To the editor:

Michael Knudson, in his letter of Aug. 29 argued that the leading Supreme Court precedent holding mandated vaccinations constitutional, Jacobson v. Massachusetts, 197 U.S. 11 (1905), is in conflict with the Court’s earlier holding in Union Pacific Railway Co. v. Botsford, 141 U.S. 250 (1891), purportedly quoting that Court's ruling as, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”

This quote, however, appears nowhere in the holding of the Union Pacific Court, which actually reads as follows:

“No right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law.” Union Pacific Railway Co. v. Botsford, 141 U.S. 250 (1891), at 251.

Key to the holding is the phrase, “unless by clear and unquestionable authority of law.”

This case involved the issue of whether a court could force a plaintiff to be examined by the defendant’s doctors, not for purposes of medical treatment or public health emergency, but simply for corroborating evidence of a personal injury claim.

The case in Jacobson, on the other hand, involved whether Boston could mandate smallpox vaccinations during a deadly pandemic, and the Court affirmed that it could indeed, as it had the unquestionable constitutional authority to protect the general welfare during a public health emergency. It held as follows:

“The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State. It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine.” Jacobson v. Massachusetts, 197 U.S. 11 (1905) at p. 12.

The Supreme Court followed the ruling in Jacobson as recently as 2019, so it is still good law after 116 years. The Union Pacific case, conversely, is what we lawyers call, “inapposite.”

If Knudson wishes to continue to play lawyer and re-attempt legal research, he might want to start by looking up that word, because, having seen some of his other legal ramblings published in this paper, that word applies to all of them.

Theodore Bosen

Berlin

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Bosenlaw

The name is Theodore "Bosen"

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