LIMITS OF JACOBSON UNDER THE NEW MAJORITY

Does Gorsuch's concurrence in Roman Catholic Diocese of Brooklyn v Cuomo (U.S. Supreme Court, November 25, 2020) signal the end of Jacobson's justification for a general vaccine mandate?

 

Gorsuch responding in Roman Catholic Diocese to Roberts in South Bay Pentecostal Church v. Newsom, 590 U. S. ___ (2020) writes that the former majority’s reliance in South Bay on Jacobson was wrong.

 

"Not only did the South Bay concurrence address different circumstances than we now face, that opinion was mistaken from the start." (Gorsuch, J., concurring).

 

"Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic? In the end, I can only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do."(Gorsuch, J., concurring).

 

Gorsuch found South Bay's reliance on Jacobson v. Massachusetts 197 U. S. 11 (1905) inapplicable, because it involved a different mode of analysis, arising out from a different right and different restriction. 

 

"Not only did the South Bay concurrence address different circumstances than we now face, that opinion was mistaken from the start. To justify its result, the concurrence reached back 100 years in the U. S. Reports to grab hold of our decision in Jacobson v. Massachusetts, 197 U. S. 11 (1905). But Jacobson hardly supports cutting the Constitution loose during a pandemic. That decision involved an entirely different mode of analysis, an entirely different right, and an entirely different kind of restriction."

 

If Gorsuch wanted only to find Jacobson's holding inapplicable to South Bay and Roman Catholic Diocese, would it not have been sufficient for him to simply draw the distinction between textually explicit rights (religious freedom ) from those hiding in the Constitution's penumbras (bodily integrity)?

 

"Even if judges may impose emergency restrictions on rights that some of them have found hiding in the Constitution’s penumbras, it does not follow that the same fate should befall the textually explicit right to religious exercise." (Gorsuch, J., concurring).  

Gorsuch distinguishes Roman Catholic Diocese from Jacobson based on the textually explicit rights in the Constitution and suggests that the opinion in South Bay could find safe harbor in the newness of the pandemic. But rather than leaving it there, Gorsuch explicitly states that the Chief Justice's use of Jacobson in South Bay to suspend the Constitution was a mistake. 

 

"THE CHIEF JUSTICE expressed willingness to defer to executive orders in the pandemic’s early stages based on the newness of the emergency and how little was then known about the disease...Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause. Today, a majority of the Court makes this plain. Not only did the South Bay concurrence address different circumstances than we now face, that opinion was mistaken from the start. To justify its result, the concurrence reached back 100 years in the U. S. Reports to grab hold of our decision in Jacobson v. Massachusetts, 197 U. S. 11 (1905)."(Gorsuch, J., concurring).

Gorsuch held Jacobson's mode of analysis, rational basis review, inappropriate to both South Bay and Roman Catholic Diocese because of the Constitutional right impacted. It is however Gorsuch's analysis on the nature of the restriction in Jacobson, which overturns Jacobson's use as justification for a general vaccine mandate. Specifically, in opposition to Dershowitz et al., Gorsuch elucidates that Jacobson never prescribed the use of police power to forcibly hold down citizens and plunge a needle into their arm. Conversely, the de facto consequences of the Massachusetts statute for vaccine refusal were limited to a de-minimis economic sanction of a $5 fine ( $140 today).

"Although Jacobson predated the modern tiers of scrutiny, this Court essentially applied rational basis review to Henning Jacobson’s challenge to a state law that, in light of an ongoing smallpox pandemic, required individuals to take a vaccine, pay a $5 fine, or establish that they qualified for an exemption. Id., at 25." (Gorsuch, J., concurring).

Jacobson's option to be fined rather than vaccinated, should not be lost on the New York State Bar, and Gorsuch's concurrence now makes it exceedingly clear that the right Jacobson was asserting was not against a forcible vaccine mandate, but the right not to pay a $5 fine.  

 

"Next, consider the right asserted. Mr. Jacobson claimed that he possessed an implied “substantive due process” right to “bodily integrity” that emanated from the Fourteenth Amendment and allowed him to avoid not only the vaccine but also the $5 fine (about $140today) and the need to show he qualified for an exemption. 197 U. S., at 13–14..." (Gorsuch, J., concurring).

While it is arguable Gorsuch would not have applied strict scrutiny if Jacobson's bodily integrity had been at issue, it is just as arguable that Gorsuch would require something more than a rational basis to mandate forcible vaccination. Regardless, Jacobson explicitly requires that for a vaccine to be mandated it must be considered safe and effective according to common knowledge. Thus, if the majority adhered to the explicit text in Jacobson, there would be little chance a forcible mandate of an investigational mRNA genetic therapy would be found constitutional, even under a rational basis test.

 

"The imposition on Mr. Jacobson’s claimed right to bodily integrity, thus, was avoidable and relatively modest." Id., at 36. (Gorsuch, J., concurring).

Prior to Roman Catholic Diocese Dershowitz opined:

"And if you refuse to be vaccinated, the state has the power to literally take you to a doctor's office and plunge a needle into your arm." 

Dershowitz also stated if the issue of a forcible vaccine mandate went to the Court it would be upheld 8 to 0 or 9 to 0. Given Gorsuch's concurrence in Roman Catholic Diocese, it is more likely the vote against a forcible Covid vaccine (unapproved investigational drug) would now be at least 5 to 4. 

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