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Citations:

Bluebook 21st ed.

Roseann B. Termini, The COVID-19 Modern Era Pandemic - The Impact of the 1905 United
States Supreme Court Decision of Jacobson: Compulsory Vaccination under State Police
Power vs. the Individual Right to Refuse a Vaccination, 27 WIDENER L. REV. 165
(2021).

ALWD 6th ed.

Termini, R. B., The covid-19 modern era pandemic - the impact of the 1905 united
states supreme court decision of jacobson: Compulsory vaccination under state police
power vs. the individual right to refuse a vaccination, 27(2) Widener L. Rev. 165
(2021).

APA 7th ed.

Termini, R. B. (2021). The covid-19 modern era pandemic the impact of the 1905 united
states supreme court decision of jacobson: Compulsory vaccination under state police
power vs. the individual right to refuse vaccination. Widener Law Review, 27(2),
165-176.

Chicago 17th ed.

Roseann B. Termini, "The COVID-19 Modern Era Pandemic - The Impact of the 1905 United
States Supreme Court Decision of Jacobson: Compulsory Vaccination under State Police
Power vs. the Individual Right to Refuse a Vaccination," Widener Law Review 27, no. 2
(2021): 165-176

McGill Guide 9th ed.

Roseann B Termini, "The COVID-19 Modern Era Pandemic - The Impact of the 1905 United
States Supreme Court Decision of Jacobson: Compulsory Vaccination under State Police
Power vs. the Individual Right to Refuse a Vaccination" (2021) 27:2 Widener L Rev
165.

AGLC 4th ed.

Roseann B Termini, 'The COVID-19 Modern Era Pandemic - The Impact of the 1905 United
States Supreme Court Decision of Jacobson: Compulsory Vaccination under State Police
Power vs. the Individual Right to Refuse a Vaccination' (2021) 27(2) Widener Law
Review 165.

MLA 8th ed.

Termini, Roseann B. "The COVID-19 Modern Era Pandemic - The Impact of the 1905 United
States Supreme Court Decision of Jacobson: Compulsory Vaccination under State Police
Power vs. the Individual Right to Refuse a Vaccination." Widener Law Review, vol. 27,
no. 2, 2021, p. 165-176. HeinOnline.

OSCOLA 4th ed.

Roseann B Termini, 'The COVID-19 Modern Era Pandemic - The Impact of the 1905 United
States Supreme Court Decision of Jacobson: Compulsory Vaccination under State Police
Power vs. the Individual Right to Refuse a Vaccination' (2021) 27 Widener L Rev 165
 THE COVID-19 MODERN ERA PANDEMIC - THE IMPACT OF
THE 1905 UNITED STATES SUPREME COURT DECISION OF
JACOBSON: COMPULSORY VACCINATION UNDER STATE
POLICE POWER VS. THE INDIVIDUAL RIGHT TO
REFUSE A VACCINATION

Roseann B. Termini*

I. INTRODUCTION

Vaccines are far from a new phenomenon.' Over two centuries ago,
Edward Jenner was credited with inventing a vaccine to prevent smallpox.2
Other notable vaccines include Pertussis (1914), Diphtheria (1926), Tetanus
(1938), which were combined to make the DTP vaccine in 1948.3 The
licensing of the polio vaccine in 1955 was cause for celebration. 4 Fast
forward to early 2020, the dire necessity for a vaccine to combat COVID-19
became apparent as an unprecedented pandemic infiltrated the United
States.5 This article will provide a succinct overview of the global COVID-

* Roseann B. Termini, B.S. magna cum laude, M.Ed. Fellow, J.D., a food and drug law
attorney, is the author of Food and Drug Law: Federal Regulation of Drugs, Biologics,
Medical Devices, Foods, Dietary Supplements, Personal Care, Veterinary and Tobacco
Products, www.fortipublications.com. She teaches several Food and Drug Law courses at
Delaware Law School, Widener University School of Law. Ms. Termini dedicates this writing
to those who continue to go that extra mile at the Federal Food and Drug Administration,
National Institutes of Health, Centers for Disease Control, and other federal and state agencies,
as well as those who continue to work tirelessly on the front lines of this unprecedented
pandemic. She further dedicates this article to the memory of her parents, who instilled values
that fostered the determination to write about this topic, and her family and non-lawyer friends
for reading the many drafts to comport with plain language considering this complicated issue.
Finally, Ms. Termini thanks Ms. Jamie G. Judefind, Editor-in-Chief, Widener Law Review,
Maria Kontis, External Managing Editor and staff members.
Author contact: [email protected]
Paul A. Offit, Vaccine History: Developments by Year, CHILDREN'S HOSPITAL OF
PHILADELPHIA (Dec. 18, 2019), https://www.chop.edu/centers-programs/vaccine-education-
center/vaccine-history/developments-by-year. However, by the early 1970s, smallpox was
eliminated and therefore the smallpox vaccine was not recommended by the medical
community after 1972. Id In the 1980s, several other vaccines were recommended, including
a vaccine for Hepatitis B and for Haemophilus influenzae type b. Id Vaccines for the
adolescent population were recommended as well, and these include: Tdap (2005),
meningococcal conjugate (2005), HPV (2006 females and in 2009 for males), and
meningococcal serogroup B vaccine (2014). Id
2 Id; see Stefan Riedel, EdwardJenner and the History of Smallpox and Vaccination, 18
BAYLOR UNIV. MED. CTR. PROCEEDINGS, 21-25 (2005).
3 Offit, supra note 1.
41d
s See A Timeline of Covid-19 Developments, AJMC, https://www.ajmc.com/view/a-
timeline-of-covidi9-developments-in-2020 (last updated Jan. 1, 2021).

165
166 Widener Law Review [Vol. 27:165

19 pandemic and the right by an individual to refuse a vaccine versus

compulsory vaccination under state police power.6

II. COVID-19 PUBLIC HEALTH EMERGENCY

What is the meaning of the acronym COVID-19? The World Health

Organization (WHO) provided the official name for the 2019 novel
coronavirus disease, COVID-19, and the disease it causes, SARS-CoV-2.'
What are coronaviruses? The coronaviruses are a sizable family of viruses
common in varied species of animals such as camels, cattle, cats, and bats.
Animal coronaviruses can infect people and then spread between people,
much like MERS-CoV, SARS-CoV, and now SARS-CoV-2.8 The SARS-
CoV-2 virus is a betacoronavirus, like MERS-CoV and SARS-CoV, and is
thought to originate in bats.9
The International Health Regulations Emergency Committee of the WHO
declared the coronavirus outbreak a public health emergency of international
concern (PHEIC) on January 30, 2020 and on March 11, 2020, declared the

6See Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905). Police power is a legal term of
art used to describe the authority of a state to enact a public protection measure; see also What
is Police Power?, THE LAw DICTIONARY, https://thelawdictionay.org/police-power/ (last
visited Feb. 7, 2021). Author Note: Culture has vastly impacted COVID-19 in terms of the
individual right to either obtain the vaccine or to refuse the vaccine. For example, the deaths
(26) and cases (2,257 cases) in New Zealand are notably low as compared to the United States
with one-half a million deaths. Part of this is attributed to the proactive measures taken by the
government and part attributed to the manaakitanga culture based on the Maori people and in
fact is taught in New Zealand schools. See WHO Coronavirus(COVID-19) Dashboard:New
ZealandSituation, WHO, https://covidl9.who.int/region/wpro/country/nz (last visited Apr.
27, 2021); see also Matthew Milner & Richard Ngata, Opinion: The indigenouscustom behind
New Zealand's strong covid-19 response, THE WASHINGTON POST (Mar. 11, 2021)
https://www.washingtonpost.com/opinions/2021/03/11/new-zealand-covid-19-maori-
indigenous-manaakitanga/; infra note 14.
? Naming the coronavirus disease (COVID-19) and the virus that causes it, WHO,
https://www.wlho.int/emergencies/diseases/novel-coronavirus-2019/technical-
guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it (last
visited Feb. 27, 2021); see also WHO COVID-19: Case Definitions, WHO (Dec. 12, 2020),
https://www.who.int/publications/i/item/WHO-2019-nCoV-Surveillance_Case_Definition-
2020. The World Health Organization (WHO) provided the official name for the "coronavirus
disease 2019" as follows: COVID-19 which is an abbreviation for: CO=Corona; VI=Virus;
D=Disease; 19=2019 year. About COVID-19, CTR. FOR DISEASE CONTROL (Sept. 1, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/cdcresponse/about-COVD-19.html.
8 Coronaviruses, NAT'L INST. OF ALLERGY AND INFECTIOUS DISEASES,
https://www.niaid.nih.gov/diseases-conditions/coronaviruses (last visited Feb. 3, 2021); see
About COVID-19, supranote 7.
9 See About COVID-19, supra note 7; see also WHO Experts Visit Wuhan Lab at Center
of Virus Conspiracy Theory, BLOOMBERG NEwS (Feb. 2, 2021),
https://www.bloomberg.com/news/articles/2021-02-03/who-experts-visit-wuhan-lab-at-
center-of-virus-conspiracy-
theory?cmpid=BBD020321_CORONAVIRUS&utmmedium=email&utmsource=newslett
er&utmterm=210203&utm_campaign=coronavirus.
2021 ] The COVID-19 Modern Era Pandemic 167

outbreak a global pandemic.1 0 Former Health and Human Services Secretary,

Alex M. Azar II, declared a public health emergency (PHE) for the United
States on January 31,'2020." The COVID-19 outbreak was linked to a huge
seafood and live animal market in Wuhan, China, yet some patients
reportedly were not exposed to the animal market, indicating early signs of
person-to-person spread.' 2 The first presence of COVID-19 in the United
States was first confirmed in the State of Washington around early 2020.13
As of this writing, COVID-19 cases in the United States have included over
31,883,289 total cases and over 569,272 total deaths.' 4 The impact of
COVID-19 on society has been tremendous. For example, opioid overdoses
and tobacco use have increased as a result.'"

10 See Statement on the Second Meeting of the InternationalHealth Regulations (2005)

Emergency Committee Regarding the Outbreak of Novel Coronavirus (2019-nCoV), WHO
(Jan. 30, 2020), https://www.who.int/news/item/30-01-2020-statement-on-the-second-
meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-
outbreak-of-novel-coronavirus-(2019-ncov); see also Coronaviruses,supra note 8.
" Press Release, U.S. Dep't. of Health and Hum. Serv., Secretary Azar Declares Public
Health Emergency for United States for 2019 Novel Coronavirus (Jan. 31, 2020),
https://www.hhs.gov/aboutlnews/2020/01/31/secretary-azar-declares-public-health-
emergency-us-2019-novel-coronavirus.html; Renewal ofDeterminationThat a PublicHealth
Emergency Exists, U.S. DEP'T OF HEALTH AND HUM. SERV., (July 23, 2020),
https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-23June2020.aspx;
see Declaration Under the Public Readiness and Emergency Preparedness Act for Medical
Countermeasures Against COVID-19, 85 Fed. Reg. 15198 (March 17, 2020) (retroactive
effective date January 27, 2020 renewed April 21, 2020 and July 23, 2020 effective date July
25, 2020); see generally Department of Defense, Emergency Supplemental Appropriations to
Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006, Pub. L. No.
109-148, § 2, 119 Stat. 2680, 2819-20 (2005); cf 42 U.S.C § 247(d) (2019).
12 See Listings of WHO's response to COVID-19, WHO (June 29, 2020),
https://www.who.intlnews/item/29-06-2020-covidtimeline; see also WHO Experts Visit
Wuhan Lab at Center of Virus Conspiracy Theory, supra note 9.
13 First Travel-relatedCase of 2019 Novel CoronavirusDetected in United States, CDC
(Jan. 21, 2020), https://www.cdc.gov/media/releases/2020/p0121-novel-coronavirus-travel-
case.html.
" COVID Data Tracker, CDC, https://covid.cdc.gov/covid-data-
tracker/?CDC_AArefVal=https%3A%2F%2F1.800.gay%3A443%2Fhttps%2Fwww.cdc.gov%2Fcoronavirus%2F2019-
ncov%2Fcases-updates%2Fcases-in-us.html#cases casesper100klast7days (last visited Apr.
27, 2021) (noting that these figures change daily continue to increase and showcase the
magnitude of the devastation caused by COVID-19).
IS Danielle F. Haley & Richard Saitz, The Opioid Epidemic During the COVID-19
Pandemic, JAMA NETWORK (Sept. 18, 2020),
https://jamanetwork.com/journals/jama/fullarticle/2770985; Lt. Sherry Daker, Addressing the
Opioid Crisis during the COVID-19 Pandemic, INDIAN HEALTH SERV.,
https://www.ihs.gov/opioids/covidl9/ (last visited Mar. 22, 2021); Anand Shah & Megan
Moncure, FDA Insight: The OpioidEpidemic and COVID-19Pandemic, FDA (Sept. 1, 2020),
https://www.fda.gov/news-events/fda-insight/fda-insight-opioid-epidemic-and-covid- 19-
pandemic; Julia Rothman & Shaina Feinberg, Smoking Through Covid? You're Not Alone,
NY TIMES (Oct. 8, 2020), https://nyti.ms/3kuLUVz; Jennifer Maloney, American Smokers
Quit Trying to Quit, WALL ST. J. B3 (Jan. 29, 2021); Roseann B. Termini, A Look Back at the
Evolution of the Family Smoking Prevention and Tobacco ControlAct and the Present-Day
Impact on 'Overlookedand Belated Issues' - Electronic Nicotine Delivery Systems and the
168 Widener Law Review [Vol. 27:165

Initially, former Food and Drug Administration (FDA) Commissioner

Hahn emphasized at the onset of the pandemic in the United States that there
were no FDA-approved therapeutics or drugs to treat, cure, or prevent
COVID-19; however, that has changed with emergency use authorized
vaccines and therapies.' 6 Yet, it is critical to emphasize that emergency use
is not an approval. Full approval involves substantial evidence that the
vaccine is safe and effective; whereas "emergency use" is an authorized use
based on an emergency basis." There is no single solution to halt the spread
of COVID-19; rather it is a combination of public actions and personal
safeguards. However, there is a reluctance by some individuals to take the

Youth Epidemic, Menthol, Graphic Warnings and Corrective Statements and Cigarette
Labeling GraphicHealth Warnings, 17 IND. HEALTH L. REV. 107, 126 (2020); see Issue Brief
Reports of increases in opioid- and other drug-relatedoverdose and other concerns during
COVID pandemic, AM. MED. Soc'Y., https://www.ama-assn.org/system/files/2020-10/issue-
brief-increases-in-opioid-related-overdose.pdf (last updated Mar. 3, 2021); see generally
Roseann B. Termini & Rachel Malloy-Good, 50 Years Post ControlledSubstances Act: The
War on Drugs Rages on with Opioids at the Forefront, 46 OHIo N.U.L. REV. 1 (2020).
16 Different COVID-19 Vaccines, CDC, https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/different-vaccines.html (last updated Apr. 3, 2021). At the time of writing,
vaccines authorized under emergency use and recommended to prevent COVID-19: Pfizer-
BioNTech COVID-19 vaccine; Modema's COVID-19 vaccine. Id. The following are in Phase
3 Clinical Trials: AsiraZeneca's COVID-19 vaccine and Novavax's COVID-19 vaccine. Id.
Janssen COVID-19 vaccine was authorized February 27, 2021. Press Release, FDA, FDA
Issues Emergency Use Authorization for Third COVID-19 Vaccine (Feb. 27, 2021)
(https://www.fda.gov/news-events/press-announcements/fda-issues-emergency-use-
authorization-third-covid-19-vaccine); FDA Commissioner Hahn: Lessons Learned From
COVID-19, ISPE (Nov. 30, 2020), https://ispe.org/pharmaceutical-engineering/ispeak/fda-
commissioner-hahn-lessons-learned-covid-19; Press Release, FDA, FDA Approves First
Treatment for COVID-19 (Oct. 22, 2020), https://www.fda.gov/news-events/press-
announcements/fda-approves-first-treatment-covid-19. Veklury (remdesivir) was the first
approved treatment for COVID-19 and this occurred on October 22, 2020. Id. This antiviral
drug is manufactured by Gilead for use in adult and pediatric patients 12 years of age and older
weighing at least 40 kilograms (about 88 pounds) for the treatment of COVID-19 requiring
hospitalization; however, the World Health Organization (WHO) recommended against its
use; see WHO Recommends Against the Use of Remdesivir in COVID-19 Patients, WHO
(Nov. 20, 2020), https://www.who.int/news-room/feature-stories/detail/who-recommends-
against-the-use-of-remdesivir-in-covid-19-patients; Stephen Hahn, Commissioner, Food and
Drug Admin.: The COVID-19 Pandemic -Finding Solutions, Applying Lessons Learned
(Jun.1, 2020) (available at https://www.fda.gov/news-events/speeches-fda-officials/remarks-
commissioner-stephen-hahn-md-covid- 1 9-pandemic-finding-solutions-applying-lessons-
learned); Press Release, CDC, Coronavirus (COVID-19) Update: FDA Announces Advisory
Committee Meeting to Discuss Janssen Biotech Inc.'s COVID-19 Vaccine Candidate (Feb. 4,
2021), https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-
update-fda-announces-advisory-committee-meeting-discuss-janssen-biotech-incs; see also
Press Release, FDA, Coronavirus (COVID-19) Update: FDA Authorizes Monoclonal
Antibodies for Treatment of COVID, FDA (Nov. 21, 2020), https://www.fda.gov/news-
events/press-announcements/coronavirus-covid-19-update-fda-authorizes-monoclonal-
antibodies-treatment-covid-19.
* Emergency Use Authorization for Vaccines Explained, FDA (Nov. 20, 2020),
https://www.fda.gov/vaccines-blood-biologics/vaccines/emergency-use-authorization-
vaccines-explained.
2021 ] The COVID-19 Modern Era Pandemic 169

vaccine. 8 Should celebrities advocate vaccination to stymie reluctance and

perhaps foster herd immunity?' 9 The hesitancy could be attributable to a
variety of factors such as politics, COVID-19 vaccine accuracy, safety and
effectiveness, and the accelerated urgency to approve a vaccine. 2 Suffice it
to say, political influence from the former White House administration in
2020 became so rampant that some individuals were reluctant to receive the
vaccine due to a lack of trust in the FDA authorization process. Further,
mistrust of government agencies, 'such as the CDC, fueled the public's
hesitancy.2 ' Interestingly, the willingness, or lack thereof, cannot necessarily
be attributed solely to political party affiliation; rather it is a combination of
factors such as mistrust of the speed of the authorization process.2 2 The
absolute right to refuse a vaccination will be examined through the lens of
the Supreme Court's decision in Jacobsonv. Massachusetts.23

III. SIGNIFICANCE OF PUBLIC HEALTH EMERGENCY DECLARATION

As mentioned, former Health and Human Secretary Azar declared a

public health emergency under the Public Readiness and Emergency
Preparedness Act (PREP) for Medical Countermeasures Against COVID-19

s Claudia Wells, The Best Evidence for How to Overcome COVID Vaccine
Fears,
SCIENTIFIC AMERICAN (Jan. 7, 2021), https://www.scientificamerican.com/article/the-best-
evidence-for-how-to-overcome-covid-vaccine-fears 1/.
i9 Sophie Haigney, Long Shot, 9-12 NY TIMES MAGAZINE, Jan. 24, 2021, at 9 (detailing
the use of celebrities in 1956 when Elvis Presley received a vaccination against polio
backstage just prior to "The Ed Sullivan Show"); Kareem Abdul-Jabbar, A Reason to Jump
the Vaccine Line, NY TIMEs, Feb. 2, 2021, at A23; see Julie Wernau & Paul Overberg, Shot
Skeptics Impede Herd Immunity Goal, WALL ST. J., Feb. 4, 2021, at A7; see also Sulan
Pulliam, Betsy McKay & Kris Maher, Vaccine Skeptics Join Forces with Critics of Mask
Rules, WALL ST. J. (Feb. 3, 2021), https://www.wsj.com/articles/vaccine-skeptics-join-forces-
with-antimask-crowd-11612284890.
20 Jarrett Ramos Lewis JR, What Is Driving the Decline in People's Willingness to Take
the COVID-19 Vaccine in the United States?, JAMA HEALTH FORUM (Nov. 18, 2020),
https://jamanetwork.com/channels/health-forum/fullarticle/2773320 (explaining that
although concerns about biological agents would be used after the September 11 attacks, 35%
would not get the vaccine).
21 Sandra Knispel, The Politicizationof the CDC was Under Way Before Trump, UNIV. OF
ROCHESTER NEWSCENTER (Oct. 23, 2020), https://www.rochester.edu/newscenter/cdc-
politicization-health-risk-assessment-459152/.
22 See, e.g., id. Pew Research Center data revealed that 86% of Democrats and 69%
Republications indicated a willingness to get the vaccine; see Alec Tyson, Courtney Johnson
& Cary Funk, U.S. Public Now Divided Over Whether to get COVID-19 Vaccine, PEw RES.
CTR. (Sept. 17, 2020), https://www.pewresearch.org/science/2020/09/17/u-s-public-now-
divided-over-whether-to-get-covid-19-vaccine/ (discussing concerns of the safety and
efficacy along with the speed of approval process); see also Thom File & Abinash Mohanty,
Around Half of Unvaccinated American Indicate They Will "Definitely" Get COVID-19
Vaccine, CENSUS BUREAU, (Jan. 27, 2021),
https://www.census.gov/library/stories/2021 /01/around-half-of-unvaccinated-americans-
indicate-they-will-definitely-get-covid-19-vaccine.html.
2
Jacobson, 197 U.S. at 23-24.
170 Widener Law Review [Vol. 27:165

pursuant to section 319 of the Public Health Services Act, for the entire
United States to aid in the nation's health care community response to the
COVID-19 outbreak.24 Azar also issued a Declaration pursuant to the PREP
Act to provide liability immunity for activities related to medical
countermeasures against COVID-19.25 A PREP Act declaration is for the
purpose of providing immunity from liability, and is different from, and not
dependent on, other emergency declarations. 26 By way of illustration, the
Bioshield Act of 2004 exempts certain federal contractors from federal and
state tort liability.2 7
Further, the PREP Act authorizes the Countermeasures Injury
Compensation Program (CICP) for individuals, or estates of individuals,
injured as a direct consequence of the administration or use of the covered
countermeasure such as a COVID-19 vaccine. 28 The issuance of this
declaration was critical in terms of emergency use authorization under
29
Section 564(b) of the Federal Food, Drug, and Cosmetic Act. Declarations
are far from a recent phenomenon; there have been others over the years
pertaining to the Ebola virus in 2016 and the Zika virus in 2017.30 As set forth
above, the PREP Act declaration affords immunity from liability; however,
COVID-19 vaccines are covered countermeasure under the Countermeasures

24 Renewal of Determination That a Public Health Emergency Exists, supra note 11;
Secretary Azar Declares Public Health Emergency for United States for 2019 Novel
Coronavirus, U.S. DEP'T OF HEALTH AND HUM. SERV. (Jan. 31, 2020),
https://www.hhs.gov/about/news/2020/01/31/secretary-azar-declares-public-health-
emergency-us-2019-novel-coronavirus.html; Alex M. Azar II, Public Health Emergency;
Supplementary InformationU.S. DEP'T. OF HEALTH AND HUM. SERV. OFF. OF THE SECRETARY
(Mar. 10, 2020), https://www.phe.gov/Preparedness/legal/prepact/Pages/COVtD19.aspx; see
Pub. L. No. 109-148, § 2, 119 Stat. 2680, 2819-20; Declaration Under the Public Readiness
and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed.
Reg. 15198; cf. 42 U.S.C. § 247(d).
25 The Secretary issued the Declaration pursuant to section 319F-3 of the Public Health
Service Act (42 U.S.C. § 247d-6d) to provide liability immunity for activities related to
medical countermeasures against COVID-19 public health emergencies. See 42 U.S.C. §
247d-6d; Renewal of DeterminationThat A Public Health Emergency Exists, supra note 11;
see also Public Health Emergency; Supplementary Information,supra note 24.
26 Pub. L. No. 109-48, § 2, 119 Stat. 2680, 2818.
27 BioShield Act of 2004, Pub. L. No. 108-276, § 2, 118 Stat. 835, 839 (2004).
28 42 U.S.C. § 247d-6e(b)l) (2005). Yet, in some situations the compensation provided
may be insufficient. See Bruesewitz v. Wyeth, Inc., 562 U.S. 223, 226 (2011) (deciding
whether 42 U.S.C. § 300aa-22(b)(1) of the National Childhood Vaccine Injury Act provided
total immunity to vaccine manufacturers from tort actions by those injured and seeking
compensation for injuries allegedly arising from defectively designed vaccines).
29 21 U.S.C. § 360bbb-3(a)(1) (2004).
s Notice of Amendment to the December 3, 2014, Declaration under the Public Readiness
and Emergency Preparedness Act for Ebola Virus Disease Vaccines, 81 Fed. Reg. 89471,
(Dec. 12, 2016); see Declaration Under the Public Readiness and Emergency Preparedness
Act for Zika Virus Vaccines, 82 Fed. Reg. 10365 (Feb. 10, 2017).
2021 ] The COVID-19 Modern Era Pandemic 17 1

Injury Compensation Program (CICP).3 ' Keeping the above declarations in

the forefront and its public protection stance, the United States Supreme
Court decision of Jacobson and a recent United States Supreme Court Order
will both be addressed.32

IV. RESISTANCE TO COMPULSORY VACCINATION AND THE RIGHT TO

REFUSE A VACCINATION

Over 100 years ago, in the early 1900s, the United States Supreme Court
was faced with the issue of "police power," or the power of state government
to protect public health balanced against the Constitution's protection of
personal liberty. 33 In the United States Supreme Court case of Jacobson v
Massachusetts, the Court upheld the Cambridge Massachusetts Board of
Health's (Board) authority to require vaccination of healthy adults against
the smallpox epidemic which could compromise the community 34 The
plaintiff, Henning Jacobson, an adult, had refused the vaccination for
smallpox and was fined $5.00.35 The Revised Laws of the Commonwealth,
e. 75, § 137, provided that:

[T]he board of health of a city or town if, in its opinion, it

is necessary for the public health or safety shall require
and enforce the vaccination and revaccination of all the
inhabitants thereof and shall provide them with the means
of free vaccination. Whoever, being over twenty-one
years of age and not under guardianship, refuses or
neglects to comply with such requirement shall forfeit
five dollars. 36

Subsequently, the Board of Health for the city of Cambridge adopted the
following regulation on February 27, 1902:

Whereas, smallpox has been prevalent to some extent in.

.

the city of Cambridge and still continues to increase; and

whereas it is necessary for the speedy extermination of
the disease that all persons not protected by vaccination
should be vaccinated, and whereas, in the opinion of the
board, the public health and safety require the vaccination

31 Countermeasures Injury Compensation Program (CICP), HEALTH RESOURCES

&

SERVICES ADMINISTRATION, https://www.hrsa.gov/cicp (last updated Nov. 2020); Pub. L. No.

109-148, § 2, 119 Stat. 2680, 2818.
32
Jacobson, 197 U.S. at 25.
33 See Jacobson, 197 U.S. at 25.
34
Id. at 38-39.
35Id.
at 14.
36
Id. at 12-13.
172 Widener Law Review [Vol. 27:165

or revaccination of all the inhabitants of Cambridge; be it

ordered, that all the inhabitants of the city who have not
been successfully vaccinated since March 1, 1897, be
vaccinated or revaccinated.37

Unlike today, where chronic diseases account for most deaths, at that time,
infectious diseases were the leading cause of death and states administered
39
public health initiatives. 38 The FDA did not even exist at that time. Yet
today, globalization has essentially required immunizations from infectious
diseases. COVID-19 is an example of a pandemic, perhaps reminiscent of
earlier time periods in history, and today Jacobson is still relied on for the
right of a state to protect the public. 40 Jacobson clarified that "the authority
of the state to enact this statute is to be referred to what is commonly called
the police power-a power which the state did not surrender when becoming
4
a member of the Union under the Constitution." ' As a corollary to the
COVID-19 pandemic, Jacobson set forth solid grounding regarding police
42
power in terms of public protection.
The United States Supreme Court recognized in Jacobson that "a
community has the right to protect itself against an epidemic of disease which
threatens the safety of its members."4 3 This case has been followed during
the COVID-19 pandemic, illustrated by the Tennessee Attorney General's
Office's citation to Jacobson in upholding the constitutionality of facemask
mandates." Following Jacobson, the question is whether the mandate is
arbitrary or unreasonable. 45 "[T] he Constitution does not recognize an
absolute and uncontrollable liberty."46 Succinctly stated, even though Mr.
Jacobson was a healthy adult he could not refuse vaccination because of the
epidemic society faced.47
Fast forward to the COVID-19 pandemic and undoubtedly religion could
undermine police power of a state to mandate restrictions during this
pandemic. In a recent United States Supreme Court Order, the application for

37
Jacobson, 197 U.S. at 12-13.
38 See Achievements in Public Health, 1900-1999: Control of Infectious Diseases, CDC
(Jul. 30, 1999), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm4829a1.htm (stating that
pneumonia, tuberculosis, and diarrhea and enteritis were the leading causes of deaths in 1900).
39
Pure Food and Drugs Act of 1906, Pub. L. No. 59-384, Chap. 3915, 34 Stat. 768 (1906)
(explaining that the 1906 Pure Food and Drugs Act officially established the FDA); see The
Pure Food and Drug Act, U.S. HousE OF REPS., https://history.house.gov/Historical-
Highlights/1901-1950/Pure-Food-and-Drug-Act/ (Last accessed Feb. 4, 2021).
40 See, e.g., Jacobson, 197 U.S. at 19, 28.
a Id at 24-25.
42 Id at 12-13.
43
d at 27.
4" Constitutionality of Governmental Mandate to Wear Face Coverings, No. 20-14, 2020
WL 4375355 (Tenn. Op. Atty. Gen. July 24, 2020).
as Jacobson, 197 U.S. at 27, 38.
46 West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1937).
a7 See Jacobson, 197 U.S. at 13, 33-34, 39.
2021 ] The COVID-19 Modern Era Pandemic 173

injunctive relief was partially granted regarding the enforcement of the

prohibition on indoor worship services yet was denied as to chanting and
singing.ag Succinctly stated, the Supreme Court lifted the state's ban on
indoor worship during the coronavirus pandemic; however, the Court left
intact the restrictions on singing and chanting. 49 Justice Roberts in his
concurrence, stated: "[F]ederal courts owe significant deference to politically
accountable officials with the 'background, competence, and expertise to
assess public health."'" 0 Justice Roberts concurred that singing indoors in fact
creates a heightened risk of transmitting COVID-19, but was concerned that
the state's policy was too aggressive. 1 Justice Barrett opinioned that if a
vocalist can sing in a Hollywood studio and not in her church, then the
California regulations cannot be viewed as neutral.5 Justice Kagan in her
dissent stated:

I fervently hope that the Court's intervention will not

worsen the Nation's COVID crisis. But if this decision
causes suffering, we will not pay. Our marble halls are
now closed to the public, and our life tenure forever
insulates us from responsibility for our errors. That would
seem good reason to avoid disrupting a State's pandemic
response. But the Court forges ahead regardless, insisting
that science-based policy yield to judicial edict. I
respectfully dissent.53

In light of the United States Supreme Court Order, California Governor

Gavin Newsom issued revised guidelines for indoor church services after the
Supreme Court lifted the state's ban on indoor worship during the coronavirus
pandemic and left intact restrictions on singing and chanting. 4
As to work situations, employers are reluctant to impose a strict
compulsory vaccination mandate. The Equal Employment Opportunity
Commission, in recent guidance, has specified exceptions which include a
documented disability which prevents receiving the vaccination and a

48
South Bay United Pentecostal Church et al. v. Newsom et al., 141 S. Ct. 716, 717 (2021),
(Roberts, C. J., concurring) (stating that if the writ of certiorari was denied than the order
would automatically terminate, however, if the writ of certiorari was granted the order would
terminate when the Court entered judgment).
49 Id

s° Id. at 716 (citing South Bay United Pentecostal Church et al. v. Newsom et al., 140 S.
Ct. 1613, 1614 (2020) (Roberts, C.J., concurring)).
s' South Bay UnitedPentecostalChurch et al., 141 S.Ct. at 717 (Roberts, C. J., concurring)
(mentioning his concern that the state offered little guidance specifically tailored to places of
worship, evidenced by their "zero" tolerance policy).
z Id. (Barrett, J., concurring).
s South Bay UnitedPentecostalChurch et al., 141 S.Ct. at 723 (Kagan, J., dissenting).
s4 Industry Guidance to Reduce Risk, CALIF. Gov. (last updated Feb. 24, 2021),
https://covidl 9.ca.gov/industry-guidance/.
174 Widener Law Review [Vol. 27:165

"sincerely held religious belief." 5 5 Yet, Jacobson still remains an often-cited

case for upholding police power and the right of a state to protect its
inhabitants.5 6
By way of illustration, in the 2020 opinion of Page v. Cuomo, Ms. Page
challenged the New York State executive order which required travelers to
quarantine for fourteen days due to COVID-19. 57 The court in Page opined:

Jacobsonwas decided just after the turn of the last

century, at a time when medical science was in its
adolescence if not still in its infancy. Because it endorses
an approach to constitutional analysis that has fallen out
of fashion, it is admittedly strange-and even a little
alarming-to discover that Jacobson is still considered
the right tool for evaluating state action taken to protect
public health. Yet unless and until the Supreme Court
revisits Jacobson and fashions a test that demands a more
particularized showing from public health officials in
light of the unbelievable medical achievements of the
twenty-first century, it remains a complete roadblock to
Page's claims.58

V. FINAL COMMENTARY

Keeping the above quote from Page in the forefront, the question becomes
will Jacobson survive? 59 The answer for the current pandemic should be in
the affirmative with the caveat that a court must still balance the interests of
the state to protect the public and the interests of an individual. Perhaps
Jacobson 60 is viewed as a roadblock to individual liberty and, admittedly,
the strides in medicine are noteworthy; however, the United States' COVID-
19 pandemic remains unprecedented. Therefore, this article concludes with
the words of Justice Harlan which still ring true today despite marked inroads
to medical achievements:

There is, of course, a sphere within which the individual

may assert the supremacy of his own will and rightfully
dispute the authority of any human government,

s What You Should Know About COVID-19 and the ADA, the RehabilitationAct, and
Other EEO Laws, EEOC (Dec. 16, 2020), https://www.eeoc.gov/wysk/what-you-should-
know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (explaining that if an
individual refuses a vaccine due to a disability and or strongly held religious belief, the
employer must made reasonable accommodation such as working remotely).
56
See Jacobson, 197 U.S. at 24-25.
s Page v. Cuomo, 478 F. Supp. 3d 355, 359 (N.D.N.Y. 2020).
58Page, 478 F. Supp. 3d at 371.
59
!d.
60
Jacobson, 197 U.S. at 11.
2021 ] The COVID-19 Modern Era Pandemic 175

especially of any free government existing under a written

constitution, to interfere with the exercise of that will. But
it is equally true that in every well-ordered society
charged with the duty of conserving the safety of its
members the rights of the individual in respect of his
liberty may at times, under the pressure of great dangers,
be subjected to such restraint, to be enforced by
reasonable regulations, as the safety of the general public
may demand. 61

Although decided over 100 years ago, Jacobson established a reasonable

inquiry which present day courts should respect. 62 Perhaps this case might
appear unfathomable in this day and age, yet Jacobson appears reasonable
when a state is confronted with a pandemic that, in reality, has imperiled
humanity. 63 Jacobson should be relied on for the common sense and clear
principle that a state mandated measure must have a substantial relation to
the public health crisis." Certainly, this applies to the COVID-19 pandemic
confronted by the United States.

6' Jacobson, 197 U.S. at 29.

62 See id. at 27-28.
63 See id. at 30-31.
See generallyJacobson, 197 U.S. at 26-29.