Sketch of residents of foreign birth in Milwaukee, Wisc., resisting...

Sketch of residents of foreign birth in Milwaukee, Wisc., resisting the transfer of patients to an isolation hospital during a smallpox outbreak circa 1894. Credit: Arkell Company via Library of Congress

A contagious virus that has killed millions — and a free vaccine to halt the spread. A religious litigant’s objection to a vaccination mandate he challenges as "assault" and "unreasonable, arbitrary and oppressive." Fights over governmental power to protect the public health versus an individual’s bodily autonomy and civil liberties.

Coronavirus in 2021? No, smallpox in 1905, when the U.S. Supreme Court handed down what is still considered the most influential public health ruling in American jurisprudence: that the Constitution doesn’t bar jurisdictions like Massachusetts from mandating inoculation for men like Cambridge pastor Henning Jacobson.

But now, American courts are confronting a surge of challenges seeking to overturn government public-health mandates — lawsuits unseen in the nation’s history, both in number and scope — at a time after the courts have recognized greater personal privacy and medical rights that didn’t exist in the early 20th century.

"We’ve seen more litigation within this space in the last year than we’ve seen within the last hundred years, quite honestly," said Prof. Michele Goodwin, director of the Center for Biotechnology and Global Health Policy at the University of California, Irvine School of Law. She added: "We’ve never seen this level of challenge."

On Long Island, there are at least three pending lawsuits, filed this month alone, challenging pandemic mandates:

None of the plaintiffs or their lawyers returned messages seeking comment for this story.

Late Friday, the U.S. Court of Appeals for the 2nd Circuit temporarily blocked New York City Mayor Bill de Blasio’s vaccine mandate for public school personnel, which was to go into effect Monday. Under the mandate, those who refuse — about 20% remained unvaccinated as of Sept. 22 — could lose their jobs.

Health care workers protest against being forced to get the...

Health care workers protest against being forced to get the COVID-19 vaccine, outside the New York State Office Building in Hauppauge on Aug. 27. Credit: Newsday/Alejandra Villa Loarca

Nationwide, there are dozens, if not hundreds, of lawsuits advancing similar arguments to the Long Island cases, Goodwin said. Most legal challenges to coronavirus pandemic measures have so far been unsuccessful, said David Studdert, a professor of law and medicine at Stanford.

Such litigation is a particularly American phenomenon, according to Conrad Nyamutata, a senior lecturer in law at De Montfort University in the United Kingdom, who has written about how nations have responded to pandemics.

George Washington issued mandate

Goodwin notes that vaccine mandates date to the founding of the United States of America; General George Washington required his troops be inoculated against smallpox, writing in 1777, "We should have more to dread from it, than from the Sword of the Enemy," according to the Library of Congress.

In addition to the Jacobson smallpox case, the court ruled in 1922’s Zucht v. King that schools could refuse admission to unvaccinated students.

Henning Jacobson, who refused vaccination during a smallpox epidemic in...

Henning Jacobson, who refused vaccination during a smallpox epidemic in Cambridge, Mass., in 1905. Credit: New England Historical Society

The law on vaccine mandates is fairly well-established: "The courts have some guideposts," particularly from requirements in every state that schoolchildren get their shots, Studdert said. But regarding masking mandates, "we don’t have a lot of legal precedent to look at in understanding how the courts will decide these cases."

Another test of executive power comes in disputes over bans — by Red State governors in places like Texas and Florida — on localities imposing mandates, he said.

Judge: 'Community has right to protect itself’

At the turn of the 20th century, as a smallpox outbreak swept the Northeast, Henning Jacobson refused Cambridge’s vaccine mandate for adults, citing the "great and extreme suffering" when he was vaccinated at age 6 in his native Sweden.

But the Supreme Court sided with the government, with Justice John Marshall Harlan writing that the government’s need to control the pandemic outweighed Jacobson’s desire to avoid vaccination.

"Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members," he wrote.

But in the 116 years since Jacobson, U.S. Supreme Court jurisprudence has broadened to establish greater rights to bodily autonomy and privacy, according to Mark Hall, a professor of law and public health at Wake Forest University School of Law in Winston-Salem, North Carolina.

Those rights, largely unrecognized until later in the 20th century, came through cases such as on contraception, sexuality and abortion.

Indeed, the Syosset nurses’ lawsuit explicitly invokes Roe v. Wade, the 1973 case establishing the right to abortion, and Planned Parenthood v. Casey, which 19 years later upheld Roe and ruled that the government can’t impose an "undue burden" on women seeking the procedure.

"The principles derived from these cases establish a broad right to freedom to make personal choices — central to personal dignity and autonomy — about one’s own medical decisions," the plaintiffs’ lawyers wrote — even as they cited fetal stem cells as a reason for refusing the vaccine.

The current wave of litigation also features lawsuits arguing for exemptions based on religious grounds. And, the professors said, these suits could have a better chance of succeeding than they once would have. The current high court, which now leans conservative, is more receptive than in prior years to religious claims generally.

"This is a Supreme Court that has shown itself to be sympathetic to certain religious claims that would likely not have survived 10 years ago," Goodwin said.

The court’s current composition shows how much difference even a single vote can make.

Earlier in the pandemic, the court had left in place pandemic restrictions on religious gatherings, deferring to government experts. But within weeks of Amy Coney Barrett, a Trump appointee, replacing Ruth Bader Ginsburg, a Clinton appointee, a 5-to-4 court loosened limits imposed by then-Gov. Andrew M. Cuomo over how many people gather for religious worship.

Although courts presiding over the Long Island cases have so far refused to stop the state’s vaccine mandates, a federal judge in upstate Utica ruled Sept. 14 that a religious exemption must be carved out statewide to the vaccine mandate, at least temporarily, while he decides how to proceed in a suit similar to the one by the Syosset nurses. His order is in effect until at least Oct. 12.

On Wednesday, the state filed opposition papers arguing that neither the First Amendment nor the 14th Amendment requires a religious exemption to the vaccine mandate.

"For over a century, courts have upheld similar mandatory vaccination laws under the Free Exercise Clause and Equal Protection Clause," according to the filing, which cites the Jacobson case.

In 1905, when Henning Jacobson lost at the Supreme Court, he faced the choice he had been trying to avoid since 1902, when the Cambridge board of health chairman knocked on the family home: Get the vaccine or pay a $5 fine.

He paid the fine.

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