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70 Buff. L. Rev. 131 (2022)
The Irrepressible Myth of Jacobson v. Massachusetts

handle is hein.journals/buflr70 and id is 139 raw text is: Buffalo Law Review VOLUME 70 JANUARY 2022 NUMBER 1 The Irrepressible Myth of Jacobson v. Massachusetts JOSH BLACKMANt ABSTRACT During the COVID-19 outbreak, Jacobson v. Massachusetts became the fountainhead for pandemic jurisprudence. Courts relied on this 1905 precedent to resolve disputes about religious freedom, abortion, gun rights, voting rights, the right to travel, and many other contexts. But Justice John Marshall Harlan's decision was very narrow. It upheld the state's power to impose a nominal fine on an unvaccinated person. No more, no less. Yet, judges now follow a variant of Jacobson that is far removed from the Lochner- era decision. And the Supreme Court is largely to blame for these errors. Over the course of a century, four prominent Justices established the irrepressible myth of Jacobson v. Massachusetts. This myth has four levels. The first level was layered in Buck v. Bell (1927). Justice Holmes recast Jacobson's limited holding to support forcible intrusions onto bodily autonomy. The law did not involve forcible vaccination, but Holmes still used the case to uphold a compulsory sterilization regime. The second level was layered in 1963. In Sherbert v. Verner, YProfessor, South Texas College of Law Houston. 131