- "The Least Vaccinated of Any Civilized Country":Personal Liberty and Public Health in the Progressive Era
Epidemic disease, like war, is the health of the state. Since the dawn of the American Republic, state and local governments have wielded powers both plenary and plentiful to defend the people against smallpox, yellow fever, cholera, and other pestilences. Individual liberty and property rights melted away before the state's power—indeed its inherent legal duty—to protect the population from peril. Under the broad authority of the police power, state and local governments in the nineteenth century confined suspected disease-carriers against their will, established armed quarantines on land and at sea, seized private homes for smallpox pest houses, and enacted, in the approving words of the U.S. Supreme Court, "health laws of every description."1
The rise of modern public health administration in the United States during the Progressive Era (1890–1920) opened up a new set of constitutional questions and a new field of struggle. In the spirit of progressive statecraft, modern public health administration joined medical science to state police power in an ambitious effort to conquer disease, protect commerce, and save lives. The rubric of public health law covered an extraordinary range of government activities: yellow-fever quarantines and medical inspection of immigrants at the nation's borders, factory inspections and work regulations in the industrial heartland, tenement laws and pure milk standards in the cities. But the most salient public health struggle of the era arose at precisely the point where state power penetrated the skin. [End Page 76]
In the wake of the late nineteenth-century scientific revolution called the "germ theory," which traced the origins of disease to specific microorganisms such as viruses, scientists in Europe and the United States developed new vaccines, serums, and antitoxins for fighting rabies, diphtheria, bubonic plague, and other diseases. At the turn of the twentieth century, though, "vaccination" was still synonymous with the pre-germ theory technology, developed in the late eighteenth century, of inoculating people with the cowpox virus to induce immunity against small-pox. The vaccination "operation" lasted but a few minutes. The doctor took hold of the patient's arm, scraped and scored the skin with a needle or lancet, and dabbed on the vaccine material, which contained live vaccine virus. If the virus "took," producing a distinctive pocklike scar, the patient normally enjoyed immunity from smallpox for five to seven years, sometimes longer. Because the smallpox virus (variola) needed human hosts to survive and proliferate—there was no other animal or insect vector for this disease—vaccination protected not only the individual but the entire community.2 Upon that scientific fact rested the ethical and political logic of compulsory vaccination.
Smallpox vaccination was introduced in America in 1800, but the first compulsory vaccination laws did not appear until the mid-1850s, and such measures did not become commonplace until the late nineteenth century. By the 1890s, the American regime of compulsory vaccination included federal inspection of immigrants, some provision for compulsory vaccination of public schoolchildren in most states, and universal vaccination orders issued by local health boards during epidemics. The kind and degree of compulsion varied: from the loss of a public benefit (education) to the threat of a penal sanction (fine or imprisonment) to physical force. In normal times, health authorities strived for voluntary compliance. Smallpox epidemics were not normal times. The historical record is filled with moments when local resistance from groups already marginalized by their class status, their race, or their nationalities was met with raw police force. From Alabama mining camps to Chicago lodging houses, from the tramp hotels of the New York Bowery to the barrios of Laredo, the vaccinator's lancet and the policeman's club were fast friends.3
In the United States, as in Great Britain and other countries during the same period, compulsory vaccination engendered organized political opposition, crowd actions, innumerable acts of everyday resistance, and a flood of litigation. Between 1890, when the first legal challenge reached a state appellate court, and the end of World War I, the American legal system handled hundreds of suits concerning compulsory smallpox vaccination.4...