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RUND ABDELFATAH, HOST:

Hey everyone. It's Rund and Ramtin here. And before we jump into the show, we want to address something a lot of you have been tweeting at us about.

RAMTIN ARABLOUEI, HOST:

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LESTER HOLT: Tonight, America on track for its worst measles outbreak in 25 years.

ANNE-MARIE GREEN: The CDC says the number of measles cases being reported is close to the danger zone.

TONY DOKOUPIL: This Orthodox Jewish section of Williamsburg, Brooklyn, is ground zero, where some 250 measles cases have been confirmed.

HOLT: Ninety more cases in just one week.

NORAH O'DONNELL: Seventy-one students, 127 staff.

KRISTEN DAHLGREN: The latest outbreaks are highlighting pockets of unvaccinated people. And health officials are scrambling to stop the nationwide spread.

HERMINIA PALACIO: This anti-vaxx movement has proven to be very dangerous.

HOLT: Public health officials doing all they can to urge Americans to vaccinate their children.

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ABDELFATAH: You're listening to THROUGHLINE from NPR.

ARABLOUEI: Where we go back in time...

ABDELFATAH: To understand the present.

ARABLOUEI: Hey, I'm Ramtin Arablouei.

ABDELFATAH: I'm Rund Abdelfatah.

ARABLOUEI: And on this episode, the question of vaccinations.

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ABDELFATAH: Back in 2000, the Centers for Disease Control and Prevention, or CDC, officially declared that measles had been eliminated. But now, according to the CDC, we're in the midst of the biggest outbreak of measles since that declaration. So what's going on?

ARABLOUEI: Well, public health officials have linked many of the recent outbreaks to people who have become infected while traveling abroad. But the question is - why has the infection been able to spread so widely, especially among American children?

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NANCY MESSONNIER: I do believe that parents' concerns about vaccine leads to under-vaccination. And most of the cases that we're seeing are in unvaccinated communities. However...

ABDELFATAH: That's a CDC official testifying before Congress in February. And basically, what she's saying is that people weren't getting their kids vaccinated because they were scared of vaccines. And in response to one outbreak in Brooklyn...

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BILL DE BLASIO: We have a situation now where children are in danger. We have to take this seriously.

ABDELFATAH: ...The city of New York recently declared a public health emergency...

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ELAINE QUIJANO: The city is mandating vaccinations for adults and children exposed to the virus.

ABDELFATAH: ...Requiring unvaccinated people to get vaccinated or face a fine.

ARABLOUEI: For more than a century, authorities have been trying to use vaccinations as a way of protecting public health. And for just as long, some people have resisted. So we wanted to know, when in American history have these two sides collided? And we found a Supreme Court case from 1905 that dealt with this tension and that New York officials are drawing on today.

ABDELFATAH: The case highlights just how similar things were back in the early 20th century. To find out more about that case...

MICHAEL WILLRICH: I'm here, yep.

ABDELFATAH: We called up this guy...

WILLRICH: So it's Ramtin and Rund?

ABDELFATAH: Yes.

ARABLOUEI: Correct. Perfect.

WILLRICH: OK. Want to make sure I pronounce it correctly.

ABDELFATAH: ...Michael Willrich.

WILLRICH: My name's Michael Willrich. I teach history at Brandeis University. And I'm the author of a book called "Pox: An American History."

ARABLOUEI: Willrich says that when New York set penalties to enforce vaccinations in Brooklyn, they were relying on a 1905 case of a Swedish Lutheran minister in Cambridge, Mass. Here's the context. A few years earlier, there was an outbreak of smallpox in a bunch of U.S. cities, including Cambridge, so public health officials ordered all residents to be vaccinated. This Swedish minister, Henning Jacobson...

WILLRICH: He refused. He had been vaccinated as a child back in his home country of Sweden and had been made very sick by the vaccine. And then after he had arrived in the U.S. and had a family, one of his sons had also been sick following vaccination. And he thought that vaccination was a threat to him.

And so he declined to be vaccinated. He was brought before a local criminal court and found guilty, was fined a pretty nominal amount. I believe it was $5. But then he, with the support of the local anti-vaccination movement, brought his appeal to the state Supreme Court and then all the way up to the U.S. Supreme Court.

ABDELFATAH: All right. So this whole epidemic must have been pretty bad that health officials, you know, decided to make these vaccinations mandatory and enforce them.

WILLRICH: Yeah. Yeah. So the larger context for this was a period in which smallpox was very much present in the United States. Smallpox is an extremely deadly disease. Historically, it killed about a quarter to a third of the people who became infected with it.

ABDELFATAH: Wow.

WILLRICH: Three hundred million people worldwide died from smallpox in the 20th century alone. And there had been an effective vaccine against smallpox since the late 18th century, the original vaccine. So you have a situation with significant danger to society and a solution. And what does the government do while it tries to stamp out the epidemic by compelling everybody to be vaccinated? But these circumstances were extremely contentious.

ARABLOUEI: What do you mean by contentious?

WILLRICH: People had serious doubts that vaccines worked. Some people thought that compulsory vaccination was a violation of fundamental American liberties grounded in the common law and the Constitution and just natural rights. Other people felt that compulsory vaccination was a hoax being perpetrated by vaccine manufacturers themselves and compliant state legislatures and public health officials inflicted on society for commercial gain.

Other folks had really basic resistance to it because even an effective smallpox vaccination could make you feel sick or have your arms swell up for a few days. People lost days at work at a time when there was no workers' compensation laws. So there was really significant resistance at the time, not just from parents, as you have today, but also working-class people. And compulsory vaccination was carried out with great force in immigrant working-class communities and in particularly in African American communities. I found some cases in the South where African Americans were vaccinated at gunpoint.

ARABLOUEI: Wow.

WILLRICH: So...

ABDELFATAH: What?

ARABLOUEI: ...It's a really dramatic set of conflicts in which Jacobson's case arose.

ABDELFATAH: It's interesting because it seems like the fear around vaccines became sort of mixed in with the fear around outsiders, immigrants. In particular, I'm thinking of the late 1800s, early 1900s - a little bit before this case happened. I read that Chinese communities in California were particularly targeted for vaccinations. I'm wondering if you could speak to that a little.

WILLRICH: Yeah. So the Chinese community, particularly in San Francisco in now what uses the term Chinatown, that community was defined as much by public health officials as by anything else as a community of disease. And so when bubonic plague broke out in San Francisco in the very early 20th century, the response of the health authorities was to quarantine Chinatown from the rest of the city and to order that the people there be vaccinated with this very controversial, relatively new vaccine at the time called the Haffkine prophylactic.

And if a Chinese resident of that community wanted to leave at any point, they had to show evidence that they had been vaccinated. Some complied, and some were made sick by the prophylactic. This was a community with a really strong sense of rights consciousness that was forged by the fact that they were so discriminated against in California in the late 19th century. And so they actually sued in federal court saying that this was a violation of the 14th Amendment's equal protection clause.

And remarkably, the federal court said that's correct - that you can't, without any legitimate scientific basis, require people just because of their membership in a, quote, unquote, "race" to be vaccinated where the rest of the community was not required to be. So they established through this important case precedent for equal protection rights in public health - very important.

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ABDELFATAH: So all this was swirling around when Jacobson's case went before the Supreme Court. And when we come back, we'll find out what the decision was.

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ARABLOUEI: So in 1905, Jacobson was making the argument that he shouldn't have to get vaccinated because vaccines could cause him harm. And actually, at that time, there was some truth to that.

WILLRICH: Vaccines - at the time, the basic technology had been proven. Vaccines were quite effective. A routine vaccination caused discomfort. But in some instances that were very well recorded at the time, vaccines were associated with serious illness and even death. The worst episode occurred in Camden, N.J., in 1901, 1902, during these same epidemics. There was a serious epidemic of smallpox in that community.

And local health officials ordered all school children to get vaccinated before entering the schools. And this was carried out with considerable efficiency and using mainly this particular vaccine manufactured across the river in Philadelphia. And in due course, nine children who had recently been vaccinated died of tetanus. In my own research, I became pretty convinced - as many were at the time - that, in fact, the vaccine had been the vehicle for spreading tetanus among these children. So it was a great sort of - and very publicly aired tragedy.

ABDELFATAH: So people kind of had some reason to be concerned - right? - about the health side effects of vaccines. But in the Jacobson case, like, what were they arguing besides health concerns?

WILLRICH: You know, it's really interesting because Jacobson was making - and his lawyers were making a really well-positioned argument about individual liberty at a time when individual liberty arguments were being quite successful in the courts as people resisting economic regulations of all sorts - such as hours laws limiting the number of hours a worker could be required to work in a factory or wage laws or safety regulations and so on - were being challenged by employers and sometimes by individuals for violating individual property rights and liberty of contract and that kind of thing.

And so Jacobson's lawyers were making this case that - here goes the state again, you know, trying to be paternalistic and violating individual rights with no reasonable grounds. And they're citing all those other cases I just referred to.

ABDELFATAH: And was Jacobson just, like, a lone-wolf kind of person, or was there an anti-vax movement going on at the time that he was a part of?

WILLRICH: So there was an anti-vaccination movement that was actually a trans-Atlantic movement with significant levels of communication across the Atlantic to England, in particular. England had a very well-developed anti-vaccination movement in the late 1890s. And they were so successful politically that they actually persuaded Parliament to put a - an exemption in the law in 1898 for, quote, unquote, "conscientious objectors." And this was actually the first use of that term in the political lexicon. We think of conscientious objection associated with conscription, of the draft. But in fact, it originated in the anti-vaccination movement.

And then in Massachusetts, which was a real hotbed of anti-vaccination sentiment, the Massachusetts Anti-Compulsory Vaccination Society tried to use the State House to pass laws banning compulsory vaccination. And with that having failed, they looked for a good test case and found it in Jacobson. So his case was funded and litigated by this Massachusetts organization.

ARABLOUEI: Right. So like, it's obviously bigger than just Jacobson, just one person. But what's at stake when the case finally reaches the Supreme Court?

WILLRICH: It raised - or it gave the court an opportunity for the first time to consider whether or not it was constitutional for a state government to order individuals to get vaccinated, whether they wanted to or not, and to subject them to criminal penalties, to liabilities of various sorts, if they refused to be vaccinated. And the court resoundingly decided in favor of the power of the government to order vaccination.

ABDELFATAH: Why did they think that this issue - smallpox, public health issue - was too important to even allow for kind of individual liberties to win out?

WILLRICH: Yeah. Well, the old argument - and this goes back well before Jacobson- about public health was that the power of the state, the power of the government, to use its police powers to protect the public health had the same basic origin in government power, government sovereignty as did the right of the state to protect the population from an invasion - military invasion.

So in Jacobson's case, when he said, you know, I'm an individual and you're violating my liberty of belief and my freedom of action, the response in the majority opinion by Justice Harlan - who himself had been a Civil War veteran - was, we ask people during wartime to make much greater sacrifices. And this is like an invasion, this kind of situation, an epidemic of smallpox. He basically said that Jacobson had no more right to freedom in this area during an epidemic than an individual did to resist the draft during a war.

I think more important in the long run for getting the public around vaccination was the fact that vaccines became more safe. In 1902, 1903, right in the period we're talking about, Congress passed a law regulating biologics - so regulating vaccines and antitoxins, licensing manufacturers and imposing inspections and regulations on their production. This pretty clearly made vaccines more safe, and it eliminated a glaring contradiction in the law that had existed up to that point, where local and state governments were compelling people to get vaccinated even as they were doing nothing to ensure that vaccines were safe.

And then Jacobson settled the major constitutional questions, really, till this day.

ABDELFATAH: Yeah. I mean, is that the legacy of the Jacobson case?

WILLRICH: I think so. So today, the Jacobson decision is still good law. So when Mayor de Blasio declared a public health emergency and mandated that certain areas where measles had broken out - declared mandatory vaccinations in those areas under penalty of a $1,000 fine, that was perfectly consistent with the long tradition of public health law going back to Jacobson.

On the other hand, the epidemics of the early 20th century also have, I think, legacies in the ways that states have established vaccination laws that include significant protections for people with health risks or people with strong religious objections to compulsory vaccination or even, in some cases, simply philosophical exemptions.

So state laws have embedded some of the anti-vaccination arguments in them even as they, particularly with schoolchildren, require children to get more and more vaccines.

ARABLOUEI: If another case like this were to come up before the court, do you think the dynamics are different today than they were when Jacobson came before the Supreme Court?

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WILLRICH: They're certainly different. I mean, there's a - there is - the compulsory vaccination legislation of the early 20th century was passed during a period of broad sort of middle-class, at least, optimism about the state and what the state could do. This is the Progressive Era. And for some time now, we've been living in a kind of anti-Progressive Era, where neoliberal anti-statist arguments have, to a significant degree, carried the day at the highest levels of government. And so there's been a kind of - I don't know - attenuation of the idea that people are responsible for a society beyond their own concerns.

So I do see anti-vaccination arguments today as being kind of slender compared with the robust arguments of the early 20th century, arguments that were grounded in anti-racism and claims of equal protection or grounded in very strong personal liberty claims in an era of growing government authority or grounded in deeply held beliefs about parents' rights to take care of their children. The arguments that have been circulating in anti-vaccination literature in Brooklyn right now seem to be largely focused on pretty specious and disproven arguments about particular health risks allegedly associated with the MMR vaccine.

So I just think that we need to think very seriously about how to contend with the ongoing problem of scientific authority in a democracy. And that is certainly a legacy of the early 20th century.

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ABDELFATAH: That's it for this week's show. I'm Rund Abdelfatah.

ARABLOUEI: I'm Ramtin Arablouei. And you've been listening to THROUGHLINE from NPR.

ABDELFATAH: Our show was produced by me and Ramtin.

ARABLOUEI: Our team includes...

JAMIE YORK, BYLINE: Jamie York.

JORDANA HOCHMAN, BYLINE: Jordana Hochman.

LAWRENCE WU, BYLINE: Lawrence Wu.

N'JERI EATON, BYLINE: (Laughter) OK. Smizing (ph) and somber - N'Jeri Eaton.

ABDELFATAH: Thanks also to Anya Grundmann.

ARABLOUEI: And Chris Turpin.

ABDELFATAH: Our music was composed by Drop Electric.

ARABLOUEI: If you liked something you heard on the show or you have an idea, please write us at [email protected] or tweet us at @throughlineNPR.

ABDELFATAH: Thanks for listening.

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ABDELFATAH: All right. Cool.