More than 100 years of Supreme Court precedents may complicate Florida vaccine fight

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TAMPA, Fla. (WFLA) — As Florida state leadership continues to fight for footing in the battle over school mask mandates and new federal COVID-19 vaccine requirements, more than 100 years of Supreme Court precedent could pose challenges to the state’s legal arguments in court.

President Joe Biden announced new federal vaccination requirements last week for all federal employees, federal contractors and the staff of businesses with 100 or more employees. Florida Gov. Ron DeSantis has indicated he opposes those mandates and will challenge them in court.

Judge John Cooper, the district court judge in the Scott vs. DeSantis school mask lawsuit, cited two cases in Florida that limited individual liberty where public health and public good begin. The cases stretch back in history to 1914 and 1939.

Federally, a 1905 case in the Supreme Court of the United States ruled similarly, focusing particularly on public health and vaccinations.

Taken together, the three court cases may spell a difficult fight for opponents of mask mandates and mandatory vaccinations in Florida, as the appeals process begins to bring back the state’s ban on mask policies in schools.

With an eye on court precedent and upcoming legal battles, let’s break down those three cases and how they may affect Florida’s fight for or against vaccine and mask mandates.

1905: Jacobson v. Massachusetts

Smallpox was largely eradicated by 1980, according to the U.S. Centers for Disease Control and Prevention. Since then, there have been no naturally occurring cases of smallpox.

In 1902, when the National Institute of Health says smallpox was a “recurrent threat,” the Cambridge, Mass. board of health ordered that all adults be vaccinated, or face a $5 penalty fine. In current dollars, that’d be about $100.

A man named Henning Jacobson refused to be vaccinated. Jacobson claimed that he and his son had reacted badly to other vaccinations they’d received. At that time, there was no way to force someone to be vaccinated. He was fined, then appealed that fine to the U.S. Supreme Court.

In a seven-to-two ruling, the Supreme Court of the United States ruled against Jacobson, on the grounds that the state of Massachusetts’ mandate was used with the “authority of a state to enact quarantine laws and ‘health laws of every description;'” and “such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”

For the court’s majority opinion, Justice John Marshall Harlan wrote that the rights and freedoms of individuals is limited by the safety of the general public.

“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, especially of any free government existing under a written constitution, to interfere with the exercise of that will,” Harlan wrote. “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.”

Perhaps in an echo of the future, Harlan gave the example of citizens coming in to port where disease had been present on a ship transporting Americans.

An American citizen arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, he, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station, until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared.

Jacobson v. Massachusetts 7-2 Opinion, written by Justice Harlan (1905)

Relying upon older court precedent regarding the 14th Amendment’s liberties, Harlan wrote that an American “may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions” to join the military and risk harm in its defense.

Using that same logic, Harlan said it is the power of the public to protect itself from harm, including in cases of control of one’s body and submitting to regulations established by local authorities and sanctioned by the state to protect the public against collective dangers.

Pandemic precedent

Focusing on Jacobson v. Massachusetts, analysts from the Center for the History and Ethics of Public Health, Department of Sociomedical Sciences from Columbia University’s Mailman School of Public Health say that the case is “one of the most important pieces of public health jurisprudence.”

The authors, Dr. James Colgrove and Dr. Ronald Bayer, wrote in 2005 that the SCOTUS decision made the argument that “freedom of the individual must sometimes be subordinated to the common welfare” and that the court “upheld the authority of states to pass compulsory vaccination laws.”

Colgrove and Bayer wrote that what’s changed in the century since Jacobson is the strategy that public health uses to enact policies, shifting from requiring health protocols to focusing on health education to convince the public to follow the policies instead, beginning during the end of the 1960s.

Three professors from Boston University took the opposite approach to interpreting the way individual liberties and public health powers were enacted, following Jacobson.

At the time, Wendy K. Mariner, JD, LLM, MPH, George J. Annas, JD, MPH, and Leonard H. Glantz, JD say, SCOTUS “had no difficulty upholding the state’s power to grant the board of health authority to order a general vaccination program during an epidemic.”

Mariner and her co-authors go further, saying that “Harlan confirmed that the Constitution protects individual liberty and that liberty is not ‘an absolute right in each person, to be, in all times and in all circumstances, wholly free from restraint.”

The precedents set in previous court cases for limiting the freedoms argued for by anti-vaccine and anti-mask Floridians add to the already complicated debates being waged across Florida and the U.S.

In 1905, it was smallpox. Now, it’s the coronavirus.

Still, the Jacobson v. Massachusetts court case is just one case relevant in Florida as the state’s appeals court weighs the legality of mask mandates in schools, and the state government prepares to fight the latest federal vaccine requirements.

Two other cases in Florida’s legal history decided by the Florida Supreme Court and referenced in the decisions on Scott v. DeSantis provide some judicial precedent to the legal limits of individual liberty for public health and public good.

Both Florida cases were referenced in recent decisions on masks in schools by Judge Cooper, in the 2nd District Court, as he chose to permit mask mandates in Florida’s schools.

1914: Dutton Phosphate v. Lawton Priest

In 1910, a Levy County man named Lawton Priest sued the Dutton Phosphate Company over three of his cattle falling into a hole that was unfenced and “left open by the fault and negligence of defendant,” Dutton Phosphate.

Priest sued for the cost of the three cattle, all of which died in the hole as a result of being unable to escape the “pit” through no fault of their owner.

In the court’s application of state statutes to decide for Priest, the Florida Supreme Court relied on a similar argument to that made by Justice Harlan in Jacobson v. Massachusetts:

“The statute whether strictly or liberally construed is general and quite definite in its terms; its purpose and practical operation manifestly relate to and tend to conserve the general welfare under the police power of the State,” according to the judgment, written by Justice James Whitfield, who served the court from 1904 to 1943.

Again, the court’s 1914 ruling puts public good and public health or safety before individual liberties or rights, and authorized the state’s “police power” for the “general welfare” of the public.

1939: State ex rel. Hosack v. Yocum

The importance of the general welfare of the public overruling individual freedoms is supported again by the Florida Supreme Court in 1939, when Bud Hosack and Israel Pearl sued Miami Beach Chief of Police, H.V. Yocum over an ordinance that sought to control how taxi drivers could or would encourage tourists to go to specific hotels or accommodations in order to receive “bonuses” from the establishments.

In Justice Roy Harrison Chapman‘s opinion, writing for the court majority, described the intention of the ordinance through a history of the practice it sought to address.

From the case writings, published by cite.case.law from Harvard Law School’s Caselaw Access Project:

Hotel managers would offer taxi drivers bonuses for each guest brought to their hotels and the drivers, desiring to earn the extra money, would resort to unscrupulous methods to induce the passengers while in the taxicabs to stop at the driver’s hotels. If the passenger was undecided where to stop, the driver would recommend his hotel. If the passenger ordered him to a hotel of his own selection, the driver would reply that his hotel was filled and could not accommodate him. It developed that the guests were not only annoyed but the hotels were being burdened with a heavy expense. The taxicab companies refused to discipline their drivers, and the practice of bonuses given by the hotels to the drivers could not be controlled. Guests were diverted from one hotel or apartment house to another by similar methods. The City of Miami Beach concluded that the solicitation of guests and their diversion from one hotel or apartment house to another by a taxi driver constituted a traffic menace, became annoying to their tourists, and was a deceptive practice, and likewise a harmful misrepresentation on the part of the taxi drivers, so under the police power of said City the Ordinance now before the Court was adopted.

“The factual situation” of State ex rel. Hosack v. Yocum, 136 Fla. 246, 186 So. 448 (1939)

Breaking down the ordinance and legality in play, Chapman references the earlier opinion written in 1914 by Justice Whitfield, as well as another case Levy v. Stone.

Citing Whitfield, Chapman wrote that contentions by the plaintiffs arguing that the Miami Beach ordinance’s authorization of police powers was not justified was refuted by earlier court findings, such as those of Dutton Phosphate Company v. Priest in 1914.

Additionally, Chapman cited Levy v. Stone, where the court found that “an ordinance could be adopted under the police power of a city to protect the public against loss from fraudulent or unscrupulous practices.”

Looking to current events, impacts on Florida

While Judge Cooper’s order to vacate the stay on Scott v. DeSantis was reversed by a higher court, blocking mandates in schools and allowing the Florida Board of Education to sanction school districts and level penalties, more legal battles are coming with the advent of President Biden’s latest federal employee vaccine requirement.

While an economist with the Bureau of Labor Statistics says it does not produce data on what it calls publicly-owned establishments, it was able to confirm that as of the most recent reports, 147,300 federal employees lived in Florida, when seasonally adjusted.

Additionally, the bureau said they would not “have data specific to number of people employed in businesses with 100 or more employees” because they publish data for employment based on state, metropolitan statistical areas and industry.

State numbers from the Florida Department of Economic Opportunity data confirmed the same number of federal employees as of July 2021. The latest data through August will publish on Sept. 17.

The DEO has not responded to requests for more detailed data as far as business sizes, and the split between federal employees or federal contractors. The Bureau of Labor Statistics also did not differentiate between the two subgroups in terms of federal workers.

With the governor’s promise to fight back against the latest Biden vaccine mandate and cities that defy his orders to ban mask mandates and vaccine passports, it is so far unclear exactly how many Floridians could face backlash from the state or their cities.

Copyright 2021 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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