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Right on Point Podcast Does SCOTUS Have Authority to Mandate A Vaccine

Right on Point

Listen HERE

Updated link! Apologies.

Wayne Rohde for Episode 1 - Mary Holland and Wayne Rohde discuss the 1905 US Supreme Court decision on whether or not the state has the authority to mandate a vaccine and how this relates to current day debate of a COVID vaccine mandate.

Right on Point podcast hosted by Wayne Rohde examines legal rights and issues surrounding the National Vaccine Injury Compensation Program aka (The Vaccine Court), the PREP Act, the CounterMeasures Injury Compensation Program, and legalities of possible mandates of a potential COVID vaccine.

Mary Holland, Children’s Health Defense’s vice chair and general counsel, discusses the 1905 US Supreme Court decision Jacobson v State of Mass. Mary breaks down the decision and how it is applied today by courts and state & federal government. Mary and Wayne discuss the issue of whether the federal government mandate a COVID vaccine.




If you live in a state such as California, who has removed informed consent and most medical excuses from vaccines, then it is my opinion (not a lawyer) that you would have grounds to sue the state for fraud. The Federal "taxable vaccine" is "recommended" only. The state would have no legal authority to force your child to take the vaccine and impose the loss of thousands of dollars in public education as a penalty for non-compliance. Ask a school health official where you can purchase a STATE mandatory vaccine to fulfill the STATE LAW for public school attendance. If they send you to a state health clinic, ask the individual who would give your child the "immunization" if that product fulfills the STATE LAW for public school attendance. GET THIS ON CELL PHONE VIDEO and have them sign a statement saying this. Then tell them that they have just committed FRAUD and you will file suit against them PERSONALLY. ALL vaccines purchased by the state for school aged children are FEDERAL "recommended" "taxable vaccines" as per FEDERAL code. The fraud is that they are selling you a FEDERAL product which IS NOT MANDATORY as a STATE product claimed to be mandatory.


Emmaphiladelphia, TOB,
How would they know? Yes, that is the question, isn't it. I am not a lawyer, but it seems that in not knowing whether or not a procedure will cause harm to an individual, but still overriding their basic right to informed medical consent ( and informed medical refusal, because you cannot freely consent to something unless you have a right to refuse) it seems unlikely that pleading "how could we have known" would get them off either the moral , or possibly the legal hooks?
In cases where school boards have overridden doctors medical exemptions, it seems obvious that they did indeed know there was a potential for harm. I know that personally, should someone, or some board force a vaccine upon my immune compromised son and cause harm, I would do my best to take whatever legal action I could, including civil suits against individual board members, if for no other reason than to protect other children.


"I'm unaware of anyone being able to sue school districts or state health departments for vaccine injuries.'

As per my post below, the states only purchase Federal "taxable vaccines" (unless they fall under a Declared Emergency vaccine). This means a Federal tax has been paid per vaccine purchased such that the pool of tax money is placed in the U.S. Treasury for payout to a determined victim of vaccine injury (Vaccine Court). This also means that both the vaccine manufacturer and health care workers administering the Federal vaccine have liability protection. This was all laid out in the 1986 National Childhood Vaccine Injury Act. Besides the Federal Declared Emergency Law vaccines, "taxable vaccines" are the only ones that come with these protections. Currently, there is no such thing as a State "taxable vaccine."



I'd guess "no" on your last question. Schools in many states require vaccines for attendance, and (as all AoA folks know) the number of states without an exemption other than medical shrinks by the year; however, I'm unaware of anyone being able to sue school districts or state health departments for vaccine injuries. How could a district or state know you'd be harmed? A person would have to sue to get school services, rather than go along with the mandate, then sue if he gets hurt. That's the way it looks to me (but I'm not a lawyer).

Regarding your other questions, as Laura has noted many times, logic and civil rights were left by the wayside back in March. I recall reading in JAMA in May (https://jamanetwork.com/journals/jama/fullarticle/2765836?resultClick=1) a bizarre justification of "immunity passports" (in which your vaccination or previous infection status would be on your driver's license or other wallet document) as the "least restrictive alternative." Wow, right?

The logic goes like this: Because people breathing and partaking in normal social life can spread disease, breathing and partaking in normal social life are privileges, not rights. However, we'd sure hate to have everyone in the US on lockdown forever, so if you can prove you've had the shot, that's far less restrictive than keeping you locked in your house!

Few school children are taught today about Fred Korematsu, but the Supreme Court precedent that the government can imprison a person based solely on his racial background has not been overturned. There was a comment made in the *Trump v. Hawaii* decision about it being "overturned by history" or something like that, but the *Korematsu* decision is still standing precedent. Even fewer school children learn about Mitsuye Endo, who actually won her case. The decision, *Ex parte Endo,* was delayed until the end of the war so that FDR wouldn't look bad (the Peter Irons book, *Justice at War,* is amazing in the details it provides), but it said that actually, Ms. Endo had a right to due process of law--the right to a chance to prove she wasn't disloyal to the US--before being imprisoned for so-called military necessity. She had worked for the California DMV; her brother served during WWII in the US Army; she spent the entire war in a prison camp.

Many of the same tropes from WWII have come back during the coronavirus situation. One of them is the judiciary's reluctance to find executive or legislative action unconstitutional, no matter how egregious it is. One has only to read some of the decisions over the past few months saying that people have no more right to worship G-d than they do to visit a casino, to know that the Bill of Rights has been set aside.

Kim's other posts on what it's like for a family touched by autism to live through our current national nightmare are gut-wrenching. For a family barely managing to navigate the circus of online education, mask-wearing for a sensory-sensitive child, etc., thinking about repression and the dim prospects for American civil rights could be the last thing you need. I guess I would say that I think all of us who can spare the emotional energy should ask ourselves what our own personal lines are, and what we will do if someone threatens to cross them. It can be anything from looking at your education options if your child's school puts the hammer down on the coronavirus shot next year, to doing some networking to find out if any state is likely to be freer than your own. Once you've thought about the line, you may feel greater peace of mind. As troubled as I am by our national prospects, and as blessed as I am in my personal circumstances giving me less daily stuff to cope with, I limit the amount of time I spend worrying about the current state of repression. I know what I will do, and what I absolutely won't, and I can only make myself feel sick (and less available to my family) if I obsess over it.

I am encouraged by the low numbers of Americans telling pollsters they plan to get the shot, as well as by the plans floated to have doctors go first. They can't force an entire country to do something we don't want to do.


"The violence finally began when a few young attendees leaving one of these meetings argued with a police officer, and were promptly arrested. Witnesses to this incident furiously besieged the police station to which the men were taken, and continued to fight with cavalry officers brought in to disperse the excited mob.....Rioters looted shops, overturned and burned trams, made barricades, pulled out tracks, broke poles and streetlights, and attacked federal troops with rocks, sticks, debris, knives, and stolen guns. Factory laborers revolted in their own workplaces on the outskirts of town, while impoverished and evicted townspeople attempted to secure control over the heart of the city."

Is this a recent news report from Portland?

This is a description of Rio de Janeiro, Brazil during Revolta da Vacina, or Vaccine Revolt of 1904.
1904 was the year Jacobsen vs Massachusetts was submitted to the Supreme Court.


Hi TOB, thank you.
Re the ticket master etc stuff, it seems they are requiring information on peoples medical status. Is this a HIPAA violation? And for those who have a disability or medical condition that makes vaccines potentially unsafe, isn't refusing them service, or insisting on viewing their medical records, a violation of the disability act? Will it be like mask mandates, where someone just has to declare they have a condition that prohibits vaccination, and no further information has to be given?
Also, could these private entities be sued for vaccine injury if they require it for access?

Laura Hayes


Nothing seems to affect vaccine coercion legality. As a matter of fact, I gave an 80-minute presentation on the subject in 2018. Transcript and video link are included here:

“Why Is This Legal?” by Laura Hayes


I also want to mention that I always read your excellent comments with great interest! Thank you for sharing your insights with us here at AoA :)


Hera, Joanna, et al,

You are right about the date of *Jacobson* preceding VICP. It also precedes much of modern jurisprudence, as law professor Josh Blackman has noted in his column over at Reason. (The Reason people are very pro-vaccine, but the law column "Volokh Conspiracy" tends to look at things from a civil rights perspective, rather than taking the "I believe in science" line.)

Although Prof. Jacobson is not talking specifically about vaccines, his point about Jacobson (like yours) is relevant: "During the COVID-19 pandemic, Governors viewed Jacobson as a constitutional get-out-of-jail-free card. It isn't. Jacobson concerned a challenge based on the Due Process Clause of the Fourteenth Amendment—what we would today call substantive due process. It is a mistake to simply graft Jacobson onto the modern framework of constitutional law."


In other words, a state health department can't just shout, "Jacobson!" and shove a needle in your arm. Nor can it say, "No shul for you, because Jacobson!"

A broader concern that I have is not about whether the government can force a person to be vaccinated, but the issue that Kim raised in the TicketMaster post. If private businesses (for whatever reason: being true believers, financial incentives from government or pharma, or fear of employee lawsuits) deny service to people who have declined the vaccine, many people who put up with mask mandates will be forced to decide again how much of their bodily integrity, personal freedom, etc., they are willing to give up for the ability to buy groceries.

The policies around coronavirus have suffered from the same lack of discussion and lack of understanding of trade-offs (of which life is full!) that plague all public health discussions. When it's not his kid doomed to virtual school, or having an adverse vaccine reaction, or being offered HPV vaccination behind your back by a school nurse, it's easy for a politician to say, "Safety first!" and mandate all sorts of things. Obviously, nothing is free, but governments tend not to realize that up front.


What exactly, is "vaccine?"

The answer to this is KEY to preventing forced "vaccination."
The Vaccine Act of 1813 was "An Act to encourage Vaccination." So, what was "vaccine" in 1813?
According to the original law, "vaccine" had only ONE MEANING- Jenner's cowpox preparation or "vaccine matter" used to prevent smallpox. The original intent of the law included preventing VACCINE FRAUD and giving free shipping of the product by U.S. mail.

Jenner's original "genuine vaccine matter" was often fraudulently copied and sold. This law gave the President of the United States authority to....
"appoint an agent to preserve the genuine vaccine matter, and to furnish the same to any citizen of the United States, whenever it may be applied for, through the medium of the post-office; and such agent shall, previous to his entering upon the execution of the duties assigned to him by this act, and before he shall be entitled to the privilege of franking any letter or package as herein allowed, take and subscribe the following oath or affirmation, before some magistrate, and cause a certificate thereof to be filed in the general post-office: "I, A. B. do swear (or affirm, as the case may be) that I will faithfully use my best exertions to preserve the genuine vaccine matter, and to furnish the same to the citizens of the United States; and also, that I will abstain from every thing prohibited in relation to the establishment of the post-office of the United States." And it shall be the duty of the said agent to transmit to the several postmasters in the United States a copy of this act: and he shall also forward to them a public notice, directing how and where all application shall be made to him for vaccine matter.

SEC. 2. And be it further enacted, That all letters or packages not exceeding half an ounce in weight, containing vaccine matter, or relating to the subject of vaccination, and that alone, shall be carried by the United States' mail free of any postage, either to or from the agent who may be appointed to carry the provisions of this act into effect: Provided always, that the said agent before he delivers any letter for transmission by the mail, shall in his own proper handwriting, on the outside thereof, endorse the word "Vaccination," and thereto subscribe his name, and shall previously furnish the postmaster of the office where he shall deposit the same with a specimen of his signature; and if said agent shall frank any letter or package, in which shall be contained any thing relative to any subject other than vaccination, he shall, on conviction of every such offence, forfeit and pay a fine of fifty dollars, to be recovered in the same manner as other fines or violations of law establishing the post-office: Provided also, that the discharge of any agent, and the appointment of another in his stead, be at the discretion of the President of the United States."

"The Act was repealed in 1822, and the authority to regulate vaccines given to the states. This repeal was the result of an 1821 outbreak of smallpox in North Carolina, which was traced to samples of smallpox, instead of vaccine, accidentally provided by Dr. John Smith[3] while in the capacity of the federal agent charged with preserving and distributing genuine vaccine.[4]"

After the repeal, the authority to regulate went to the states. The word "vaccine" still referred to Jenner's
"genuine vaccine matter" to prevent smallpox. The Federal government's intent was to "ENCOURAGE vaccination, not force it.

This was still the case in 1905 in Jacobson vs Massachusetts.
ALL the details of the law refer ONLY to Jenner's "genuine vaccine matter" for the prevention of smallpox. Even in my 1938 Webster's New Modern Dictionary, "vaccinate" means "to inoculate with vaccine matter as a protection against smallpox." (That is the ONLY definition)
The definition for "vaccine" is "pertaining to, or obtained from, cows; caused by the cowpox: n. a liquid taken from the udder of a cow affected with cowpox. "(Only definition)

SO WHAT IS THE DEFINITION OF THE WORD "vaccine" in the current Federal code? (1986 National Childhood Vaccine Injury Act) Is it the same? NO! In fact, the product used by the states is officially a legally defined "taxable vaccine."

"Please give me the legal definition for the term “vaccine” as used in the National Vaccine Injury Compensation Program (Vaccine injury Table) described in “National Childhood Vaccine Injury Act 1986” Public Law 99-660 Nov. 14, 1986, 42 USC 300aa-14 “Vaccine Injury Table” Sec. 2114 (a).
Does the new Heplisav-B product fit this definition? It is not an attenuated virus. It is an artificial recombinant DNA product with a novel adjuvant, Toll-like receptor 9 agonist.
"Dynavax is a fully-integrated biopharmaceutical company focused on leveraging the power of the body's innate and adaptive immune responses through toll-like receptor (TLR) stimulation. Dynavax discovers and develops novel vaccines and immuno-oncology therapeutics. The Company’s first commercial product, HEPLISAV-B® [Hepatitis B Vaccine (Recombinant), Adjuvanted], is approved in the U.S. for prevention of infection caused by all known subtypes of hepatitis B virus in adults age 18 years and older.” (April 18, 2019 Press Release)"
"Good morning,
Per 26 USC 4132, this would be a covered vaccine under the Vaccine Injury Compensation Program. Here is a link to an additional reference: https://www.govinfo.gov/content/pkg/USCODE-2006-title26/pdf/USCODE-2006-title26-subtitleD-chap32-subchapC-sec4132.pdf


Dale Mishler, DHSc, MS, APRN
Captain, United States Public Health Service
Chief, Countermeasures and Review Panel Branch
Division of Injury Compensation Programs
Healthcare Systems Bureau
Health Resources and Service Administration
U.S. Department of Health and Human Services
5600 Fishers Lane, Room 08N168
Rockville, MD 20857"
"§ 4132. Definitions and special rules
(a) Definitions relating to taxable vaccines
For purposes of this subchapter—
(1) Taxable vaccine
The term ‘‘taxable vaccine’’ means any of
the following vaccines which are manufactured or produced in the United States or entered into the United States for consumption,
use, or warehousing:
(A) Any vaccine containing diphtheria toxoid.
(B) Any vaccine containing tetanus toxoid.
(C) Any vaccine containing pertussis bacteria, extracted or partial cell bacteria, or
specific pertussis antigens.
(D) Any vaccine against measles.
(E) Any vaccine against mumps.
(F) Any vaccine against rubella.
(G) Any vaccine containing polio virus.
(H) Any HIB vaccine.
(I) Any vaccine against hepatitis A.
(J) Any vaccine against hepatitis B.
(K) Any vaccine against chicken pox.
(L) Any vaccine against rotavirus gastroenteritis.
(M) Any conjugate vaccine against streptococcus pneumoniae.
(N) Any trivalent vaccine against influenza.
(O) Any meningococcal vaccine.
(P) Any vaccine against the human
(2) Vaccine
The term ‘‘vaccine’’ means any substance
designed to be administered to a human being
for the prevention of 1 or more diseases."

In my opinion, the 1986 Act preempts the 1905 Jacobsen vs Massachusetts decision by legal definition.
The Federal "taxable vaccine" is RECOMMENDED only, by law.
The states do not have legal authority to force vaccinate with a Federal "taxable vaccine".


thanks for the link, bayareamom!
I would appreciate a discussion of how abdication of fiduciary responsibilty for safety could affect vaccine coercion legality, if at all, in terms of sealing Vaccine Court cases, denying discovery, witholding access to the Vaccine Safety Datalink by independent researchers, not providing safety updates to Congress as required by the 1986 Act, failure to provide minimal safety standards (such as in the ICAN suit about inadequate Hep B study for newborns), and not testing for carcinogenicity, mutagenicity, and fertility impairment, the lack of legislative oversight in the William Thompson revelations, and also the general pharma history of malfeasance.


Isn't it also true that the Jacobson decision preceded the indemnification of vaccine manufacturers? If Jacobson had been compelled to vaccinate (and the fine was not an option) he also could have sued for an adverse event, yes? Does that have any bearing on present day mandate considerations?


TOB, very interesting. Also, at the time of Jacobsen, would it be correct to say that Jacobsen also retained the right to sue if injured? I wonder ( I am not a lawyer) if anyone with more legal knowledge could say if the fact that the vaccines now being promoted , unlike in Jacobsens time, come with zero liability, and no ability to sue upon injury, would also mean the two situations are dissimilar?


Here is the link to Wayne's website re the podcast with Mary Holland; the link provided wouldn't allow me to access because I didn't have an account:



Excellent video with Polly Tommey and Mary Holland re discussion of a potential Covid vaccine mandate, etc.:



Do you have to be a member of Rescue Post to access this podcast?
I am not able to access this through your "listen here" link.

This is a great topic and I would love to hear what Mary Holland has to say.


I agree with TOB. The government cannot have the legal right to violate the bodily integrity of a person who does not want to be vaccinated. This right is protected by the Nuremberg Convention and the Helsinki Declaration. However, laws could be passed and enforced which mandated showing proof of vaccination for many different activities, travel, education, grocery shopping, etc. I hope that with increasing awareness of the dangers of vaccines, that it would not come to that, but it might. Also, constitutional and human rights only apply if there are enough people who value them enough to enforce them. I do not agree with what you say, but I will defend to the death your right to say it. Increasingly, that is not the case in our society, and it’s become My way or I run over you on the highway.


Still to take away property rights to make a person to submit; is that right?


I cant access the podcast, and cant find it on a search engine.
I would love to hear it.
The 1986 Act, in conjunction with the Scalia decision, should invalidate all vaccine mandates in the US, as it requires the vaccinee to forfeit constitutional rights, such as right to trial by jury and due process, which is not available in Vaccine Court.
It is one thing to legislatively abolish those rights, if one use the product, and another to require one to to use the product, and thereby deny consitutional rights without consent.
Additionally, more is known about the mechanisms and severity of vaccine injuries than in 1905, which makes coercion a deep violation of person, and thereby, religious freedom.


My understanding is that the decision in *Jacobson* was about due process and property rights, i.e., that the state could deprive Jacobson of money (a fine) for choosing not to be vaccinated against smallpox, **not** that it could forcibly vaccinate him. It may seem a trivial distinction to some, but not to a lawyer. A person's bodily rights are subject to different legal precedents, and laws restricting them are subject to different scrutiny, than are a persin's property/due process rights and laws restricting them.

In other words, the press and politicians typically misunderstand how much, and what type of, power *Jacobson* gives governments regarding public health.

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