Published September 14th, 2021 at 6:00 AM
In December 1921, with memories still vivid from the flu pandemic that ravaged the world in 1918, health officials in Missouri were confronted with an even more sinister and deadly threat – smallpox.
From Sept. 1 to Nov. 29, 1921, there were 271 cases and 96 deaths from smallpox in Kansas City. Determined to check the contagion, Dr. Cortez Enloe, secretary of the State Board of Health, asked Attorney General Jesse Barrett to analyze the limits of his powers.
Enloe wanted everyone traveling by train from Kansas City to other communities in the state to submit to mandatory vaccination and quarantine on arrival at their destination. Smallpox was the first disease for which immunity through inoculation was widely used, yet distrust of the preventive jab contributed to repeated outbreaks.
Compulsory vaccination, Barrett replied in an opinion dated Dec. 1, 1921, was the easy answer.
“(I)t has frequently been held that it is a valid exercise of the police power and no infringement of constitutional guarantees to require all members of the community to submit to vaccination subject to a penalty for failure to do so,” Barrett wrote.
The opinion, located Friday by The Independent with the assistance of the Missouri State Archives, explores various aspects of the powers public health officials have to control contagious diseases.
While Barrett found no constitutional problem with a vaccine requirement, a quarantine order did raise concerns. There was no question about the power to isolate people with known cases or exposure.
“But there can be no lawful isolation unless the person has been exposed to the disease,” Barrett wrote.
The smallpox cases and deaths over three months of 1921 that caused such alarm for state health officials are not even three day’s average cases of COVID-19 in Kansas City since June 1. And the 96 deaths are equal to the average coronavirus deaths statewide over any four days in August.
Barrett’s conclusions about Missouri law remains valid, former Missouri Supreme Court Chief Justice Mike Wolff said Friday.
The courts have not changed their views on whether a health emergency justifies mandatory vaccination in the century since that 1921 outbreak, Wolff said, adding that the courts will likely uphold President Joe Biden’s orders mandating COVID-19 vaccination or regular testing for 80 million employees of private businesses.
“Some of us in our society have to get over ourselves,” said Wolff, who is dean emeritus of Saint Louis University Law School. “Public health is about saving people’s lives from just these kinds of threats.”
The opinion of Barrett, a Republican elected as the GOP swept all statewide offices in 1920, does not reflect the public stance of the current Republican Attorney General Eric Schmitt. Appointed to the office in 2019 and elected to a full term in the GOP sweep of 2020, Schmitt is now a candidate for U.S. Senate.
“I don’t want to live in any futuristic, dystopian, biomedical security state,” Schmitt said at an Aug. 12 news conference. He tweeted a clip on Thursday, the same day as Biden’s announcement of the vaccine order.
Schmitt has not, however, issued a formal opinion on vaccine mandates.
Under Missouri law, the attorney general has a duty to issue an opinion in writing in response to specific legal questions from other public officials, including legislators, county prosecutors and other statewide elected officials. There have been no formal opinions on any subject other than ballot measures by any attorney general since April 2013.
The opinions do not have any binding power but are supposed to represent the best analysis that can be made of the current legal landscape on an issue. The attorney general’s office does not issue formal opinions on the constitutionality of legislative acts because the office has a duty to defend the General Assembly’s enactments in court.
When the smallpox outbreak hit Kansas City in 1921 it represented a major threat to health. Not only were there a lot more cases than in a normal year, the variant circulating was the more deadly hemorrhagic smallpox, with a death rate of up to one-third of those infected.
The city had suffered 11,000 deaths from the flu in 1918, so it knew the havoc of an unchecked epidemic.
Since the late 19th century, smallpox cases in the United States had been dominated by a variant that had a much lower mortality rate. The low death toll made people indifferent to vaccination, and cases were fairly common.
There were 514 cases of smallpox and but only two deaths in Kansas City in 1920, according to the June 22, 1923, edition of Public Health Reports. In 1921, there were 160 deaths out of 943 cases and another 63 deaths among 136 cases in 1922.
Dr. James P. Leake of the U.S. Public Health Service, sent to Kansas City to investigate the epidemic, said the variant circulating there was particularly deadly, more severe than he had known in this country in 50 years, the St. Louis Post-Dispatch reported Dec. 11, 1921.
An aggressive vaccination campaign in Kansas City had begun to check the spread, the newspaper reported. Enloe had used the power affirmed by Barrett to order railroads to require vaccine passports to board, refusing anyone “who did not exhibit certificates showing they had been vaccinated against smallpox within the last three years.”
Before the Delta variant of COVID-19 sent cases soaring, first in Missouri and then nationwide, Biden celebrated July 4 by declaring the nation was “closer than ever to declaring our independence from a deadly virus.”
The average daily report of new cases in Missouri hit a low for the year on June 3 at 396 per day. Nationally, the daily average was its lowest a few weeks later, at 11,219 per day.
Vaccination rates were at a low for the year as well, averaging 9,878 shots per day on June 3 in Missouri. The Delta variant wave, incentives including $10,000 cash prizes and the availability of booster shots pushed the number of daily shots above 15,500 a day in late August, but as of Wednesday, the average was below the early June rate, at 9,581 per day.
When the Delta variant wave peaked, in the first week of August, the state health department was reporting an average of more than 3,000 cases per day. In the week that ended Saturday, the average was 2,124 per day. Nationally, cases averaged 144,500 per day last week.
The toll so far for August, still being reported, is 733 deaths, an average of almost 24 per day. Since the Delta variant arrived in early May, the health department has reported 1,754 deaths.
Nationally, deaths have increased from a low of 209 per day in the first week of July to 1,630 per day as of Saturday.
The conditions exist to support Biden’s order, said Robert Gatter, professor with the Center for Health Law Studies at Saint Louis University School of Law.
It directs the Occupational Safety and Health Administration (OSHA) to develop regulations for all private employers with 100 or more workers. The employees must be vaccinated against the coronavirus that causes COVID-19 or have weekly tests for infection.
The thing that has really changed is cultural and political. It is a distrust of expertise and somehow a view that I need to do nothing for my neighbors in a public emergency and only do what I want for me. That cultural view is the problem.– Robert Gatter, professor with the Center for Health Law Studies at Saint Louis University School of Law.
Biden is also ordering vaccination with no test-out option for federal employees, medical workers employed by providers who accept Medicaid and Medicare, and people working for vendors receiving new federal contracts.
Both orders include exemptions for people based on medical reasons or sincerely held religious beliefs.
Those orders are consistent with the powers granted by law to OSHA, and Biden has the authority he is using as he ties vaccinations to federal funding, Gatter said.
Laws and rules were upheld most recently, Gatter said, when the Supreme Court refused to hear an appeal of a trial court ruling in favor of Indiana University’s mandatory vaccination requirement.
“I think the only thing that has changed most recently is the U.S. Supreme Court applying strict scrutiny in respect to religious freedom,” Gatter said.
The first case where the U.S. Supreme Court upheld mandatory vaccination came in 1905. The court decided that a Massachusetts law requiring every adult to be vaccinated against smallpox during outbreaks was constitutional.
In the case, Justice John Marshall Harlan noted that the man facing a criminal penalty for refusing the vaccine “insists that … a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law … is nothing short of an assault upon his person.”
Those attitudes are at the core of the objections being raised to Biden’s order, Gatter noted. It is far more widespread now, he said.
“The thing that has really changed is cultural and political,” Gatter said. “It is a distrust of expertise and somehow a view that I need to do nothing for my neighbors in a public emergency and only do what I want for me. That cultural view is the problem.”
Harlan made a similar point as he dismissed the arguments laid before the court in 1905.
“Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy,” Harlan wrote. “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”
Rudi Keller covers the state budget, energy and the legislature in Missouri. This story first appeared on the Missouri Independent, a nonpartisan, nonprofit news organization covering state government, politics and policy.