medical ethics—and that the right to consent logically includes the right to refuse.

In their view, Jacobson carved out a narrow exception for preventing disease spread, not a general license for compulsory treatment. Expanding it further, they warn, risks collapsing the distinction between public health and state-imposed medical paternalism.

The Shadow of Buck v. Bell

Perhaps the most sobering warning comes from New Civil Liberties Alliance (NCLA), which highlights Jacobson’s role in one of the Supreme Court’s darkest chapters.

In Buck v. Bell, the Court upheld Virginia’s forced sterilization law, relying explicitly on Jacobson. Justice Oliver Wendell Holmes Jr.’s infamous declaration—“three generations of imbeciles are enough”—remains a cautionary reminder of how deference to state power can metastasize.

NCLA argues that treating Jacobson as a talismanic precedent, immune from meaningful scrutiny, risks enabling similarly abusive applications in the future—especially as governments broaden the definition of what qualifies as a “vaccine.”

Does the Definition of “Vaccine” Still Matter?

One of the most consequential questions raised by the petition is whether courts should continue to attach decisive weight to the label “vaccine” itself.

Dissenting Ninth Circuit Judge Kenneth Lee warned that lowering the bar to include any treatment that merely reduces symptoms invites governments to relabel compulsory medical interventions to evade constitutional scrutiny. If accepted, that logic could justify mandates unrelated to communicable disease control—so long as officials claim a health benefit.

That concern echoes broader anxieties about the administrative state and the erosion of judicial oversight during emergencies.

What Happens Next

The Supreme Court has not yet decided whether to hear HFDF’s petition, and it may ultimately decline review. But the issue is unlikely to disappear. Multiple COVID-era cases continue to percolate through the courts, and the legal tension between Jacobson and later right-to-refuse precedents remains unresolved.

At stake is not merely the legality of past mandates, but the constitutional framework governing future public health emergencies. Whether Jacobson remains a narrow exception—or becomes a permanent straitjacket on bodily autonomy—may determine how far governments can go the next time crisis strikes.

Selected Sources

• Supreme Court of the United States, Jacobson v. Massachusetts (1905)

• Supreme Court of the United States, Cruzan v. Director, Missouri Dept. of Health (1990)

• Supreme Court of the United States, Buck v. Bell (1927)

• U.S. Court of Appeals for the Ninth Circuit, Health Freedom Defense Fund v. Los Angeles Unified School District

• Briefs by the New Civil Liberties Alliance and multistate coalition led by Texas

• CDC and FDA public statements on COVID-19 vaccine efficacy and transmission (2021–2023)