The Long History Of Vaccine Mandates In America Explained

United States president Joe Biden's 2021 vaccine mandate set off a firestorm of controversy across America, as businesses and states rushed to comply before fines set in. There was fierce opposition to the mandate, which fought back with lawsuits and legislation blocking any federal enforcement at the state level. 

One of the key aspects of the opposition has centered around the legality of the vaccine mandates, which critics hold could be unconstitutional or unethical. Supporters, meanwhile, point to America's long history with vaccine mandates, which the NY Times called "an American tradition." Both sides bring valid legal, scientific, and historical arguments to the table that cite the tug-of-war between proponents and opponents of mandates. 

Contrary to the often simplistic, polemical arguments seen in the media, on the internet, and in political circles, the history of American vaccine mandates is far from straightforward. It is fraught with controversies and relates to some of the uglier moments in the nation's history. Here is the complex and convoluted history of American vaccine mandates.

According to the journal Quality and Safety in Healthcare, Founding Father Benjamin Franklin was suspicious of variolation. That is, until he lost a son in 1736 to smallpox. Franklin bitterly regretted not inoculating his child, and perhaps others did as well, but their concerns were well-grounded. Variolation was not the safest way of immunizing a patient and could expose them to the full disease. But by 1798, the situation had changed. According to the BBC, Edward Jenner realized that exposing people to smallpox's relative cowpox also immunized them against smallpox. This method was much safer than direct exposure and saved countless lives in Britain.

Once the safer alternative became available in the United States, individual states realized the life-saving potential it had. So according to the American Journal of Bioethics, Massachusetts decided to override individual concerns about the vaccines in favor of public health with an 1809 law that constitutes the first true American vaccine mandate. It was not, however, a statewide mandate. Instead, it allowed local health boards to mandate smallpox vaccinations for the inhabitants within their jurisdictions and penalize refusers with a $5 fine (~$110 today).

To encourage refusers to comply, the town of Milton publicly repeated Jenner's famous (and ethically questionable) experiment on James Phipps that had led to the vaccine's discovery. The town vaccinated a cohort of children in July of 1809. According to the Smithsonian, 12 of those children were publicly exposed to smallpox, but did not get sick after 15 days. This helped assuage safety and efficacy fears regarding and led the town to declare that smallpox "was slain."

With the failure of the 1813 Vaccine Act, Massachusetts once again took over as leader of government mandates. According to a 1932 report from the Massachusetts Medical Society, the state repealed all mandatory vaccination laws and stopped the tracking and quarantining of smallpox patients, and rescinded all fines for non-compliance in the 1830s. Private organizations, however, were allowed to maintain their mandates. Because smallpox was so deadly, though, the state restored tracking and fines by 1838.

Once the vaccination laws were repealed, the MA Medical Society notes that deaths shot up. For reference, between 1813 and 1838, there were 39 smallpox cases, while between 1839 and 1855, there were over 1,000. Thus in 1855, the state passed a sweeping mandate that is best known for being the first school vaccination law, although it covered much more than that. The 1855 law required all children to be vaccinated by the age of two or face a yearly $5 fine. Unvaccinated children were also barred from public schools. Local health boards, meanwhile, could mandate vaccination for all people under their jurisdiction, although the enforcement mechanism is unclear.

The mandate had a second part. All employees and beneficiaries of state institutions, including public schools, jails, mental hospitals, and any other entity that received state money had to be vaccinated against smallpox. This law formed the basis of future mandates across the country, but it sparked robust opposition that sought the repeal of compulsory vaccination laws as early as the 19th century.

The battle over vaccine mandates arrived at the nation's highest court in 1905 and involved, as always, the state of Massachusetts. The case Jacobson v. Massachusetts, according to the American Journal of Public Health, pitted Swedish-born Lutheran pastor Henning Jacobsen against Massachusetts and its fines for refusing smallpox boosters. Jacobson had good reason to refuse. He had suffered adverse reactions to the smallpox vaccine in the past. But refusal would cost him a $5 fine (~$140 today). Jacobson had no interest in paying, arguing that Massachusetts was infringing upon his personal liberties despite his documented and legitimate reasons for refusing smallpox boosters. The court, led by Justice John Harlan, ruled against him.

Today, Jacobson v. Massachusetts is cited as a blanket basis for virtually every vaccine mandate in modern America, but as Prof. Josh Blackman of South Texas College of Law notes, the Supreme Court decision is widely misunderstood. The Supreme Court never actually ruled on the legality of requiring citizens to undergo medical procedures, including vaccination. The decision revolved around the $5 fine. Massachusetts law did not require vaccination for resistors who paid their fines. Thus the court's ruling, for practical purposes, simply upheld Massachusetts' right to fine Jacobson. He never had to take the vaccine and the court acknowledged his right to refuse it on health grounds. But, as Prof. Blackman notes, subsequent Supreme Court decisions turned Jacobson into a blanket approval of not only vaccine mandates, but of some of America's ugliest Progressive Era policies relating to eugenics.

Although Jacobsen v. Massachusetts did not technically mandate vaccines, many states took subsequent SCOTUS decisions to enforce them. But surprisingly, the modern movement referred to today as "anti-vaxx" was born with a vaccine that was not mandated. In 1955, the polio vaccine hit the market. According to NPR, polio disabled around 35,000 children per year. Its most famous victim was President Franklin Roosevelt. Because of the disease's debilitating effects, NPR notes parents rushed to sign their children up for the shot when it appeared in 1953. While the polio vaccine was very effective, unfortunately, the Cutter Incident sowed doubt among Americans regarding the safety of vaccines.

According to the Journal of the Royal Society of Medicine, a batch of polio vaccines manufactured in a California lab in 1955 turned out to be faulty. The manufacturers had not inactivated the polio virus, resulting in thousands of children being injected with live polio. The incident paralyzed at least 200 children and killed 40. The JRSM faults the federal regulatory mechanisms, which should have caught the faulty batches before they went to market. But other than the Cutter Incident, polio vaccines correlated with a massive drop in the disease. As a result, American schools mandated it and many other shots as compulsory vaccination laws were tightened across the country.

As the number of shots required to attend school increased through the 1970s and '80s the issue of adverse reactions in children came to the fore. According to the Journal of the Royal Society of Medicine, pharmaceutical companies began experiencing lawsuits from angry and heartbroken parents whose children had suffered adverse reactions to their products. These litigations resulted in large financial settlements that eliminated pharmaceutical companies' incentives to create vaccines in the first place. Thus, in 1986, Congress passed the National Childhood Vaccine Injury Act. This law gave pharma companies complete immunity from all civil lawsuits in cases where a mandated vaccine caused a child to die or be incapacitated. Instead, claims were now processed through a government vaccine court that set compensation. According to CNBC, however, victims of adverse events rarely obtain compensation.

This legislation is controversial. While it allows pharmaceutical companies to create and innovate with life-saving vaccines, it also provides an incentive for unscrupulous pharmaceutical companies (via the Guardian) to compromise product safety in pursuit of profit. As a result, the National Nurses United notes that big pharma has become the biggest cheerleader of vaccine mandates.

Mandate critics fall into several categories. First are critics who question covid vaccine safety standards. In addition, the BMJ found some undeclared conflicts of interest among the FDA employees and journal editors responsible for vetting covid vaccines.

There is also robust political opposition. Critics such as FOX New's White House Reporter Peter Doocy have noted that while many Americans will be required to be vaccinated to work, illegal immigrants are not. According to Reuters, migrants can sue pharmaceutical companies over adverse reactions, while under the PREP Act, Americans cannot, thus prompting the hesitation to mandate it for the former group. Connecticut capitol staffers, meanwhile, have noted the hypocrisy of state lawmakers exempting themselves from their own vaccine mandate for CT legislative employees (via NBC).

Some states, notably Florida, have openly defied the federal government. Governor Ron DeSantis has banned all state, school, and employer covid vaccine/mask mandates while charging violators $10-50,000 per employee violation. Others, such as New York, Illinois, and California, have doubled down, even as they lose jobs, businesses, and taxpayers to states like Florida and Texas (via KTLA). Regardless of the anticipated Supreme Court decision, Biden's mandate will likely further highlight the partisan and geographic divisions within America that have been increasingly visible since the 2016 election.