Texas Attorney General's Opinion
on Jacobson v. Massachusetts Echoes Legal Concept that
First Appeared in A Voice for Choice Legal Challenges in 2016

In 2016, A Voice for Choice brought forward a lawsuit, Love v California,to argue that removing the Personal Belief Exemption from school vaccination requirements was unconstitutional in three ways: Bodily Autonomy, Parent Rights and Education is a fundamental right, each of which had been upheld by the Supreme Court individually. Specifically, AVFC argued that the court must adhere to strict scrutiny when deciding the merits of the case. We knew the other side would use Jacobson v. Massachusetts, to argue their case, so we preempted that by arguing that the courts and the world has evolved over the past 100 years, and that strict scrutiny had to be applied. While the judges in our case did not agree with this argument, last month Texas Attorney General, Ken Paxton, concluded that Texas public schools may not exclude students who lack vaccinations, when such vaccinations are unrelated to the epidemic (Read Opinion Here).  In his legal opinion on the same, Paxton construed the state's vaccination-mandate powers to be limited, and applicable only when connected to immediate danger during a pandemic.  Paxton thus became the latest major legal authority to endorse this conception of the law, joining the United States Supreme Court, which appeared to acknowledge the same recently, based on Justice Neil Gorsuch's concurrence in Roman Catholic Archdiocese of Brooklyn v. Cuomo, and last year’s opinion by United States District Court for the Western District of Pennsylvania’s Judge William Stickman IV, in The County of Butler vs Wolf.

When exercising pandemic powers -- everything from halting protests to mandating vaccines -- governments often cite a 115-year-old case, Jacobson v. Massachusetts, which allowed a city to issue small fines for people refusing a vaccine during an epidemic.  In a series of lawsuits spanning from 2017-2019, A Voice for Choice argued that the Jacobson case must be read narrowly for three reasons.  (1) The facts of the case were narrow.  (2) It issued before modern Due Process concepts were articulated by the Supreme Court. And (3) Jacobson has been used by "Big Government" to justify everything from vaccine mandates to forced sterilization.  For those reasons, A Voice for Choice argued that the government's Jacobson powers should be viewed as limited.

California courts rejected those arguments.  But with Justice Gorsuch and the Texas Attorney General now echoing them, and further asserting, like A Voice for Choice did, that the Jacobson holding does not mean that governments can trample religious beliefs during a pandemic, a clear trend is emerging toward restraining governments' claims of near-unlimited pandemic powers. 

While this opinion does not overrule Jacobson v Massachusetts, it gives hope that more judges will understand the necessity of applying strict scrutiny to cases where civil liberties are infringed by public health orders, so that cases like A Voice for Choice’s SB277 case would have had a fair chance.

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C

Christina Hildebrand
President/Founder
A Voice for Choice Advocacy, Inc.
[email protected]
www.AVoiceForChoiceAdvocacy.org