Linda Poon is a staff writer at CityLab covering science and urban technology, including smart cities and climate change. She previously covered global health and development for NPR’s Goats and Soda blog.
To better understand the controversy over New York’s measles outbreak, you have to go back to the late 19th century.
Since the turn of the 20th century, mandatory vaccination has been one of America’s greatest weapons in not only battling outbreaks and eradicating certain diseases, but also preventing them. Though not without significant pushback from anti-vaxxers, who have been in the U.S. just as long.
That’s why to medical historians and ethicists, the controversy playing out over New York City’s mandatory vaccination order as the city battles a widespread measles outbreak is not an unfamiliar story. In fact, while anti-vaxxers are in the minority today—nationally, the median vaccine refusal rate among families with children in kindergarten is 2.2 percent—those who emerged in the late 19th century were fairly influential in loosening those laws.
New York City has seen 359 cases of measles since last October. Almost all are concentrated in Williamsburg, and involve unvaccinated children under 18. A little more than 300 were reported this year, accounting for almost half of the 626 cases in the U.S.—currently the second biggest outbreak since 2000, when measles was declared eliminated (meaning no continuous transmission for more than 12 months). The largest outbreak in the U.S. was in 2014, with 667 cases. Globally, there is a resurgence of measles, with cases up 300 percent since last year, according to UNICEF.
Last Thursday, a Brooklyn judge upheld the city’s emergency vaccination order after dismissing a lawsuit from families within an orthodox Jewish community who say the city had “insufficient evidence of a measles epidemic or dangerous outbreak” to justify its mandate. That same day, health officials also issued three civil summons to parents of unvaccinated children. The parents each face a $1,000 fine for violating the order. It’s the first time health officials actually issued a fine for such violations in more than a century, according to the Washington Post.
When it comes to legal challenges to mandatory vaccination, local governments have history on their side, according to James Colgrove, who studies the the ethics of public health policy at Columbia University. He’s also the author of the book, State of Immunity, which digs into the history and politics of vaccinations in America. “This is really settled law,” he says. “This has been heard by the [U.S.] Supreme Court over 100 years ago.” One hundred fourteen years ago, to be exact.
In 1905, Jacobson v. Massachusetts resulted in a landmark decision that established the constitutionality of compulsory vaccination laws when they are “necessary for the public health or safety” and when the community is “under the pressure of great danger.” The Supreme Court ruling came after a smallpox epidemic in Cambridge prompted the city board of health to issue a mandatory vaccination order, which was permitted under state law. When a pastor named Henning Jacobsen refused, citing bad reactions to past vaccinations, he was fined $5.
Jacobson appealed the fine and took the case to the highest court, claiming the order infringed on his 14th Amendment right to liberty. Ultimately, he lost. Justices sided with the state in a 7-2 vote.
But “mandatory vaccination” doesn’t mean that governments can force anyone to get a vaccine. In the majority opinion, Justice John Harlan explained that while governments could enforce vaccine mandates by imposing penalties like monetary fines on violators, forcibly vaccinating individuals against their will would be “cruel and inhumane to the last degree.” That decision has since been cited by judges upholding various mandatory vaccination laws in lower courts.
What the case also did was give momentum to anti-vaccination societies that had cropped up across the U.S., according to historian Karen Walloch, author of the book The Anti-Vaccine Heresy. “One of the legacies of that decision was it just made the anti-vaccinationists of those days redouble their efforts,” she says. Unlike anti-vaxxers today, the groups that formed in the 19th century were citing immediate physical reactions to early versions of the smallpox vaccines. People like Jacobson reported adverse reactions so painful they prevented them from working, according to Walloch, and related deaths were reported.
Anti-vaccinationist groups mobilized in various cities across the U.S. to fight local mandates. “They were a potent political force on the local level,” Walloch says of the movement. “They could take over school boards at times, they lobbied their state legislators, and they were behind all the laws that allow for these opt-out clauses.”
In the 1850s, for example, Massachusetts became the first state to require vaccination for children entering school. By the 1890s, the anti-vaccination groups convinced state legislators to amend the law to allow physicians to register children as unfit for the vaccine. While meant for sickly children, it became a loophole through which parents were able to send their healthy kids to public school without the required immunization. Seeking to abolish the mandate altogether, the Massachusetts Anti-compulsory Vaccination Society gave Jacobson both the financial and legal support for his defense.
Meanwhile, groups in other states were hoping that the Jacobson trial would lead to a federal decision clamping down on all compulsory vaccination mandates. When that failed, “they went back to ground-level politics and convinced many state legislators to modify their laws to allow various exemptions from vaccinations—medical, religious, philosophical,” says Walloch.
By 1927, a study from the U.S. Public Health Service found that only 13 states had laws authorizing compulsory vaccination, and four even had laws prohibiting it. Only 11 states required vaccinations for admission to public schools.
The turning point, says Walloch, came in the 1950s when public attitudes dramatically shifted amid a deadly outbreak of polio—a devastating disease that infected as many as 60,000 children in 1952 alone. That year, more than 3,000 died and thousands more were left paralyzed. In 1955, the development of the polio vaccine by Jonas Salk led to widespread immunization against the disease, and by the ‘70s, polio was largely wiped out in the U.S.
Anti-vaccinators dwindled in numbers, while physicians of the ’40s and ’50s experienced what historians like Walloch called the golden age of medicine.
Today, all 50 states have some sort of law requiring, at the very least, certain vaccines for students, with exemptions based on medical reasons. Almost all also grant religious exemptions, and 17 allow parents to opt out based on personal or philosophical beliefs.
In the wake of recent outbreaks, though, some lawmakers are pushing to remove some of those exemptions. Washington state passed a measure in the Senate just last week removing personal exemptions, and the bill is expected to also pass the House. California banned personal and religious exemptions three years ago, and is now considering tougher laws around medical exemptions. Legislators in both New York and New Jersey are also pushing to end religious exemptions.
The science behind current vaccines for childhood diseases like measles, mumps, and rubella is even more rigorous and advanced than in the 20th century. One dose of the measles vaccine is 93 percent effective, according to the Centers of Disease Control and Prevention. At the same time, they’ve been proven to be safe: The study that linked vaccines to autism and became a sticking point for modern-day anti-vaxers has long been debunked. Still, anti-vaccination sentiment persists, though in much smaller numbers than in the early 1900s, and fueled largely by misinformation and wariness toward state power.
The ethics of mandatory vaccination, meanwhile, are still a topic of debate—even among medical experts, says Colgrove. As he writes in his book, State of Immunity, the balance between public health authority and individual rights has always been a controversial part of America’s history with compulsory vaccination.
In early April, when New York City Mayor Bill de Blasio issued his mandate, the NYCLU swiftly issued a statement saying the provision would allow “people to be vaccinated without their consent, an extreme measure which is not provided for in the law and raises civil liberties concerns about forced medical treatment.” In response to the concerns, Dr. Jane R. Zucker, assistant commissioner for the city’s Bureau of Immunization at the Health Department, has told the New York Times that city will not force anyone to be vaccinated. Instead, those who refuse will be fined under the law, and the city’s effort would focus more on education.
In nearby Rockland County, where 199 measles cases have been confirmed, health officials pursued a more unusual, and ultimately unsuccessful, strategy in March: banning unvaccinated children from public spaces. State Supreme Court Judge Rolf Thorsen halted the ban in early April after parents challenged the order, ruling that the number of measles cases did not rise to an epidemic justifying such extraordinary and rare measure. And last Friday, a state appellate panel denied the county’s appeal to reinstate the emergency ban.
Officials there have since issued two new orders: The first is a narrower ban on people actually diagnosed with measles—and those exposed to them—from public spaces. The second says unvaccinated students cannot attend school unless they have a valid medical or religious exemption on file.
“The disagreement is often over whether a person who is unvaccinated does pose a threat to others,” Colgrove says, “and what’s the likelihood and the magnitude of the threat.”
In Rockland County’s case, for example, the judge ruled that 166 cases (at the time) among 330,000 residents—equal to less than 1 percent of the population—is not evidence of a wide enough spread to justify the county executive’s actions.
Colgrove thinks the case for mandatory vaccination is easy to make in the midst of an outbreak, particularly of a disease that spreads as efficiently as measles. Health officials confirmed last Tuesday that 38 of 39 measles cases in Oakland County, Michigan, can be linked to just one individual—from New York.
“I would say the argument that people most often make to justify compulsory vaccination is the idea of preventing harm to others,” says Colgrove. “And I think that’s a pretty powerful ethical argument.”