Can Idahoans really be required to get vaccinated for Covid-19?

Hennings Jacobson strongly objected to the state’s requirement that he be vaccinated. He argued that “a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.” Similar arguments have been made by others around the State of Idaho in recent months.

Jacobson’s argument was presented to the U.S. Supreme Court on a cold December morning in 1904. He objected to a Massachusetts law requiring vaccination against smallpox. The Supreme Court upheld the law, saying that the U.S. Constitution “does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from all restraints.” The Court held in Jacobson v. Massachusetts, 197 U.S. 11 (1905) that the health and safety of society took precedence over Jacobson’s objections to being vaccinated. It is still the law of the land these 116 years later.

The State does have the constitutional right to require a wide range of what might seem to be coercive measures for the protection of society. Idaho Code section 39-4801 requires immunization of kids from preschool to 12th grade as a condition for attending school. Current school requirements include DTaP, Polio, MMR and Hepatitus B.

Idaho’s Clean Indoor Air Act, which is based on legislative findings that secondhand smoke causes injury to members of society, prohibits smoking in a wide range of public venues. When it was under consideration in the Legislature, many raised Jacobson-like arguments against it, but it is accepted public policy today.

The State requires most employers to provide worker’s compensation protection for the benefit of their employees. Automobile owners must carry liability insurance for the protection and compensation of others. Parents must have child safety seats for the protection of their children. We all must have and use automobile seat belts. These requirements just scratch the surface of the obligations the government imposes upon us to protect ourselves and society. The State also has the power to stem a pandemic.

There is good news on the pandemic horizon. Experience with the Covid-19 vaccines establishes that they are safe, effective and a sure way to stop the pandemic in its tracks, provided that at least 70% of the population becomes fully vaccinated. Since the first of the year, about 99% of Covid-19 deaths have been among the unvaccinated. The State can and should require people in areas threatened by the virus to get vaccinated.

The bad news is that there is no chance the Idaho Legislature would ever take effective action to protect the public from the virus by requiring vaccinations. Because only 45% of Idahoans are fully vaccinated, our people remain vulnerable to the disease.

The job of protecting our vulnerable population has fallen by default upon the private sector. Employers can and should require employees who interact with the public to get vaccinated as a condition of employment, particularly in the healthcare industry. Thanks to St. Luke’s, St. Alphonsus, Primary Health and other health care systems across the State for taking this common sense step to protect the public. On the national level, medical groups representing millions of doctors, nurses and other health care workers have done likewise. The VA is requiring front-line health workers to get vaccinated.

With the Legislature’s abdication of its responsibility to safeguard the health and safety of Idahoans, private citizens and businesses must step forward to get the job done. Otherwise, our society will fall victim to the “anarchy” that the Supreme Court said would occur if everyone could make their individual choice of whether or not to get vaccinated against a dangerous disease.

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4 thoughts on “Can Idahoans really be required to get vaccinated for Covid-19?”

  1. Thanks, Jim. Had not heard of Jacobson v. Massachusetts in 1905. Great information, as always!

  2. In response the question, ‘Can Idahoans really be required to get vaccinated for Covid-19?’, the answer is no.
    These vaccinations are authorized under an Emergency Use Authorization (EUA). EUA does not allow for mandates according to existing federal law. That is:
    There is a distinction between the past flu vaccines and the COVID 19 vaccines. And that is that the COVID 19 vaccines fall under the Emergency Use Authorization. This difference is significant as other regulatory protocols must be followed.
    This mandate conflicts with federal law. As noted below.
    Section 564 of the Federal Food, Drug, and Cosmetic Act
    Conditions of Authorization—The FDA may establish conditions on the use of a product under an EUA. For unapproved products, FD&C Act §564 requires the FDA commissioner (to the extent practicable given the circumstances of the emergency) to establish certain required conditions on an EUA that the commissioner finds necessary or appropriate to protect public health and permits the commissioner to establish other conditions that he or she finds necessary or appropriate to protect public health.2 Such conditions include:
    • A requirement to disseminate information (e.g., fact sheets) to healthcare professionals or authorized dispensers and prospective patients or other consumers regarding the EUA, the product’s significant known and potential benefits and risks, and the extent to which such benefits and risks are unknown.
    • Available alternatives and their benefits and risks.
    • For prospective patients and consumers, the option to accept or refuse the product, any consequences of refusal, and alternatives to the product.
    • Other conditions such as restricted advertising, distribution, and administration; adverse event reporting and monitoring; data collection and analysis; recordkeeping and records access; and compliance with Current Good Manufacturing Practice (CGMP).2,6

    Also, by forcing it as a mandate you are using coercion to force compliance.
    This conflicts with the ‘Common Rule of Informed Consent.’ As noted below.
    Code of Federal Regulations
    TITLE 45
    PART 46
    §46.116 General Requirements for Informed Consent.
    (2) An investigator shall seek informed consent only under circumstances that provide the prospective subject or the legally authorized representative sufficient opportunity to discuss and consider whether or not to participate and that minimize the possibility of coercion or undue influence.

    As per these regulations, forced mandating is a criminal offence.
    And in response to the Supreme Court ruling in ‘Jacobson v. Massachusetts, 197 U.S. 11 (1905)’, it should be repealed. The science has changed considerably since 1905 and the historical use of this running should be examined. This miscarriage of justice also removed the ‘Freedom of Religion’ protections of the First Amendment of the U.S. Constitution.

    Jacobson’s should have argued ‘ineffective assistance of counsel’ to demand a retrial in the court proceedings, as his counsel did bring up any objections to religious liberties in court (as far as I know). A review of Jacobsen past experience with vaccinations documents that he had an adverse event with a small pox vaccination in Sweden. Which was his reason for refusal. From a religious perspective, Jacobson refusal can be linked to King David’s choice between of ‘… falling into the hands of God for his mercies are great, but do not let me fall into the hand of man.’ He was, as a pastor, willing to bear God’s mercy rather than man’s cruelty.
    Secondly, the Supreme Courts case should have been moot, in that the trial was help three years after refusal and there could be no linked adverse outcome.
    Thirdly, if the vaccine was effective to protect the vaccinated; then his decision to not vaccinate would only end in an adverse outcome for himself.
    Fourthly, the Supreme Court decision was based on the question, ‘whether the state had overstepped its own authority and whether the sphere of personal liberty protected by the Due Process Clause of the 14th Amendment included the right to refuse vaccination.’ Ruling favorable to the ‘state’ was based on believing that the ‘Board of Health’ of Massachusetts had the overall authority in making health decisions for the citizens of Massachusetts.
    The courts ruling set a dangerous precedent for the people of the United States. In that a small group of people can force compliance to any of a number of whims of the state. And that judgments by the justices of the court show their lack of understanding of the significant future effects of their rulings.
    Case in point, Buck vs Bell, The Supreme Court Ruling That Led To 70,000 Forced Sterilizations (of those deemed feeble-minded). In the courts’ opinion, Quote, Justice Oliver Wendell Holmes, Jr.
    We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.
    Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) also points out the significance of prior rulings in they had a probable effect on the state of Oklahoma to issue ‘A statute of Oklahoma (that) provides for the sterilization, by vasectomy or salpingectomy, of “habitual criminals”. The court ruled against the state in that ‘As applied to one who was convicted once of stealing chickens and twice of robbery, held that the statute violated the equal protection clause of the Fourteenth Amendment. P. 316 U. S. 537.’ So then here ‘criminals are found a ‘different breed’ from the feeble-minded. Although, eugenicists would beg to differ.
    One can see the intertwined connections of eugenicists at work … a 1924 immigration law, which was inspired by eugenicists, that prevented Anne Frank’s family from entering the U.S. Nazis borrowed from the U.S. eugenics sterilization program.
    We must ask as educated, rational people; where is this government moving to following forced vaccinations and mask mandates?
    Thank you, Jim Jones for an open are for comment on this subject.
    I have writing to the Press on similar topics, which were never published.
    And I hope that you will use your journalistic freedom to express ideas and contrary to the mainstream for the benefit of the ‘Freedom of the Press.’,-Drug,-and-Cosmetic-Act-Fact-Sheet/

    1. Roy: You are wrong but I’m publishing your comment anyway. Two United States Circuit Courts of Appeal have considered the issue, reviewed some of your contentions, relied upon the Jacobson v. Massachusetts decision and upheld vaccination mandates. The conservative Fifth Circuit upheld a mandate in Bridges v. Houston Methodist Hospital–s–and the Seventh Circuit upheld a mandate by Indiana University, requiring students to get vaccinated–

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