0:00

This week on the New

0:02

Yorker Radio Hour, the new movie Oppenheimer.

0:04

We'll talk with biographer Kai Bird. That's

0:07

the New Yorker Radio Hour, wherever you get your

0:09

podcasts.

0:18

Listener supported WNYC

0:21

studios.

0:30

The New Yorker Radio Hour. Hi,

0:36

Julia. My name is Yasha. I'm from Amsterdam

0:38

in the Netherlands. I wondered

0:40

if the Supreme Court has ever ruled on the balance

0:43

between personal liberty on the one

0:45

hand and public health on the other.

0:48

Can the government limit the freedom

0:50

of individuals in order to protect

0:53

the health of everybody else?

0:56

I'm Julia Longoria. This

0:58

is More Perfect. It

1:01

feels

1:01

like every day I get a reminder of how much

1:04

the COVID pandemic has completely changed

1:06

our world. About

1:09

seven million people have died of COVID. Vaccination

1:13

is now a topic on the campaign trail.

1:17

So I've been thinking a lot about this question a

1:19

listener posed to us about

1:22

the balance between our individual freedoms and our

1:25

health. And it's a

1:27

difficult question and one that really

1:29

interests me personally because I strongly believe

1:32

in both. I believe

1:34

in personal freedom, liberty and the right

1:36

to make your own choices in life. That's

1:39

like a core value to me. But

1:41

so is health and safety of everybody around me.

1:45

I would really

1:47

like to know whether

1:48

the Supreme Court has ever ruled on the

1:50

balance between these two rights and if so, how? And

2:00

where? In

2:04

the last few years, the Supreme Court

2:06

has had to balance these two interests, most

2:09

often ruling against public health.

2:12

They've rejected vaccine and mask mandates

2:14

and social distancing requirements. But

2:17

that hasn't always been the case. We

2:20

looked further back in history, to

2:22

one of the first times the Court ever weighed

2:25

these two interests, in a case

2:27

that became a basis for our country's

2:29

public health system.

2:31

This week, the story of that case.

2:36

Hello, this is Robin. Hi,

2:39

is this the Swedish Lutheran

2:42

Church in Cambridge? We

2:46

haven't been that in a very long time, but yes.

2:49

This is, I'm the pastor of Faith

2:51

Lutheran Church. How can

2:53

I help you? Oh, okay, thank you.

2:57

I'm working on a story about Pastor

3:00

Henning Jacobson. Yep, I'm sure

3:02

this is about vaccination. Yes,

3:05

but... Producer Gabrielle Burbé cold

3:08

called a church in Cambridge, Massachusetts.

3:11

This was actually a couple of years ago, when

3:13

Gabrielle and I were working on another WNYC

3:15

studio show, called The Experiment,

3:18

a co-production with The Atlantic magazine.

3:22

Gabrielle was searching for the very

3:24

first vaccine case to come before

3:26

the Supreme Court. It all began

3:29

in this church over 100 years ago.

3:32

Thank you for talking to

3:34

me, this is like such a random call. No,

3:36

no, no, I love this kind of stuff. Where

3:38

the current pastor picked up the phone.

3:41

Are you in the church now? No, yeah, this

3:43

is our organist practicing, I just put on my mask.

3:45

It's a very talented organist. Here,

3:48

listen. Oh,

3:53

I can hear that, yeah. The

4:01

original pastor of this church was

4:03

a guy named Henning Jacobson, who

4:06

took a personal and very public

4:08

stand over vaccination in 1902. What

4:12

are you seeing right now?

4:13

I see two

4:16

portraits of Henning Jacobson leaning against

4:17

the wall. He

4:20

looks like a wild

4:22

hair and a wild beard kind of. I

4:25

think he was kind of like a fire and brimstone

4:27

sort of preacher. He's

4:30

dignified, I would say. Dignified.

4:34

Sort of asking, what

4:36

are you going to do with me? And I'm like,

4:38

I don't know, Henning.

4:41

I don't know, man. I

4:46

mean, it's almost a little bit unfortunate that like the

4:48

thing that you Google his name the first time it pops up

4:50

is Henning Jacobson versus

4:52

the state of Massachusetts. Which

4:55

is like,

4:56

you know, in

4:59

some sense I suppose he was the first anti-vaxxer.

5:04

Oyez, oyez. This

5:11

week on More Perfect, the story

5:13

of a man who took a stand or

5:16

something he believed in and asked

5:18

the Supreme Court to step into an

5:20

argument our country is still

5:23

having over where the line

5:25

is between our rights over our bodies

5:28

and our duty

5:28

to others.

5:57

More Perfect listeners. We

6:00

want to answer your questions about

6:02

the Supreme Court. How do other

6:04

countries' Supreme Courts work? What's

6:06

been nagging you? Who is this Supreme

6:09

Court marshal? What makes no sense?

6:11

How come Supreme Court justices

6:13

are never ending until they die? We

6:16

might just find an answer for you. Thank you

6:18

for taking my question. Record your question

6:20

at moreperfectpodcast.org.

6:27

This is More Perfect. I'm Julia Longoria.

6:29

We're back with a story

6:31

we reported back in 2021. We

6:34

revisit a Supreme Court case from over

6:36

a century ago, brought by a man

6:39

some might call the original

6:41

anti-vaxxer. I once got a call

6:43

from Swedish Public Radio. Did

6:45

you know they were such a thing? I didn't. Being

6:48

the current pastor of a church founded by

6:50

an anti-vaxxer is a bit

6:52

of an odd thing for Pastor Luthjohan. Am

6:55

I saying that right, by the way? Luthjohan? Yeah.

6:58

Cool. In history, people

7:01

call the church

7:01

with certain expectations.

7:04

I think they called me thinking that ours was

7:06

like an anti-vaccine church or

7:08

something like that. And I'm

7:10

like, sorry, man, I have to disappoint you.

7:13

We had a flu shot at the soup

7:15

kitchen at our church just the other day.

7:17

The story of the Henning Jacobson's case

7:20

has this weird quality

7:22

about it, where people keep reaching

7:25

back to try and find

7:28

some kind of meaning from the life

7:30

of this one anti-vaxx pastor.

7:35

So if we were going to do the movie in

7:38

your head of how Henning's life went,

7:40

how does it start?

7:43

Let's see. With the little

7:45

knowledge I have, I have to figure out a movie.

7:49

The movie would have to start in Sweden. The

7:52

movie would start in Henning's boyhood,

7:56

in

7:56

19th century rural Sweden, in

7:58

a town called Ylvisstad. which is

8:00

a remote community settled near a big blue

8:02

lake surrounded by rolling planes.

8:05

If you wanted to focus the movie on what

8:08

he is most famous or infamous for, which is

8:11

the Supreme Court case, then a

8:13

Hollywood movie would probably start with him sweating

8:16

and in pain, having his first

8:18

bad experience of the vaccine.

8:21

Henning first got vaccinated in

8:23

Sweden when he was six years old. And

8:25

then he carries that memory into his later

8:28

life. And then I imagine

8:30

him coming to this country wide-eyed, 13 years

8:32

old, and

8:36

sort of being struck by the diversity

8:40

of America.

8:43

Then he ends up going to college and seminary.

8:47

All I know about him is from the

8:49

few records we have here at church, it's

8:52

really not much to go on. You

8:54

know, you should really talk to a historian.

8:59

Can you introduce yourself? Sure.

9:02

I'm Michael Wilrich. I'm chair

9:04

of the history department at Brandeis University,

9:07

and I'm the author of Pox,

9:09

An American History.

9:11

Professor Wilrich has his own version

9:14

of the Henning-Jacobson biopic. I

9:16

would open with him going down

9:18

to the docks in Boston. A

9:21

grown Henning-Jacobson would take

9:23

frequent trips from his home in Cambridge

9:26

down to the city of Boston.

9:27

Waiting as immigrant ships

9:30

came into the harbor, meeting

9:32

the Swedish immigrants who came off

9:34

those ships and finding jobs

9:36

and housing for them, and basically

9:39

being a kind of working-class minister. He

9:41

just worked on building this community

9:44

of people from scratch, gathering

9:47

people together.

9:48

Pastor Lüchihan calls him a sort of

9:50

community organizer. He founded

9:52

a church, an immigrant church

9:55

here, among people who

9:57

were, for the most part, poor laborers,

9:59

to this country, not with a lot

10:02

of money, seeking economic opportunity.

10:05

In 1901, there's a

10:07

smallpox outbreak in the

10:10

Northeast of this country.

10:13

Smallpox was one of the most deadly

10:16

diseases the world had ever seen at that point. It

10:19

would result in fevers and oozing

10:22

sores that would sometimes cover people's

10:24

entire face and body.

10:28

It was the same disease that European

10:30

settlers brought to North America in the 17th

10:32

century when it killed

10:34

Native American populations and

10:35

many, many people. 200 years

10:38

later, there were still outbreaks

10:41

in major U.S. cities. And

10:43

in 1901, Cambridge was in the middle

10:45

of one of those outbreaks. It was

10:47

part of this wave of epidemics across

10:50

the nation.

10:51

So the city of Cambridge decided

10:54

to make vaccination mandatory.

10:56

They're very diligent about it. They go door to door. And

10:59

I guess Jacobson was sufficiently prominent

11:02

because of his role as a minister in the community

11:04

that the chairman of the local

11:06

board of health came to his door

11:10

and knocked on his door and

11:12

offered, slash asked, slash

11:15

demanded that he be vaccinated

11:18

and Jacobson refused. He

11:20

refuses

11:23

because he believed that it was his

11:25

right to

11:27

refuse vaccination. He's

11:29

like, nobody can tell me what to put in my

11:31

body.

11:34

Part of the reason for that was that he had had some

11:37

adverse side effects taking vaccines

11:40

previously. And I think his son did as

11:42

well. And so I imagine

11:44

he was probably scared by that experience

11:46

and he didn't want to live through it again.

11:49

Was there good reason for people to be

11:52

scared or skeptical of vaccines? There

11:55

was pretty good reason. Public

11:57

health departments would send out teams

11:59

of vaccines. vaccinators, very

12:01

often in the middle of the night, into

12:04

tenement districts, usually

12:07

inhabited by immigrant working class

12:09

people. They go door to

12:11

door on these sort of vaccine raids.

12:16

And they inspect the arms of

12:18

everyone who lived in these homes to

12:20

see that they had been recently vaccinated,

12:22

that they had a kind of vaccine scar on

12:25

their upper arms.

12:27

In his own community of Cambridge, people

12:29

are jumping out of windows and running the other

12:32

way or getting doctors to

12:34

sign phony vaccination certificates.

12:37

I found one episode in the historical

12:40

record from Kentucky where

12:42

the vaccinators went into an African

12:45

American neighborhood of

12:47

this community and ordered

12:50

everybody to get vaccinated. And

12:52

those who refused were handcuffed

12:55

and vaccinated at gunpoint. Wow.

12:57

There

13:00

was outright violence used to

13:03

compel people to be vaccinated, and

13:05

Jacobson certainly would have been aware of that.

13:10

I mean, call me an anti-vaxxer, but that sounds

13:13

really extreme. It's

13:15

the very extreme edge of this. Though

13:20

most Americans did accept vaccines at the

13:22

time, this kind of forcible

13:24

vaccination was part of the reason

13:26

there was a healthy transatlantic

13:29

anti-vaccination movement already

13:31

in motion. Every local community

13:34

of any significant size might

13:36

have an anti-vaccination league

13:39

or society. Typically, they'd

13:41

form during an epidemic or during

13:43

some period when compulsion was on

13:45

the rise. They'd meet in

13:48

small meeting places. They would publish

13:51

leaflets that they'd circulate

13:53

on the city streets.

13:54

Jacobson attended at least one

13:57

anti-vaxx meeting, but

13:59

he wasn't officially part of the movement.

14:02

All he did was for himself refuse

14:05

to get vaccinated. This sort of set

14:08

this chain of events in motion

14:10

in which he ended up being brought before a local

14:13

criminal court and the charge

14:15

was the crime of refusing vaccination.

14:18

And eventually a team of lawyers took

14:20

on Jacobson's case and fought it

14:22

in court. The question of the case

14:25

was whether Jacobson could be fined five

14:27

dollars for refusing to

14:29

be vaccinated. To help us understand

14:32

Jacobson the case, we called

14:34

law professor Wendy Parmett. One

14:36

of my strange pandemic

14:40

outings over the summer was

14:42

in search of the graveyard

14:45

of one of Jacobson's

14:48

lawyers. She lives in Boston

14:50

where she's the director of Northeastern's Center for

14:52

Health Policy

14:53

and Law. I think I found what is his tombstone

14:56

only a few miles away from

14:58

my house. Really? And I went, wow!

15:01

I didn't want to be alone. Nobody else knows what the

15:03

hell I'm doing. But

15:06

it was something to do on a pandemic Saturday,

15:08

right? She is completely obsessed

15:11

with this case, like dedicated much

15:13

of her career to understanding it. Jacobson,

15:16

to me, is this incredibly

15:19

rich case. It

15:21

is so Delphic.

15:24

Delphic,

15:27

like as in like a Greek oracle? Yeah,

15:30

in the sense that different

15:34

people read it differently because

15:36

you can see in it what you want to

15:38

see in it. And I think as

15:41

with many texts, we

15:43

bring our own worldviews

15:46

into what we see in Jacobson.

15:51

You can see this in the arguments that Jacobson's

15:54

lawyers made. They were all over the

15:56

map, laying out almost like a

15:58

menu of

15:59

options. for why someone might

16:01

object to a vaccine. They sort of threw

16:03

the whole constitutional kitchen

16:05

sink at this case. They

16:07

argued that vaccination was dangerous,

16:10

that compulsion was unnecessary,

16:12

that this was a violation of every

16:15

individual's right to make

16:17

choices about their own bodies.

16:20

Religious ideas also made their way

16:22

into some of their arguments. There's a lot

16:25

of religious terminology

16:27

in the briefs. I don't

16:29

have the exact quote up. My computer

16:32

went to bed. Can I give you one

16:34

second to wake up my computer? Yeah, of course.

16:38

And I will find it.

16:41

Okay, so this is from

16:43

the brief before the Massachusetts

16:46

Supreme Judicial Court filed

16:49

on behalf of Jacobson, asked,

16:52

quote, can the free citizen

16:54

of Massachusetts, who is

16:56

not yet a pagan nor

16:58

an idolter, be compelled

17:01

to undergo this rise and to

17:04

participate in this new, no

17:06

revived form of worship of

17:09

the sacred cow?

17:12

As in vaccines are a worship of the

17:14

sacred cow? Well, there was

17:17

this view. The word vaccine

17:19

itself is from the Latin for cow. The

17:22

word vaccine comes from baca

17:24

or cow.

17:26

Cows were a key part of the first

17:28

vaccines ever made for smallpox.

17:31

A country doctor might keep a cow on

17:33

hand for the purpose of producing vaccine.

17:36

Scientists found that people who were exposed

17:38

to cowpox from cows had

17:41

immunity to smallpox. Smallpox

17:44

vaccine as material was live

17:46

viruses taken from oozing

17:49

sores on the bellies of calves.

17:51

Vaccines and their precursors

17:54

injected the material from boils.

17:57

The pus.

18:01

And put it under the

18:03

skin of somebody who had not had small

18:05

pucks. I'm probably telling

18:08

you more than you want to know. That

18:09

just opened up a new room

18:12

in my brain. I had no idea that it...

18:16

And you can find similar

18:18

language in contemporary

18:20

anti-vaccinationist websites.

18:23

It's pagan. You're putting something

18:25

of the cow in you. You're worshipping

18:27

the cow in the revering of vaccination.

18:31

Wow.

18:32

This fear

18:34

and anger towards vaccination

18:37

goes way back. This

18:40

sense that it is somehow unnatural

18:43

and ungodly

18:44

goes way back. These

18:47

are the arguments that Jacobson's lawyers made

18:50

to a judge. But the court

18:52

rejected those arguments. Jacobson

18:55

lost his case at the local level, and

18:57

then his lawyers appealed to the Supreme

19:00

Court. Jacobson is the first

19:02

case where the Supreme Court took

19:05

a claim of sovereignty over one's

19:07

body in terms of medical

19:10

treatment seriously.

19:13

This was one of the first times the

19:15

court was presented with this big question.

19:19

Where do our rights over our bodies end?

19:23

And our duty to the common good begin?

19:27

For Jacobson, the question was, could

19:30

he be fined for choosing

19:32

his rights over his own body over his duty

19:35

to the people of Massachusetts?

19:36

The court held that he

19:39

could be. The Supreme Court said,

19:41

yes, Jacobson, you have to pay the fine.

19:44

The court's decision was really

19:46

pretty interesting. And Michael

19:49

Wilrich again.

19:59

case was a legitimate exercise

20:02

of the police power of the state.

20:05

Smallpox was extremely dangerous, and

20:07

he insisted that by the same logic

20:10

that a government can raise

20:12

an army

20:13

to prevent a

20:15

military invasion and can compel

20:18

individual citizens to take

20:21

up arms and risk being shot down in the

20:23

defense of their country, by

20:26

that same sort of rationale,

20:28

the government can fight off a

20:31

deadly disease and demand

20:33

individuals to be vaccinated, even if

20:36

it violated their sense

20:38

of personal liberty or conscience or whatever.

20:41

When there is a virus or some

20:44

other disease coming in, personal

20:46

liberty has to take a backseat to public safety.

20:49

Pastor Robin Lucha-Hunigan. And you

20:51

know, this is a sticky and tricky

20:53

thing to argue and to try to get right. And

20:56

it turns out that he was on the losing side of history

20:58

there.

21:06

Since 1900, an estimated 300

21:09

million people in the world have

21:12

died from smallpox.

21:14

It was because of these mass vaccination campaigns

21:17

that the very last known natural

21:19

case of smallpox was recorded

21:21

in 1977. It's

21:24

the first human disease to have

21:26

been completely eradicated

21:29

from the planet because of vaccines.

21:32

There was this very short

21:34

period, this wisp

21:37

of history, where

21:39

humanity thought we had conquered infection.

21:42

After the

21:44

smallpox outbreak that Jacobson lived through

21:47

and the influenza pandemic of 1918, there

21:51

weren't very many large epidemics in

21:53

the U.S. until 60 years

21:55

later, when we started to battle AIDS.

21:58

We just sort of...

21:59

assumed that contagion was

22:03

only the stuff of horror films and

22:05

movies. It was behind

22:07

us.

22:09

Once you recognize contagion's

22:11

ubiquity, you realize that

22:13

so much of human history has been forged

22:16

by battles

22:18

over contagion.

22:21

Contagion and epidemics

22:24

have brought out

22:26

the best in humanity and the worst in humanity.

22:30

Contagions have been the excuse

22:33

for so many atrocities

22:36

in the world and so

22:38

much discrimination. Witches

22:41

were, you know, plague came and Jews were

22:43

killed and witches were burned and

22:46

we see this throughout history

22:49

and so it's a very delicate balance.

22:55

Contagion brings out

22:57

fear in all of us. It's

23:00

not hard to get inside of Henning Jacobson's

23:03

head when he refused the vaccine.

23:06

He did it because he was scared. I

23:09

think I mentioned Henning Jacobson

23:11

and his legacy in

23:14

my sermon. Pastor Luchahan

23:16

has thought a lot about Jacobson's fear.

23:19

At the very beginning of coronavirus, when

23:22

everything was just starting to shut down,

23:25

he thought about what to say to his congregation.

23:28

He didn't want them to be afraid and

23:30

so he preached about a story in the Bible

23:32

that he thought could help. It was about how like

23:34

there are these poisonous snakes. In the book

23:36

of Numbers, God sent down

23:39

a plague of poisonous snakes on

23:41

the people of Israel. The disobedient

23:43

people of God wandering through the desert

23:45

are punished by God. And

23:47

Moses, who was chosen by God

23:49

to lead these people through the desert, watched

23:53

as deadly snakes killed them one

23:56

by one. They were dying

23:58

in droves and people were

24:00

terrified. And then Moses does this

24:02

strange thing where he has

24:04

a bronze snake made and he

24:06

puts it up on a pillar

24:09

and he displays it in front of everyone

24:11

and everybody who looks at the bronze

24:14

snake on the pillar

24:16

gets healed.

24:17

So that's the story. Okay. And

24:19

there's a number of different ways to interpret

24:21

that. Yeah, and like what's the message of that?

24:24

What's the message? Right.

24:29

The healing is going to come from the poison itself.

24:32

How do the people bitten by the snake get healed?

24:35

By looking at an image of the very

24:38

snake. I

24:41

also mentioned to the congregation, you know, it's also

24:43

reminiscent of a very famous

24:46

image that we see so often in

24:48

medical sciences, which is also

24:50

a serpent around a staff. Right.

24:53

This idea that somehow the deadly poison

24:55

of the snake is also a way to unlock

24:58

the possibility of healing and

25:01

have come true in modern vaccinations.

25:06

Most of the way we get vaccinations is by

25:08

somehow altering the disease itself and

25:11

ironically injecting

25:13

the disease into a human being.

25:18

I mentioned Henning and I said, look,

25:20

this is not just true about medicine. This is true about

25:22

a lot of our lives. You know, do you want

25:24

to overcome your deepest fears and

25:27

your most profound hang-ups?

25:29

Well, often it is by actually

25:32

going to the root of where they come from and facing

25:34

up to them rather than running away from them.

25:37

You know, you can't keep running away. You got to go back to

25:39

where the disease started and

25:41

that's where the key is.

25:49

The Jacobson case paved the

25:51

way for governments to be able to require

25:53

vaccination for kids in schools.

25:56

It was cited in New York and California

25:58

to reject people's

28:01

From WNYC Studios, this is

28:03

More Perfect, I'm Julia Lincoria.

28:07

Over the years, people keep reaching

28:10

back into Henning Jacobson's case,

28:13

looking for answers not just to

28:15

vaccination questions,

28:17

but to bigger questions about

28:19

how much power the government should have over

28:22

our bodies and the line between

28:25

our liberty and our duty to others.

28:27

It's just an incredibly complicated

28:30

legacy because you, on the

28:33

one hand, you want

28:35

governments to be able to

28:37

respond quickly

28:39

and effectively in the public interest during

28:42

a deadly epidemic.

28:46

On the other hand, you want that to be

28:48

carefully measured. Historian

28:50

Michael Wilrich again. The first

28:53

time he read about the Jacobson case was

28:55

actually as a footnote in a very

28:57

different case. I knew about

29:00

this case because I had

29:02

written an earlier book that

29:04

dealt a lot with eugenics. And

29:08

Jacobson, the case, was

29:10

the only precedent cited

29:13

by the U.S. Supreme Court in 1927 in the

29:16

case of Buck versus Bell. Buck

29:18

versus Bell is one

29:21

of the

29:22

scariest U.S.

29:25

Supreme Court decisions of all

29:27

time.

29:32

At the center of Buck versus Bell

29:35

is a woman named Carrie Buck. She

29:38

was born in 1906, one

29:41

year after the Supreme Court handed down Jacobson's

29:44

case. Carrie

29:46

was just three years old when her mom,

29:48

Emma Buck, was institutionalized

29:50

for being quote, feeble-minded

29:53

and sexually promiscuous. Her

29:56

dad wasn't in the picture, so

29:58

officials put Carrie in for the first time.

29:59

foster care with a family called Dobbs.

30:04

She stayed with that family for 14

30:06

years until one day she

30:09

learned that she was pregnant. She

30:11

said that Dobbs' nephew had

30:13

raped her, but the family

30:16

put her in an institution, the

30:18

same one where her mom was. The

30:21

baby, Vivian, was born

30:23

in 1924.

30:27

And that same year, Virginia passed

30:29

a law that allowed the forced sterilization

30:33

of people who were unfit or,

30:35

quote, afflicted with hereditary

30:37

forms of insanity that are recurrent.

30:41

The institution where Carrie and Emma were

30:44

living chose Carrie

30:47

as the first one to be sterilized.

30:52

Carrie got a lawyer and

30:54

took her case to the Supreme Court. The

30:57

opinion was written by Justice Oliver

30:59

Wendell Holmes Jr. Oliver

31:03

Wendell Holmes writes

31:07

an opinion that's just very painful to

31:10

read today. It's a short,

31:13

pithy, appalling

31:16

opinion. He said that in

31:18

the most famous line in that case, three generations

31:20

of imbeciles are enough. The

31:24

court ruled that the state did

31:26

have the power to sterilize Carrie

31:28

Buck against her will. It's

31:31

just a horrific opinion. And

31:34

his only citation in

31:36

that case is Jacobson versus Massachusetts.

31:41

Can you walk me through the logic there? How do you

31:43

get from, yes, the

31:45

state can vaccinate? You in a smallpox

31:48

epidemic?

31:51

You can sterilize a woman

31:54

against her will? Well,

31:57

it's the dangers. far

32:01

end of the idea

32:03

that we need to sacrifice ourselves for the

32:05

common good. This

32:08

is the eugenicist opinion, and

32:12

it assumes that her children would

32:14

be equally degenerate,

32:17

equally impaired mentally.

32:21

To be clear, none of this was true. None of

32:23

this was true about her. Through

32:25

Justice Oliver Wendell Holmes' point

32:28

of view, Jacobson stands

32:30

for the proposition that people need

32:32

to sacrifice their individual. We

32:35

all need to give up something for the common good.

32:38

He talks about how

32:40

the best people are conscripted

32:42

into the army to fight for the nation,

32:44

and giving up your fallopian

32:47

tubes is no big deal.

32:50

It's the dangerous perversion of Jacobson

32:53

and Jacobson's calling

32:57

to the common good and Jacobson's

32:59

invocation of the social contract.

33:13

As the pandemic progressed over the years,

33:16

the Supreme Court has heard several cases

33:18

about vaccines. In one

33:20

case, they went in the opposite direction

33:23

they did in Jacobson and struck

33:25

down a government mask and vaccine

33:28

mandate. But

33:30

that same year, they also approved

33:33

a vaccine mandate for healthcare workers,

33:35

which the Biden administration

33:36

has since withdrawn. And

33:40

a few justices called out Jacobson

33:43

only to argue that this

33:45

100-year-old case is no longer

33:47

relevant.

33:49

There are certainly reasons to question

33:52

the legacy of the Jacobson opinion and

33:55

how much it should apply to our lives today.

33:58

But Wendy worries if you...

33:59

to draw out the opinion altogether, that

34:02

could be dangerous too. It

34:04

could roll back things like school vaccine

34:07

mandates that the opinion made possible.

34:10

It all remains a delicate balance.

34:15

Pastor Luchahan had always seen this case

34:18

as straightforward. Jacobson

34:21

was wrong. Supreme Court was right.

34:24

But he didn't know about the more complicated

34:26

legacy of the decision. Tell

34:29

me about it. So Jacobson's

34:32

case was cited in this ruling. Basically

34:35

it said that there was a state interest

34:37

in cutting fallopian

34:40

tubes of someone. Oh yeah, I can

34:42

hear about this. Yeah, forced sterilization

34:45

of people who had

34:47

mental illnesses or-

34:49

Can I read you a Supreme Court rule,

34:51

a little excerpt from the Supreme Court ruling? It says, the

34:54

principle that sustains compulsory

34:56

vaccination is broad

34:58

enough to cover cutting the fallopian tubes.

35:01

And then it references Jacobson v. Massachusetts.

35:05

And then the opinion goes on to say,

35:07

three generations of imbeciles are enough. Oh

35:11

my goodness. That's

35:14

heartbreaking. That

35:17

makes me see his

35:20

case in a different light, honestly. How

35:24

so? Because

35:26

I think movements

35:29

like eugenics that

35:31

sort of deny the full dignity and

35:33

personhood of people who

35:36

are different

35:39

in any way, it's just

35:42

so obviously for me against

35:47

what society should stand for. You

35:50

know,

35:50

I'm from Germany.

35:52

And so

35:55

my grandfather's generation was

35:57

part of the movement that-

36:00

that did just that to all

36:02

kinds of people. Dissidents, people

36:05

who had cognitive disabilities, Jews.

36:10

We see in many forms of dictatorship

36:14

that this pattern keeps coming

36:16

back. Like you want to create this ideal

36:18

world that doesn't have the undesirable in

36:20

it. A

36:23

part of me, I mean, I'm speaking completely

36:25

personal. I'm not speaking for anybody here, but like, pardon

36:28

me, my basic attitude would

36:30

be like, I can see how

36:33

in a pandemic, as

36:35

scary as smallpox, or

36:37

epidemic as the case may be, that

36:39

a government would decide, okay, we gotta vaccinate

36:42

everybody. I can see that. I can

36:44

see that case for public health being made.

36:47

I of course absolutely cannot see a

36:51

public health argument for forced

36:53

sterilization of

36:55

any group of people. And

36:59

I'm appalled that one could go from one to the other, but

37:01

I suppose I can see. I

37:04

suppose in a sense, it's the same question of

37:07

personal liberty versus public safety, but

37:09

then the question is like, who gets to say what public

37:11

safety is?

37:13

That's messy. That's

37:15

real messy. I just

37:17

wonder, like, thinking about him

37:20

as somebody

37:21

who

37:26

had these convictions, who was stubborn about

37:29

them, who fought

37:32

all the way to the Supreme Court, right? That takes

37:34

a lot of energy. That quality

37:36

is not necessarily

37:38

a bad thing, right? That's something that

37:41

we value today. I mean, looking

37:43

back on that

37:44

part of his life, what do you think his life can teach

37:46

us about the sort of legal

37:49

battles, any battles we're fighting today?

37:53

I don't know, because right now

37:56

we're in a historical and cultural

37:58

moment.

37:59

especially in this country

38:01

where a lot of people are

38:04

taking stances and being quite

38:06

intransigent about their stances.

38:09

It's very popular right now

38:12

to die on a hill, as they say, and

38:15

to be gung-ho about

38:17

it, and then have all these people

38:20

online cheering you on as you do. My

38:22

goodness, if Henning was

38:24

doing what he did today,

38:27

how many people would

38:30

stand him online, right? Like

38:32

how many people would it be out there just like

38:34

doing Kickstarter fundraisers for him

38:36

and all kinds of stuff? I'm almost kind

38:38

of grateful that that was impossible back then,

38:41

because who knows? That kind of stuff can go to your

38:43

head. That kind of stuff can just

38:45

totally change the direction of what you originally

38:48

intended to do. I wanna

38:50

make a case for actually less

38:53

gung-ho intransigents, less

38:56

dying on a hill,

38:57

less stubbornness in defending

39:00

causes, and more

39:03

listening, assuming the best

39:05

about the other person's intention. Try

39:08

to understand what they're doing, why

39:10

they're doing it, what they're going through, and

39:13

then try to make some

39:15

sort of judgment.

39:18

And there's plenty little about

39:20

that happening right now, unfortunately.

39:24

And

39:24

maybe that wasn't Henning's strongest

39:26

quality, but he

39:29

subscribed to the same confessions and

39:31

beliefs that I do.

39:34

And

39:34

I think that's our task right now,

39:36

too. More

39:54

Perfect is

39:56

a production of WNYC. NYC

40:00

studios. This episode

40:02

first aired on The Experiment, which is

40:04

a co-production with The Atlantic magazine. And

40:07

since this episode aired, we heard the news

40:10

that there is a fire at Pastor Lou Johan's

40:12

church, Faith Lutheran,

40:13

in Cambridge. He still leads

40:16

the congregation out of another church building

40:18

in Cambridge, until Faith Lutheran gets

40:20

rebuilt.

40:22

This episode was produced by Julia Longoria

40:25

and me, Gabrielle Burbé, with editing

40:27

by Katherine Wells, Fact Check

40:30

by Will Gordon, Sound Design by

40:32

David Herman, and Music by Tasty

40:34

Morsels. It was updated by

40:36

Emily Seiner, Jenny Lawton, Emily

40:39

Madre, and Sophie Hurwitz. Special

40:42

thanks to Sam Moyn. The

40:44

more perfect team also includes Emily Botin,

40:46

Whitney Jones, Alyssa Eads, Saman

40:49

Ahad Khan, and Joe Plourde. Our

40:51

theme is by Alex

40:52

Overington, and the episode art is by Candice

40:54

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