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Subject Area: Law
Topic: The American Revolution and Constitution

§ 17.: Compulsory submission to surgical and medical treatment.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 17.

Compulsory submission to surgical and medical treatment.—

Although it has never been brought before the courts for adjudication, it is nevertheless a most interesting question of police power, whether a person who is suffering from disease can be forced to submit to a surgical operation or medical treatment. We can readily understand the right of a parent or guardian to compel a child to submit to necessary medical treatment, and likewise the right of the guardian or keeper of an insane person to treat him in a similar manner. So also can we justify the exercise of force in administering remedies to one who is in the delirium of fever. But can a sane, rational man or woman of mature age be forced to submit to medical treatment, though death is likely to follow from the consequent neglect? If the disease is infectious or contagious, we recognize without question the right of the State to remove the afflicted person to a place of confinement, where he will not be likely to communicate the disease to others;1 and we recognize the right of the State to keep him confined, as long as the danger to the public continues. Inasmuch as the confinement of such a person imposes a burden upon the community, all means for lessening that burden may be employed as a legitimate exercise of police power; and if a surgical operation or medical treatment be necessary to effect a cure, the patient cannot lawfully resist the treatment.

Not only is this true, but it seems that medical and surgical treatment can be prescribed, against the consent of the individual, as a preventive of contagious and infectious diseases. Thus in England, and probably in some of the United States, vaccination has been made compulsory.2 When one remembers the terrible scourges suffered from small-pox in the past, and thinks of the moderation and control of them effected by a general vaccination of the people, no one would hesitate to answer all philosophical objections to compulsory vaccination by an appeal to the legal maxim, salus populi suprema lex. In the United States, school boards have been very generally authorized by statute to exclude children from the privileges of the public schools, who have not been vaccinated. This law has been contested in a number of cases, on the ground that it was an unconstitutional interference with personal rights. But, in every case, the constitutionality of this exercise of police power has been sustained.1 And in Georgia a city ordinance was sustained which required every one to submit to vaccination when the small-pox was epidemic.2

A number of decisions have sustained the constitutionality of laws, which made vaccination compulsory upon school children.3 The opposition to compulsory vaccination seems to be growing, under the fostering care of the Anti-Vaccination League; and the writer has received from its secretary a number of pamphlets and other communications, which were intended to demonstrate the inequity of vaccination in general and of compulsory vaccination in particular. In accordance with the principles set forth in the text in the present section, there could be no more outrageous violation of personal security, which is guaranteed by all American constitutions, than the compulsory vaccination of an unwilling victim, if it could be proved that vaccination was not only futile as a protection against the loathsome disease of small-pox, but positively injurious to the health of the subject. The proof of the futility of vaccination would alone take away all constitutional justification of compulsory vaccination. But the opponents of vaccination are confronted with the testimony in its favor of the most prominent physicians of the world, who unhesitatingly pronounce the treatment to be efficacious in reducing the dangers of contagion and the mortality from small-pox; while they declare it to be in no way injurious to the health of the subject.

In the face of such an array of expert testimony, it is not surprising that the courts have uniformly sustained the constitutionality of laws, which make vaccination compulsory. This expert testimony may be erroneous, as expert testimony often is; but its unreliability must be proven to the courts, in order to successfully resist the enforcement of vaccination laws.

For the same reason, viz.: the preservation of the health and life of others, where medical attendance and surgical operations are necessary to procure the successful delivery of a child, the consent of the woman is not necessary. The saving of her life and the life of the child is a sufficient justification for this invasion of the right of personal security. But where the neglect of medical treatment will not cause any injury to others, it is very questionable if any case can be suggested in which the employment of force, in compelling a subjection to medical treatment of one who refused to submit, could be justified, unless it be upon the very uncertain and indefinite ground that the State suffers a loss in the ailment of each inhabitant, which may be guarded against or cured by the proper medical treatment.

[1]See post, § 44.

[2]In Montreal, Canada, during the winter of 1885-86, the enforcement of such a law was resisted by a large part of the population, and serious riots ended. It has been made optional in England by recent statute (1898).

[1]Bissell v. Davison, 65 Conn. 183; In re Walters, 84 Hun, 457; Duffield v. School Dist. of Williamsport, 162 Pa. St. 476; Abeel v. Clark, 84 Cal. 226. In Illinois it has been held that a school board cannot require vaccination as a condition precedent to the attendance of a child upon the public school, except where small-pox is epidemic in the place. People v. Board of Education, 177 Ill. 572.

[2]Morris v. City of Columbus, 102 Ga. 792.

[3]On the general question of the constitutionality of law, requiring all school children to be vaccinated, see Nissley v. School Directors, 18 Pa. Co. Ct. 481; 5 Pa. Dist. 732; Sprague v. Baldwin, 18 Pa. Co. Ct. 568; Duffield v. Williamsport School Dist., 162 Pa. St. 476; Bissell v. Davison, 65 Conn. 183; In re Rebenack, 62 Mo. App. 8; Morris v. City of Columbus (Ga. 99), 30 S. E. 850; Miller v. School Dist., 5 Wyo. 217. There must, of course, be an express statutory authority, in order to justify a board of health in forcing vaccination upon unwilling patients. State v. Burdge, 95 Wis. 390. And where compulsory vaccination is provided for in general terms, it can be enforced against school children only on the occasion of a small pox epidemic. A resolution of a school board, under such a law, denying the privileges of the school to children at other times, who do not produce a certificate of vaccination, is void and without authority. Potts v. Breen, 167 Ill. 67; 47 N. E. 81. But it is lawful, however, to require at all times such a certificate of vaccination when it is authorized by statute. Lawbaugh v. Board of Education, 66 Ill. App. 159.