To The Daily Sun,

While arguments at Friday’s Supreme Court on two COVID mandate cases involving OSHA and health care workers, on governmental authority took three hours, unfortunately, little was said of the history of required vaccinations.

Policies regarding mandatory vaccinations for small pox, polio, etc., mask mandates and exclusions to control contagious diseases to protect others is established law.

A historical review of the legality of “mandates” may be useful:

From Venetian times, a connection between seafaring and the spread of infectious disease was recognized. The term “quarantine” is Italian, meaning “forty,” the days ships were detained before allowing disembarkation due to contagion.

In 1647, the Massachusetts Bay Colony enacted a law to prohibit foreign entry of the sick. In 1754, New York regulated entry to control yellow fever. In 1796, the federal government enacted “An Act Relative to Quarantine” allowing federal revenue officers to enforce quarantine laws. In 1799, “An Act Respecting Quarantine and Health Laws” gave the secretary of treasury enforcement power. After the Civil War, quarantine authority was shifted to the secretary of war in a “Joint Resolution to control the spread of Yellow Fever.” With outbreaks, came the 1878 "Act to Prevent the Introduction of Contagious or Infectious Diseases into the United States." Due to smallpox epidemics, Congress authorized quarantine stations. 1890 brought the Interstate Quarantine Act to avoid interstate transmission of cholera, yellow fever, smallpox, and bubonic plague.

In 1896, the Supreme Court upheld federal powers under the Commerce Clause and states in Bartlett v. Lockwood, affirming "authority ... to establish quarantine regulations to protect the country ... and .... its commerce from contagious and infectious diseases."

In 1918, the Spanish Flu (the H1N1 virus with avian origin), was brought by military personnel returning from World War I. 500 million people became infected with 50 million deaths worldwide and 675,000 in the U.S. where mandates on quarantines and masking were enforced by federal, state and local governments.

Friday’s Supreme Court argument over the OSHA mandate came from several states, business groups, who objected to vaccination and mask mandates due to an alleged worker shortage, etc.

The OSHA mandate would affect 84 million American workers employed by companies with over 100 workers. Several justices doubted that OSHA provided the legal authority to impose mandates despite a history of government legislation/regulation to keep Americans from contracting contagious deadly diseases. Chief Justice Roberts said the states and Congress, rather than a federal agency, were better suited to address the pandemic in the nation’s workplaces. “This is something that the federal government has never done before,” he said, adding that the administration’s several virus-related mandates were “a workaround” in response to congressional inaction.

The court appeared more likely to allow the mandate for health care workers at facilities receiving federal funds, although that is by no means a certainty.

It is unfortunate that the Supreme Court may not review history and precedents to enforce mandates to protect the public, but that should not prevent states, including New Hampshire, from doing so as they have for other deadly contagious diseases.

Eric Taussig


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