“Another Human Sacrifice Thrown to the Pitiless Moloch of Police Power”: The Anti-Vaccination Movement, Parental Rights, and the Roots of American Anti-Statism, 1890–1917

Abstract

This article revisits the roots of anti-statism in the United States by analyzing opposition to the introduction of compulsory school vaccination and medical examinations at the local and state levels in the Progressive Era. It shows that the widespread use of compulsory schooling laws to promote vaccination in the late nineteenth century, which led to establishing compulsory school medical exams and school nurse programs in the early twentieth, precipitated intense conflicts over states’ police powers. Exploring the controversy over school vaccine requirements in Utah between 1899 and 1901, the article reveals that resistance to public health interventions in schools fused skepticism of science with a gendered defense of individual and parental rights to challenge states’ power over children. The article then traces how these conflicts filtered up to the federal level, framing arguments against a proposed federal department of health in the 1910s. Led by the National League for Medical Freedom, opponents directly linked the reach of the police powers via compulsory school health initiatives with the expansion of federal power, arguing they were connected in a plot to establish “state medicine” that imperiled the gendered freedom of the “individual”—i.e., the white male citizen—over the home.

In 1917, an anti-vaccinationist who styled himself as “A. Layman” penned an opinion piece for Kentucky's Hartford Herald which promised to deliver a fatal blow to the “solar-plexus” of compulsory vaccination. His outburst was provoked by a recent local order that used Kentucky's compulsory schooling law to promote the practice. The order made vaccination a condition of entry to public schools—one of the most widespread and effective tools available to foster vaccination in the Progressive Era. The layman's diatribe incorporated the full range of anti-vaccination arguments that had been circulating the country for three decades. He rejected the science and safety of vaccination: “Tens of thousands of miserable deaths, wrecked lives and rotted arms,” he claimed, had been caused not by the scourge of smallpox but by “blood poison” resulting from the fraudulent science of vaccination. Next, he alleged that vaccine manufacturers and the state were engaged in a monopolistic conspiracy in which both profited off the public's fear of smallpox. In his view, this collusion between the state and professional medicine exemplified the condescending and paternalistic attitudes of Progressive elites that were in equal measure offensive and perplexing. Why, he asked, did a “cocksure votary” want to force his child to be vaccinated when their own was allegedly “gloriously immune?” ¹

But at its core, the layman's case against compulsory vaccination was an argument against the expansion of state powers that imperiled his individual liberty as head of the household. In quantifying the assault that school vaccination laws represented, the injury went far beyond the injection itself—it raised the specter of state agents invading white men's sovereign homes and usurping their rights over their children. Indeed, as the layman warned readers of the Hartford Herald:

Whatever may be your just and manly pride in the purity and sanctity of your blood … and in spite of all of the canons that safeguard your home as your castle where even kings may not enter unbidden, this odious gang may send a burly Hessian without charge, as if unvaccinated you are worse than a criminal to break down your door, invade your home, assault your person, rope and tie you down like a wild beast and corrupt and flesh your blood … with a festering sickening pus. ²

The deep skepticism of state power laced with a combustible sense of manly pride that coursed through the layman's diatribe against compulsory vaccination captured the entwined role that gendered ideas about parental liberty and anti-statist ideology played in anti-vaccination politics in the early twentieth century. The rhetorical slippage between the physical assault on his child and the political assault on his own liberty, bound together by corporeal “flesh and blood,” is revealing. It lays bare a broader, gendered claim permeating both anti-statist and anti-vaccination politics at the turn of the century: that the concept of individual freedom included the right of independent men to make decisions on behalf of their dependent kin.

Equally revealing was the source of the problem in the layman's account: school vaccination requirements represented the apex of a broader crisis of government excess that had been brewing for decades. In this case, the police powers—which under the US Constitution give state legislatures far-reaching authority to enact and enforce laws to protect the “welfare, safety, and health of the public”—were the source of that crisis. The layman argued that for two decades, paternal legislation, justified under the guise of the police powers, had steadily and systematically “shattered” the “natural, incontestable and inalienable rights of man,” culminating in the local Kentucky school vaccination order. In the layman's view, the broad sweep of state power being used in this manner to abridge his paternal rights and assault his child epitomized the false theory of government that had taken root “in this new era, very debauch in police powers.” The life of his child—or any child—endangered by school vaccination requirements became “another human sacrifice thrown to the pitiless Moloch of police power.” ³

This article argues that battles over school vaccination policies and medical exams reveal the central role of gender and the police powers in the development of broader anti-statist political movements. Specifically, challenges to the state's authority over children's bodies expose the deeply gendered conceptions of “individual liberty” that coursed through anti-regulatory movements in the Progressive Era, which would eventually explode within anti-feminist and anti-statist politics in the 1920s. Historians of vaccination politics such as Michael Willrich, Robert Johnston, James Colgrove, and Karen Walloch have shown that the dispute over vaccination was one of the most fundamental conflicts over both individual liberty and scientific authority in the early twentieth century. ⁴ Similarly, historians of education such as William Reese and Tracy Steffes have captured the intense parental resistance that school reformers often faced when attempting to enact compulsory education and school vaccination. ⁵ This article builds upon and connects these two bodies of literature by analyzing the gendered ideology that underpinned an anti-statist politics that interchangeably and putatively spoke the language of “individual liberty” and “parental rights.” Anti-vaccinationists did not simply assert their right to refuse vaccination but rather claimed their parental right to make decisions on behalf of their children.

Health reformers in the Progressive Era sought to harness the state's expansive powers over schools to introduce public health interventions. As one physician explained in 1915, 20 million children between ages four and fourteen—one-fifth of the total population of the United States—attended public schools each day under state mandate. ⁶ Recognizing this fact, public health interventions quickly escalated from school vaccine requirements in the 1880s and 1890s to compulsory school medical exams and school nurse programs in the early twentieth century. ⁷ As a primary space in which Americans regularly encountered state power, schools became breeding grounds for anti-statist politics that swept ordinary people into fierce debates over government reach. And because compulsory vaccination and medical examinations represented one of the most invasive encounters a person could have with state power, these debates became particularly heated. Battles over school vaccination requirements both seeded and shaped antipathy to government authority—at the state and federal levels—in gendered ways. Focusing on the conflict over school vaccination requirements in Utah at the turn of the twentieth century reveals how, by rejecting the science of vaccination, ordinary Utahns also rejected new technologies of rule. They critiqued the police powers as bureaucrats’ antidemocratic usurpation of authority and an affront to the liberty of the presumed, and still predominant, subject of liberal democracy: white male heads of households. ⁸

These local political fights had consequences for federal governance. Critiques of the police powers framed how anti-vaccinationists and alternative health practitioners viewed the proposal to establish a federal department of health. In the 1910s, the newly established National League for Medical Freedom (NLMF) sank such proposals multiple times by tapping into the arguments and networks marshalled by anti-vaccinationists, homeopaths, and parents opposed to school medical exams in the decades prior. The organization and its supporters insisted that federal intervention into the private realm of health was the logical outgrowth of local vaccination policies. Warning against nationalizing the dangerous powers being exerted by the states, the NLMF argued that a federal department of health would imperil the same gendered individual freedom and the home.

This article uses the conflict over school vaccination requirements and medical exams in the Progressive Era to demonstrate how the authority and reach of the police powers engendered the development of anti-statist politics. Traditionally, anti-regulatory critiques of the police powers have been most strongly associated with conflicts over labor law and lambasting laissez-faire ideologues such as Christopher Tiedeman and Thomas Cooley, infamously encapsulated in the US Supreme Court's decision in Lochner v. New York (1905). Recent scholarship on law and state building has rightly sidelined Lochner and offered a corrective to what William Novak has dubbed the “myth” of anti-statism. ⁹ In its place, historians, especially of the Gilded Age and Progressive Era, have recovered a highly active regulatory state. Certainly, school vaccination requirements and medical exams offer strong support for this revisionist take. ¹⁰

However, what has been lost in this emphasis on recovering the nature of state building is an analysis of how new forms of state power bred new forms of anti-statist resistance. Historians of labor law have recovered vibrant contestations over the meaning of “liberty” in the Progressive Era. ¹¹ Yet, as Michael Willrich has argued, debates over liberty abounded far beyond Lochner and the realm of industrial labor law. ¹² Indeed, the gendered critiques of the police powers offered by parents and anti-vaccination activists suggest a common ideological thread that connects anti-vaccination politics with the laissez-faire ideology of the era; namely, that the paternal powers of the state were viewed as a threat to the paternal rights of men. ¹³ Moreover, this thread reveals further ideological continuities in anti-regulatory politics between the 1910s and 1920s. Historians of anti-statism have argued, for example, that the Red Scare of 1919 and the Nineteenth Amendment that formally enfranchised women triggered an anti-feminist and anti-radical backlash in the 1920s that manifested in anti-regulatory, anti-welfare politics which stoked fears of the centralized bureaucratic power of the federal government. ¹⁴ Recovering a clear antecedent to that gendered anti-statist discourse in the 1910s suggests that anti-statism is not merely synonymous with antipathy to federal power. Rather, opposition to the power of the State was in fact rooted in the power of the states, as expressed by the complaints of anti-vaccination activists like A. Layman. ¹⁵

“In the School of the Future Compulsory Education Will Involve Compulsory Health”: Schools, Administrative Power, and the Problem of Public Health

When the layman penned his diatribe against compulsory vaccination in 1917, such requirements for entry to public schools were commonplace in much of the United States. In the wake of several successive smallpox outbreaks between 1870 and 1900, public health reformers convinced local townships and state governments to tie mandatory vaccination requirements to compulsory schooling laws. While a vaccine against smallpox had been available since the early nineteenth century, it was the combination of compulsory schooling laws, the development of germ theory, and the related expansion of public health authorities that prompted the first widespread efforts to promote immunity through compulsory measures. Between 1855 and the early 1870s, large Eastern seaboard cities such as Boston, Brooklyn, and New York led the nation in requiring vaccination for entry into public schools. A growing number of state health boards followed suit in the 1880s and 1890s, including those in the Midwest, South, and West. ¹⁶ By the turn of the twentieth century, at least seventeen states and hundreds of major cities had legal mechanisms in place to enforce the vaccination of schoolchildren. ¹⁷

There are several reasons why these mandatory vaccination laws focused on school-aged children. First, by the late nineteenth century, smallpox had become primarily a childhood disease in the United States and Europe, ravaging children under seven years of age. Those who survived an infection enjoyed lifelong immunity. Second, the rise of public education in the late nineteenth century saw school populations mushroom, often stretching far beyond the physical capacity of classrooms in rapidly growing cities. As Luther Gulick and Leonard Ayres, two leading proponents of the school hygiene movement, put it in 1913, crowded classrooms had become “the most certain center for infection in the community.” ¹⁸

The focus on school-aged children in the US, however, also reflected the particular shape of state power. In the mid- to late nineteenth century, Britain also took successive steps to compel the vaccination of children, but its tool was a national law that required all infants to be vaccinated by three months of age. ¹⁹ In contrast, public health in the United States was a matter reserved for the states under the Constitution. Health reformers thus sought to harness states’ existing compulsory powers over children to stage public health initiatives for the population at large. Public schools offered the most obvious site for intervention. Between 1867 and 1900, thirty-two states had introduced compulsory school attendance laws, and public health reformers aimed to employ what Gulick and Ayres called the “drag-net of compulsory education” to compel vaccination. ²⁰

The widespread adoption of school vaccination requirements built upon the expansion not only of public education but also of municipal and state health authorities via the introduction of boards of health. In 1866, for example, New York City established its Municipal Board of Health, and one of its very first acts was to insist upon the rigid enforcement of an 1860 state law that required vaccination for public school attendance. ²¹ By 1871, the board had employed a “corps” of vaccine inspectors to enforce the law and by 1875, boasted that they had already vaccinated 17,505 schoolchildren. ²² Massachusetts was the first state to adopt an effective state board of health in 1869. After a smallpox outbreak in 1886 into 1887, this board was responsible for successfully implementing the near-uniform adoption of school vaccine requirements across the state. ²³

Local boards of health had deep administrative roots in the colonial period and early republic, but postbellum boards built on these antebellum antecedents in two important respects. ²⁴ First, local health boards after the Civil War centralized municipal control and often precipitated the reorganization of municipal government itself. New York's board, for example, consolidated the sweeping powers previously held by the health authorities of four New York counties and three neighboring towns. Second, the composition of local boards was enlarged and medically professionalized. Early health boards were appointed by the mayor and often consisted of a single health officer. By the late nineteenth century, most health boards expanded to include nine or more members, of whom at least one-third were required to be professional physicians. ²⁵

These changes represented a general trend toward the professionalization of public health in the late nineteenth century, and the shift vested health officials with wide authority. Modeled on English examples, the New York Board of Health possessed broad police powers as delegated by the state legislature. It had the power to enact and enforce public health ordinances, issue warrants, compel witnesses, and settle actions. In times of epidemics, it was authorized to take any steps “as it may in good faith declare the public safety and health demand.” ²⁶ Growing concern about communicable diseases in industrializing urban hubs and the rising influence of orthodox medicine both buoyed the formation and reformulation of health boards and gave them reason to use their wide-reaching powers.

School vaccination laws, therefore, brought together two important exercises of the police powers and exemplified the expanding nature of late-nineteenth-century governance at the local and state levels. The enactment of laws, of course, was an altogether different matter from their enforcement. School boards and principals sometimes resisted implementing vaccine requirements and resented the intrusion of vaccine inspectors because they jeopardized attendance. But when school and health authorities worked in concert, tying vaccine requirements to compulsory schooling laws provided one of the most effective and far-reaching instruments available to vaccinate a large sector of the population. Although the US Supreme Court upheld a Massachusetts law in 1905 that gave municipalities the power to compel vaccination among the general population during an epidemic, most state and local governments shied away from general mandates affecting adults. Instead, they used compulsory education laws as an indirect means to promote widespread vaccination. ²⁷ School vaccination requirements appealed to health reformers because they not only reached such a large section of the population, but also provided the best legal loophole to sidestep the government's inability to force citizens to submit to vaccination. ²⁸ Indeed, as anti-vaccinationists frequently pointed out, they were “caught between two fires”: required by law to send their children to school and required by law to vaccinate their children in order to do so (Image 1). ²⁹

Image 1. Cartoon from Medical Freedom 14, no. 2 (October 1914): 23.

Furthermore, in the first decades of the twentieth century, vaccine requirements seeded even more expansive forms of state medical interventions in schools. ³⁰ The growing acceptance of germ theory in the 1880s and 1890s spurred vaccine inspectors to check children for symptoms of other communicable illnesses such as diphtheria and scarlet fever. ³¹ Routine inspections brought to light a wide array of common and often treatable conditions in schoolchildren, and reformers began to promote medical inspections as means to stage early and preventative health interventions. Massachusetts was the first state to introduce a system of school medical inspections in 1897, and ten years later it became the first state to make medical examinations compulsory. By 1904, thirty-four cities had medical inspections in schools. Between 1908 and 1911, the number increased threefold to four hundred fifty municipalities, with seventeen states having mandatory or optional systems in place. And by 1923, thirty-nine states legislated compulsory school medical examinations on either city- or state-wide bases. When the Progressive Era came to a close, compulsory public health measures were a routine part of life for most American public school students. ³²

For health reformers, using compulsory schooling to promote public health was not only the right and duty of governing authorities but also a ripe opportunity. Philanthropists, physicians, and reformers all enthusiastically embraced the possibilities of staging public health interventions in schools. In 1881, Dr. Dudley Sargent founded the Sargent School of Physical Education at Harvard University, seeking to build an army of “biological engineers” to launch far-reaching health interventions from elementary schools to colleges to improve the health of the nation. ³³ On the ground, Lillian Wald, a trained nurse and founder of the Henry Street Settlement in New York City, pioneered the school nurse program, seeking to remedy the problem that medical exams only identified and did not treat the illnesses found in children. In 1902, Wald piloted a program to treat infectious conditions such as conjunctivitis, ringworm, and headlice in schools, with follow-up home visits. As a result of the program, the number of school absences due to illness in one year declined tenfold. By 1910, sixty-seven cities had followed Wald's example and employed school nurses. ³⁴ Most public health reformers and an ever-growing number of municipal and state governments concurred with Wald's assessment that the school was “the most efficient agency” to meet the state's responsibility to the “development of its citizens (Image 2).” ³⁵

Image 2. Inside Cover Image: Luther Halsey Gulick and Leonard Porter Ayres, Medical Inspection of Schools (New York: Survey Associates, Incorporated, 1917), ii.

For “school hygienists,” the possibilities of medical interventions were near-endless. Between 1905 and 1910, for instance, health reformers became fixated on the significance of enlarged adenoids. Motivated by the belief that they caused an array of problems ranging from dulled intellect to deviance, this attention provoked a surge in adenoidectomies. ³⁶ Moreover, in an era marked by a commitment to professional expertise and eugenic thought, the pathologization of immigrant and African American children's poverty often led to heavy-handed state overreach, such as the forced administration of immunizations and other medical treatment. ³⁷ Some citizens applauded the boundless potential of school medical interventions. As one enthusiastic advocate put it in 1898, compulsory vaccination could be expanded to provide schoolchildren with oculists, dentists, food inspectors, clothing monitors, censors, and chiropodists to “make up for … the ignorance or carelessness” of their parents. “The functions could be indefinitely extended,” he concluded, “but the above will do for a beginning.” ³⁸ But for many other parents, the growing number of medical interventions in schools was fertile ground for breeding distrust and resistance to state power.

Police Powers and Resistance to Local School Vaccination

By the end of the Progressive Era, physicians and school nurses—often under the direct employ of the state—came to play a regular role in the lives of children at public schools. In sheer numerical terms, the combination of school vaccine requirements, compulsory medical exams, and school nurse programs represented an undeniable growth in the exercise of police powers by local and state governments at the turn of the century. This expansion of state power sparked daily conflicts in towns and cities throughout the country. The heavy-handed enforcement of school vaccine requirements and medical exams—of which immigrant, working-class, and African American communities bore the brunt—both confronted and fostered vaccine resistance, no doubt feeding into a broader suspicion of science. Most sustained anti-vaccination activism, however, was led by white middle-class men who wielded their rights as taxpayers to invoke Anglo American ideas of liberty and reject a theory of government in which the state could require them to vaccinate their children. In schools across the country, anti-vaccinationists fused fears of vaccination with critiques of the developing uses of police powers.

Many parents questioned the legal basis of school vaccination requirements, believing, as the Kentucky layman put it, that such mandates rested on a “false theory of government.” Indeed, much of the resistance to school vaccination laws were rooted in both a rejection of the “autocratic” authority of state boards of health and health commissioners—perceived to be foisting “regular” medicine on the population—and an assertion of respectable tax-paying citizens’ democratic rights over public education and their own children. School vaccination requirements generally pitted two sources of local authority and governance against each other: state boards of health—generally comprised of physicians appointed by the state governor—and a school system rooted in local control. ³⁹

The intense battle over school vaccination requirements in Utah at the turn of the century provides an instructive example of the role that anti-statist ideas played in local conflicts over vaccination more broadly. The smallpox epidemic and ensuing political controversy over compulsory vaccination hit Utah in 1899, when the state was in its infancy. Mormons had settled the territory in 1847, but condemnation of the church's practice of celestial marriage, or polygamy, became a sticking point in Utah's admission to statehood for over forty years. In 1890, the president of the Church of Latter-Day Saints officially disavowed the practice and Utah became the forty-fifth state to enter the Union in 1896. The long struggle for statehood meant Mormons were wont to view federal dictates, particularly about their family and their freedom, with suspicion and to zealously guard local democratic control in matters of faith and politics. While the Church of Latter-Day Saints officially approved of vaccination, Mormonism's emphasis on bodily purity, combined with a more widespread suspicion of elite orthodox medicine in the late nineteenth century, predisposed many in the community to reject the idea of vaccination. ⁴⁰

In 1899, three years into Utah's statehood, a smallpox epidemic erupted. Dr. Theodore Beatty, Utah's inaugural commissioner for health, found that his powers to address the epidemic provoked the first major political controversy to hit the state. As with most Western territories admitted to the Union in the late nineteenth century, the federal government mandated that Utah establish a free and compulsory public school system as a condition of statehood. ⁴¹ The state constitution, however, did not require a department of health, and the first proposal to create one in the state legislature failed because a majority favored local control. A bill establishing a state board of health eventually passed in 1898, and Governor Herbert Wells appointed Dr. Beatty, a non-Mormon who had completed medical training in his native Illinois, to assume the chairmanship of the board. ⁴² In early 1899, a proposed vaccination requirement for public schools surfaced as part of the appropriation bill for the newly adopted health department. But the legislature received a sea of petitions opposing the measure, and the public pressure excised the clause from the bill to secure its passage. ⁴³

When fifty new cases of smallpox were reported later that same year, Beatty decided to invoke his discretionary powers to issue a proclamation making vaccination a requirement for all schoolchildren in smallpox-infested districts. That Beatty had opted to enforce a measure that the legislature had declined earlier that year immediately raised the ire of much of the community. This included the State Board of Education, which had voted against a compulsory vaccination order. ⁴⁴ Seemingly to bring the conflict to a head, the Board of Health announced that in this instance, the growing public health emergency required an assertion of authority. Utah's attorney general agreed, determining that the State Board of Health had the power to direct local school boards to exclude any unvaccinated children from school and was “fully warranted” in doing so. ⁴⁵ On December 20, 1899, the Board of Health voted unanimously to adopt the compulsory vaccination order. It required teachers to send home all unvaccinated children and, as if goading the anti-vaccinationists, stated: “if the parents object, their only plan to object will be through recourse to the law.” ⁴⁶

The vaccine controversy erupted in the winter of 1899–1900 in Utah, and the man fanning the flames was Charles W. Penrose, editor of the Deseret Evening News, the official organ of the LDS Church, which he dedicated to drumming up outrage against the school vaccine law. Penrose's own belief in the patriarchal precepts of Mormonism, outright rejection of the science of vaccination, and commitment to Anglo American principles of liberty proved a potent cocktail in stoking resistance. Penrose was an experienced editor and faithful Mormon. Born in London in 1832 and raised as a Baptist in a well-off family, he converted to Mormonism at age eighteen and soon became a prolific writer and editor within the church, ultimately leaving his native England to settle in Utah with his wives. In his writings, Penrose explained that his attraction to Mormonism owed to the fact that it reinstated patriarchal government. In an 1888 essay, he warned that excessive individualism threatened social stability by eroding a man's patriarchal authority over his wife and children, declaring that the “importance of a return to the ancient patriarchal principles of family government cannot be overestimated.” ⁴⁷ Having imbibed anti-vaccination sentiment between the 1850s and 1870s in England, Penrose assumed editorship of the Deseret Evening News in 1898, right before the vaccine controversy erupted. ⁴⁸ The irony that compulsion was being contemplated in his adopted homeland, founded on a defense of Anglo American liberty against British tyranny, was not lost on Penrose. ⁴⁹

As the conflict over school vaccination requirements grew, it became clear that it was as much a conflict about the proper boundaries of state power as it was about vaccination. As the Deseret Evening News put it on January 8, 1900, the quarrel had arisen because “an administrative body filled with ‘despotic city would-be masters’ had circumvented democratic will. Instead, it had employed a ‘trick,’ using the law that required children to attend school to enforce vaccination by making vaccination a requirement of attendance.” ⁵⁰ Penrose's editorials reminded the public that one side of the “vaccination question cries out vehemently” against any act that would force “unwilling parents to put pus into the blood of their healthy offspring.” ⁵¹ Such visceral and emotional anti-science arguments were common among anti-vaccinationists well beyond Utah, but it is particularly revealing that the Deseret Evening News put so much emphasis on the apparent usurpation of patriarchal power. Penrose insisted that the conflict would best be resolved by leaving parents to exercise their own judgment and personal liberty “within their own family limits,” and keeping school boards and doctors within “the lines which define their official authority.” ⁵² And within LDS families, family authority was concentrated in the leadership of husbands and fathers.

In the deluge of letters that Penrose received and published that winter, he was no doubt pleased to receive one from a “parent and public school patron” who had vaccinated his children but nonetheless questioned the legitimacy of the order. If the legislature had refused to enact a law mandating vaccination, he asked, “Where does the power to enforce it come?” He went on, “Some say the ‘police power’ is the authority,” but explained that the legislature nonetheless had to confer the police powers upon the health board. ⁵³ This opinion joined a surge of letters assailing the “dangerous legislative invasion of personal liberty” of even considering a bill that required school vaccination. By 1900, when Beatty opted to enforce an order that the legislature had declined to adopt the year before, letter-writers were astounded by implication that a single bureaucrat possessed such power. ⁵⁴ The parent concluded his piece to the Deseret Evening News by invoking Shakespeare, urging the newspaper to continue its “agitation in favor of the right of the people and against the arrogance of the usurpation of a few petty public officials having a little brief authority.” ⁵⁵

The Deseret Evening News certainly did continue its agitation, inciting disgust at both the practice of vaccination itself and the gall of the Board of Health in stepping beyond the boundaries of its power. On December 20, 1899, the day the board voted to issue the order, the Deseret Evening News issued an incendiary call for collective action. One letter published warned the board “not to be too officious in this matter” that concerned the rights and liberties of American citizens, for there were “hosts of people” who “would stand with a shot-gun, as ready to use it upon a person attempting to put vile matter from a diseased bovine into their healthy children.” ⁵⁶ As the public school winter break drew to a close, the Deseret Evening News advised parents on how to defy the order while complying with the letter of the law: sending their children to school would follow the compulsory attendance law, even with the knowledge that they would be sent home if unvaccinated. Readers apparently took note. On January 26, 1900, twelve thousand schoolchildren in Utah were due to resume school but only four thousand of them presented “with the scars of vaccination entitling them to their seats.” ⁵⁷

Immediately after, on January 27, 1900, the newly formed Anti-Compulsory Vaccination League found legal success in District Court. The league's chairman John E. Cox, whom historian Michael Willrich has aptly described as a “bastion of white, male tax-paying respectability,” had brought a suit challenging the exclusion of his unvaccinated daughter Florence from the Hamilton School. ⁵⁸ The presiding Justice Cherry, who avowed he was a believer in vaccination, announced that the case nonetheless presented “purely a question of law.” On that question, he held that as merely an “administrative body,” the “Board of Health has assumed legislative authority which it does not possess.” The board had license to close public places to enforce quarantine, but the exclusion of unvaccinated children in concert with the compulsory education requirement was “in effect compulsory vaccination” and beyond the board's powers. ⁵⁹ The order was rescinded and as a result, schools were closed regularly to enforce quarantine as the epidemic continued.

The battle was far from over, however. It would take a full year for Utah's legal and political showdown over school vaccination to resolve. In April, the District Court's decision was overturned by the Utah Supreme Court, the majority finding that the legislature could delegate authority to local administrative bodies under the “large and comprehensive matter of the exercise of the police power for the preservation of public health.” ⁶⁰ Still, widespread civil disobedience persisted. With hundreds of new cases of smallpox contracted over the summer, the edict was put back in place when school recommenced in the fall. Defiantly, the president of the Latter-Day Saints College refused to exclude unvaccinated students and was subsequently arrested and fined. ⁶¹ When school resumed in January 1901, more than 60 percent of students were again kept home by their parents. ⁶² The Board of Education intervened, voting five-to-four to defy the Board of Health edict, and instructed teachers not to exclude unvaccinated students. In response, the Board of Health threatened another round of prosecutions. ⁶³

Finally, the Anti-Compulsory Vaccination League convinced Republican William McMillan to introduce a bill in the state legislature that prohibited any governing authority from excluding unvaccinated children from schools. More than two thousand petitions circulated in favor of the bill, demanding the legislature act to defend their “‘God given’ constitutional rights.” ⁶⁴ The swell of public opinion led the measure, known as the McMillan Law, to pass quickly with overwhelming support. Swamped with letters and petitions, Utah's governor Heber Manning Wells carefully weighed the matter, telegramming every state of the Union to ascertain their position before he decided to veto the bill. A lengthy letter to the legislature explaining his reasoning, singling out the state's special duty to the child, failed to sway the majority opinion. Later that month, the legislature overrode his veto. ⁶⁵ The McMillan Law remained on the books until 1933.

The McMillan Law represented the far end of anti-vaccination triumphs in the early twentieth century, but the controversy in Utah nonetheless captured many of the dynamics at play in cities, courts, and state legislatures across the country. Populist uprisings against school vaccination laws regularly erupted, frequently taking the form of boycotts or widespread acts of civil disobedience. In Montclair, New Jersey, three hundred fifty families successfully protested compulsory vaccination requirements by withdrawing their children from school and threatening to switch districts until the law was rescinded. ⁶⁶ Ultimately, seven states repealed compulsory vaccination statutes: Utah, California, Illinois, Minnesota, West Virginia, and Wisconsin. ⁶⁷ As in Utah, the rejection of public health requirements in schools rested on a rejection of the exercise the police powers over parental rights and often invoked gendered conceptions of individual liberty. As Wisconsin governor Robert La Follette declared in his 1903 veto of a compulsory vaccination school law, he was “unwilling to approve legislation to abridge the security of the person or the home without the presence of a greater [public health] emergency.” ⁶⁸

Anti-compulsory vaccination activists fared far better politically than legally. Numerous cases were filed in state courts contesting the constitutionality of school vaccine requirements tied to compulsory vaccination laws, and many courts did strike down such requirements, as in Utah, finding that health commissioners did not have the power to make such regulations. ⁶⁹ But, importantly, those cases generally affirmed that the legislature did have the authority to introduce vaccination requirements for schools. At best, state courts in Pennsylvania and New York declined to resolve the conflict, holding that both laws were valid and that parents who had refused to vaccinate their children had met the compulsory school requirement by attempting to send them—even if they were then excluded. ⁷⁰ In 1914, however, the New York State Court of Appeals snubbed out that legal gray zone, upholding Hagbard Ekerold's conviction for breaking the compulsory education law. The court found that a “parent could not escape his duties under the compulsory education law” by merely claiming to object to vaccination. ⁷¹ The Ekerold case became the leading precedent in other state decisions, and was ultimately upheld in 1922 by the US Supreme Court in Zucht v. King. ⁷²

Anti-vaccinationists had little luck in the courts precisely because the police powers did vest state legislatures, municipal health boards, and school boards with broad authority. Nonetheless, the exercise of those powers did much to foment resentment and opposition to state power. Indeed, while some large-scale attempts to build national anti-vaccination networks in the 1910s fell short, the anti-statist arguments that ricocheted across the country in local conflicts did more to color and frame the debate about federal power over public health. ⁷³

Seeding Reactions to Federal Authority

As local and state governments flexed their powers to promote vaccination via compulsory schooling and introduced compulsory medical examinations, corresponding health movements were afoot. These campaigns concerned the American Medical Association (AMA)—namely, consolidating its powers over medical licensing—and legislative efforts to establish a federal department of health. Turn-of-the-century America harbored deep divisions over the authority of “allopathic” (orthodox) medicine that was rapidly replacing more familiar homeopathic and folk remedies. The same uncertainty that led large swathes of the population to be suspicious of the science of vaccination was also reflected among the ranks of medical practitioners. In 1900, there were 28,300 drugless healers compared to 40,000 allopathic doctors in the United States. ⁷⁴

Since the 1890s, however, the AMA had made significant headway toward standardizing medical schools and tightening medical licensing procedures. In 1908, a damning report prepared for the Carnegie Foundation by Abraham Flexner on the “miserable standards” of medical schools helped the AMA cement its accreditation and licensing powers. ⁷⁵ Heeding Flexner's call to admit “fewer and better doctors” to the profession, the number of medical graduates dropped by 50 percent as medical schools began closing their doors. By 1912, only four homeopathic medical schools remained in operation. ⁷⁶ As the AMA consolidated its role as a professional gatekeeper, orthodox doctors also threw their weight behind federal measures to regulate the food and drug industry, which culminated in the establishment of the Federal Drug Administration in 1906.

Against this backdrop, efforts to create a federal department of health gained steam. In 1906, Irving Fischer, a political economist at Yale, who established the Committee of One Hundred at President Roosevelt's request, intended to demonstrate that there was sufficient public interest in a federal health agency. By 1909, Fischer had enlisted the support of business and agricultural leaders, conservationists and reformers, and some prominent politicians who viewed a federal department of health as a necessary means to streamline, coordinate, and extend public health initiatives in the United States. The Committee of One Hundred's preference—and especially Fischer's—was to launch a full-fledged department to oversee the regulation and inspection of food, drugs, and environmental hazards. It would also collect and disseminate information about human health in a manner akin to the Department of Agriculture's role with livestock. In April 1910, the Owen Bill to establish a federal health bureau was first introduced to Congress, named for its sponsor, Senator Robert Latham Owen of Oklahoma. ⁷⁷

Opposition to the Owen Bill quickly assembled, led by the National League for Medical Freedom (NLMF). The organization had formed in May 1910 specifically to lobby to sink the bill. It sounded the “alarm” to homeopaths, osteopaths, Christian Scientists, anti-vaccinationists, anti-vivisectionists, and other self-identifying “eclectics” and “irregulars” about the looming threat of “state medicine” that the bill portended. ⁷⁸ By January 1911, the NLMF had accomplished its goal; the Owen Bill was tabled. The speed at which the organization both formed and undercut political support for the Owen Bill stunned the bill's supporters, especially Fischer, and signaled the wide resonance of its position on state involvement in health. In the organization's view, the contemporaneous rollout of school vaccination policies, compulsory medical exams, consolidation of the AMA's powers, and the proposal for a federal health department was anything but a coincidence. These initiatives signaled the AMA's intention to use the “machine” of state power to further monopolize the medical industry and foist its theories on the public. As the NLMF noted in 1911, for example, all 6,253 doctors currently employed by the government were members of the AMA. ⁷⁹ The organization had amassed a motley membership linked by scientific dissent—one that would continue its anti-statist crusade for “medical liberty.”

Congressional hearings on the Owen Bill commenced in June 1911, with an NLMF delegation in attendance. Led by former governor of Massachusetts John Bates, the delegation flung a barrage of criticisms at the proposed federal department: it was unconstitutional, tyrannized the individual, abridged states’ rights, and typified the dangers of paternalism in government. “The more paternal care is exercised [by the government], the less capable the people are of taking care of themselves or their children,” one member testified. ⁸⁰ Simultaneously, the NLMF poured an alleged $25,000 into local newspaper advertisements throughout the country to turn public sentiment against the bill. ⁸¹ This multipronged attack was sufficient to stoke divisions among supporters of the bill, embolden opponents in Congress, and spook the undecided. As Fischer complained when the bill was shelved, before the NLMF “suddenly appeared on the horizon, our movement had encountered substantially no opposition.” ⁸² Indeed, the proposal for a federal department of health had enjoyed bipartisan support in the 1908 presidential election. Moreover, while Fischer had anticipated resistance on the grounds of states’ rights from the same block of predominantly Southern Democrats who had opposed the Pure Food and Drug Act in 1906, the rest of the NLMF's charges left his head spinning. ⁸³

Fischer struggled to make sense of the nature and tenor of allegations in the NLMF's scare campaign, especially the charges that a federal department of health would lead state agents to invade the home and mandate compulsory vaccination nationwide. The thrust of the campaign, Fischer summarized, was the claim any federal agency would endanger the liberty of the individual: “The ‘regular’ doctor would ‘imperil your freedom,’ says the quack; would brutally ‘invade the sanctity of your home,’ ‘you would have government by doctors’—‘regular’ doctors at that; you would have ‘State medicine.’” According to Fischer, these baseless attacks stemmed from the NLMF's “vivid but perverted imagination” and a conscious “garbling” of the US Constitution. ⁸⁴ The allegation that a federal department of health would lead to a national policy of compulsory vaccination and medical examinations for schoolchildren was not only patently false but utterly fanciful, he argued, because the Tenth Amendment expressly delegated the right to enforce vaccination to the states. Fischer concluded that the NLMF was merely a front for the patent medicine industry, funding a diversionary scare campaign. ⁸⁵

Viewed through the eyes of the NLMF, however, the linkages between local authorities’ public health initiatives in schools and the proposal for a federal bureau of health were strong, sinister, and urgent. According to the organization, “the movement” had begun quietly with school-based quarantine measures and medical inspections during epidemics, only to be followed by demands for compulsory vaccination. Soon after, municipal and state governments began entertaining proposals for state-salaried doctors and nurses to follow up in children's homes to ensure compliance with doctors’ orders. ⁸⁶ It was a political plot driven by the AMA, with “its final expression in the Owen Bill: its intent to establish medical control, through a department of health, which shall not be amenable even to the President.” ⁸⁷ In this way, the NLMF believed, the tentacles of state medicine started small but threatened to scale up to encircle the highest levels of government. Interestingly, supporters of a federal health department likewise recognized the connections between such Progressive local, state, and federal initiatives. ⁸⁸ But what they viewed as a cooperative and complementary relationship between distinct branches of government, the NLMF saw as a conspiracy deliberately designed to destroy the separation of powers and implement medical autocracy. Far from seeking to defend the sovereign rights of the states' over public health, the NLMF worried that a federal department of health would expand the police powers that states were already exerting over local health matters to a national level.

One reason for the NLMF's rapid success in countering the Owen Bill was that it built directly upon anti-statist arguments and local and state networks that had developed over the preceding decade in response to school vaccination requirements and medical examinations. Indeed, whatever role patent medicine funding might have played in enabling the NLMF to flood newspapers with lobbying messages, the content of those messages resonated with the very arguments about the dangers of centralizing state power that had already been circulating in local and state conflicts over public health. Between 1910 and 1916, the NLMF developed a base of affiliate branches in thirty-two states, recruiting parents and communities who had been politicized by local conflicts. The organization also enlisted over five hundred speakers who delivered mass lectures around the country, drawing a direct line between “autocratic” health measures at the local level and the threat of federal agents invading the home. ⁸⁹ For example, before a public assembly at Carnegie Hall in 1911, Robert Baker, a judge, gave a rousing address that made no distinction between local, state, and federal power in his call to resist “state medicine.” The movement afoot, he warned the crowd, sought to “substitute the state … for the home, to enthrone bureaucracy, and terrorism, and to destroy liberty.” ⁹⁰ Mass meetings for the NLMF in Nevada, Kansas, California, Illinois, and Oregon stirred local parents to action, establishing local chapters of the National Public School Productive Leagues. These leagues, which were particularly active on the West Coast, pushed for measures to prohibit compulsory vaccination in schools and organized boycotts of school medical exams throughout the 1910s, as the NLMF simultaneously lobbied Congress and thwarted several attempts to revive the proposal for a federal health bureau. ⁹¹

The NLMF's monthly national newsletter Medical Freedom spoke to the league's expansive agenda to resist state medicine at every level of government. Its pages were filled with attacks on the science of vaccination, warnings about the dangers of medical monopolies, polemics by Herbert Spencer and like-minded thinkers, and rousing calls for parents to defend their rights and homes against state medicine. While it was the proposal for a federal department of health that led opponents to establish the NLMF, its crusade for medical liberty pushed members and readers to zealously guard and defend their individual rights, especially over their children. The entire September 1912 issue of Medical Freedom, for example, was dedicated to encouraging parents to resist school medical inspections, seeking to awaken “thousands of earnest American citizens” to the creeping menace of state medicine—a “national issue” masked by local implementation. ⁹² As illustrated by the cartoons from Medical Freedom, this fervent defense of individual liberty required both resistance to local and state laws and the acknowledgment that federal power would similarly trample individual rights and dethrone the home of its patriarch (Images 3 and 4).

Image 3. Cartoon from Medical Freedom 4, no. 5 (January 1915): 73.

Image 4. Cover of Medical Freedom, 5, no. 9 (May 1916). The image depicts the “five pillars” of liberty supporting the United States government: personal freedom, freedom of speech, freedom of the press, inviolability of the home, and freedom from unwarranted search. In the second image, the last two pillars have crumbled.

Much like the layman from Kentucky, the NLMF traded in emotionally charged arguments that cast state medicine as a threat to liberty in highly gendered terms. Cartoons published in Medical Freedom (Images 3 and 5) consistently portrayed “the American citizen” as a white, respectable man—the rights-bearing individual whose paternal rights and liberty over his home marked the cornerstone of American freedom. To be sure, some women played a prominent role in the NLMF as well, and the language of “parental rights” was plastic enough to accommodate maternal claims. In an era in which women's rising political influence was intimately bound in claims of maternal authority and suffrage was still a predominantly white male right, moral tropes about maternal solicitude grounded calls for women to defend their parental rights over their children. Diana Belais, the new NLMF president and president of the New York Anti-Vivisection Society, used her platform to rouse women into action by appealing to their “moral force” as mothers. In her address before the NLMF's first annual conference, held in Chicago in November 1911, Belais warned that one of the tactics of “political doctors” was to exploit the fears of women by drumming up widespread panic about epidemics. Having frightened women into submission, doctors could then “invade the home with autocratic powers.” It behooved women to inure themselves against such fearmongering. As Belais informed the crowd, she was confident that women could rise to the occasion due to both the depths of their maternal love and the fact that, politically, women's hour had arrived. ⁹³

Image 5. Cover of Medical Freedom in February 1915 in which the “political doctor” dreams of the “average citizen” offering his daughter up first to the AMA medical inspection scheme ahead of workers, brides, and farmers.

In championing parental rights, the NLMF entreated women to defend their moral authority as mothers and men to defend their rights as citizens. Primarily, though, the organization presented itself as a guardian of American liberty and frequently adorned the cover of Medical Freedom with imagery to convey that message, such as a picture of the Liberty Bell with the byline, “Eternal vigilance is the price of liberty.” And the foundation and defining measure of liberty, the newsletter suggested, was the right of men to enjoy medical, religious, and political freedom—particularly over their children. To that end, on the fiftieth anniversary of the Gettysburg Address in 1913, the league appropriated Lincoln's famous words, promising to deliver the “new birth of freedom” for those who stood up against tyranny and oppression: “The citizen does not need an inspector to stand guard over him, his children and his home.” Indeed, the editorial urged the citizen to “jealously guard the rights given to him”—specifically, the right to have his home respected as a “castle” under his rule. ⁹⁴

Finally, the NLMF warned that state medical exams for children were just the “opening wedge” for state medicine. Political doctors were targeting children, who were too young to have the capacity to understand or consent, and people had blithely accepted this state intervention because it was painted as a preventative measure for the betterment of the race. However, when the AMA allegedly unveiled its grand plan for universal medical exams at the association's annual meeting in July 1914, the NLMF reported that the national media was finally taking note of the inherent threat. At last, the newsletter proclaimed, the mainstream press had begun to recognize “the verity of what Medical Freedom has been saying for three years—that the home, the foundation of Republican government, is being invaded and menaced by this subtle campaign of medical high priests” (Image 5). ⁹⁵ Yet even if allegations about a sinister AMA plot were somewhat farfetched, there was a grain of truth in the NLMF's claim that public health reformers sought expansive and national health initiatives based on the powers that states already possessed over children. In 1915, for example, when New York became the first state in the nation to debate the adoption of health insurance, advocates invoked school medical exams and vaccination requirements to argue that health insurance was a justified and necessary expansion of the state's compulsory powers. ⁹⁶

Conclusion

In 1916, the NLMF disbanded. The organization had once again helped defeat a new iteration of the Owen Bill and leadership was confident that the proposed federal department of health was dead in the water. NLMF president Belais felt, however, that the league had achieved much more than simply preventing the establishment of a federal health bureau. The NLMF, she opined, deserved a “prominent place” in the history books as a “movement in line with the struggles for liberty which have played such an active part in the history of the US.” While Belais's hope would not come to pass and the NLMF has been largely forgotten, the league's defeat of the Owen Bill stands out—alongside the populist revolt in Utah that generated the McMillan Bill—as one of the few political victories for anti-vaccination and alternative health activists during this period.

By the end of the Progressive Era, school vaccination requirements, compulsory medical exams, and attendant school nurse programs were etched into the legal architecture of nearly every major town and American state, even if local communities disregarded them. Anti-vaccinationists were largely unable to overturn these laws because as John Fabian Witt has recently shown, despite the persistent “libertarian thread” in reaction to public health, courts have rarely interfered with this basic exercise of the police powers. ⁹⁷ On the local level, Public School Protective Leagues on the West Coast, offshoots of the NLMF, were also unsuccessful in pursuing citizens’ initiatives to ban vaccination requirements for schools in the 1920s.

More broadly, however, the campaigns waged against school vaccination laws and compulsory medical exams, and subsequent campaigns against the Owen Bill, contributed significantly to the germination of anti-statist discourse. The impact of anti-vaccination politics in schools should not only be measured in immediate legislative gains and legal victories. ⁹⁸ Indeed, as Michael Willrich and Robert Johnston have pointed out, anti-vaccinationist critiques of the court's role in approving the state's compulsory powers over vaccination proved prescient in anticipating the US Supreme Court's decision in Buck v. Bell (1927), which used the precedent of compulsory vaccination to legalize compulsory sterilization. ⁹⁹ By directly confronting the state over the governance of their children's lives and bodies, anti-vaccinationists and alternative health practitioners fashioned a distinct politics to articulate their grievances with the police powers. Public schools emerged as critical sites for the development of anti-statist networks and an anti-statist ideology that spoke the language of parental rights. These local campaigns significantly informed the conflict over federal power as well.

The prominent role of gendered ideas about liberty and parental rights in alternative health politics provides a window into the ways in which anti-statist ideology evolved in the Progressive Era. In resisting new forms of state power, anti-vaccinationists turned to old tropes about liberty, individual rights, and the dangers of centralizing power, but in the process vested them with new meanings. Specifically, challenges to exercising the state's paternal powers over children in public health reveal that what had once been an unstated assumption that structured the republic—that the “rights-bearing citizen” was an independent white man who governed his dependents—became a core principle of an emerging anti-statist ideology opposed to the liberal interventionist state. This gendered formulation of liberty not only gelled with the conception of “individual rights” that laissez-faire ideologues famously touted in the Progressive Era, but also presaged the anti-feminist and anti-regulatory political discourse of the 1920s. Indeed, conflicts over school health policies in the Progressive Era point to a long history in the twentieth century in which anti-statist critiques of state and federal power would first take root in local battles over children and public schools. ¹⁰⁰