MANDATORY VACCINATION IS AN ASSAULT ON INDIVIDUAL LIBERTY
Attorney Jonathan Emord
October 12, 2009
Public health services nationwide and the Secretary of HHS are sounding the alarm that the H1N1 virus (swine flu) may kill many Americans and infect tens of thousands of others. Many scientists who study the H1N1 virus believe the authorities have exaggerated the extent of infection and risk associated with it. Underlying this entire debate is the stark reality that federal and state officials are gearing up to compel Americans to be vaccinated. That compulsion is part of an historic assault on liberty, where the state demands that healthy people be injected with foreign substances that may cause (and indeed have caused) severe side effects.
The National Vaccine Information Center (NVIC.org) monitors adverse events associated with vaccinations as does the Food and Drug Administration. Among the ill effects caused by vaccines are contraction of the disease for which vaccination is administered, learning disorders, seizures, mental retardation, inflammatory bowel disease, autoimmune disorders, and even death.
Every state mandates that children be injected with a whole host of vaccines before they enter kindergarten (for diphtheria, tetanus, and acellular pertussis (DTap); polio; measles; mumps; rubella; varicella (chickenpox); conjugate pneumococcus (PCV); hepatitis B; rotavirus; haemophilus influenzae type b (Hib); measles, mumps, rubella (MMR); hepatitis A; and meningococcal (MCVt), not to mention a host of new vaccines required in certain states, including one for the human papilloma virus (Gardasil)). Parents who dissent from the requirement that their children be injected meet with disfavor not only from their pediatricians but also from the authorities who may even construe the refusal to vaccinate as evidence of child abuse or neglect. An allegedly abusive or neglectful parent can lose custody of a child, at least temporarily, to permit the state to vaccinate them forcibly.
Under federal laws adopted post 9/11, the Secretary of HHS can declare a national emergency and order all citizens to be vaccinated. These extreme powers can permit agents of the federal government to enter private residences to compel those inside to receive vaccinations.
Let there be no mistake mandatory vaccination is an assault on individual liberty. It offends the core definition of liberty that underlies our Constitution for a person, against his or her will, to be forcibly injected with a foreign substance. Sadly neither the federal nor the state governments provide any meaningful protection against mandatory vaccination. Instead, it is the rule of law everywhere in this country that everyone be vaccinated, thus subjecting the vast majority to a bodily intrusion that can have severe side effects for the sake of a minority who are or will become ill. The few exemptions that apply under state law (for religious, medical, and—in certain states—conscientious objections) are increasingly construed narrowly, making it more difficult for parents to escape the demands of public health authorities.
Properly understood, liberty is an inalienable right that may not be deprived of those who have not transgressed against the equal rights of others. Our Declaration of Independence reminds us that just governments are instituted among men to protect the rights of the governed, including the right of liberty. Our Bill of Rights protects liberty against the federal and state governments in the Fifth and Fourteenth Amendments. In his April 4, 1819 letter to Isaac H. Tiffany, Thomas Jefferson perhaps best defined “rightful liberty” as the “unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the right of an individual." Since Justice Harlan’s 1905 decision Jacobson v. Massachusetts, 197 US 11, the courts have consistently refused to protect individual liberty to the extent our founding fathers intended.
In the case of mandatory vaccination, our Supreme Court has given local authorities considerable leeway, effectively reversing the burden of proof that ordinarily applies to any invasion of liberty. Ordinarily, when the government seeks to deprive an individual of liberty, it may do so only upon the state meeting a very heavy burden of proof (the establishment of a compelling state interest and means narrowly and precisely chosen to effect the end). In the case of vaccination, however, the government need only show a reasonable relation between the means (administration of a vaccine) and the end (reducing the risk of disease). It does not need to show, for example, that less intrusive means were not available or adequate to meet the crisis.
The solution to this problem lies in restoring our Constitution of Liberty to its ascendancy over laws that would sacrifice liberty for the convenience of the state. Consistent with “rightful liberty,” there should be a presumption in favor of each individual’s right not to be vaccinated and there should be a requirement that no vaccination occur without fully informed consent (informing the patient of the known risks and side effects along with the potential benefits). If a person refuses to be vaccinated and the state perceives a threat to public health, it should have to resort to means that do not require invasion of the person. For example, ordinarily state law requiring those who become ill to wear face masks and avoid contact with others would suffice. If the threat involves sexual transmission of disease, prohibiting the ill from engaging in unprotected sex would suffice. If the threat ultimately involves a disease that can be transmitted from the surface of the skin or from exhalation, then the state may require quarantining of infected individuals. If people may be unwitting carriers, the state can require that all wear masks in public and avoid contact outside of family members. Those measures would likely be more effective in arresting the spread of disease than many of the unproven vaccines and would protect the individual’s right to personal autonomy and liberty against the state’s amorphous interest in protecting the public health.
Finally, recognize that vaccination is one of the most extreme examples of prior restraint in the law. Vaccination is not limited to the ill; indeed, it aims to arrest disease by compelling the vast majority of well people to undergo inoculation. In that way, it attacks the innocent and makes them bear the burden of those who are ill, compelling them to tolerate the risk of foreign agents injected into them as a way of reducing overall risk of disease. Most vaccines lack adequate evidence of efficacy. The flu vaccine is notoriously debated among scientists because all too often it either does not work (affects the wrong strain) or, if presumed to work by lessening the severity of the disease, does not prevent contraction of the disease.
The old fashioned remedy of hand washing, hand sanitization, and avoiding contact with others and with surfaces touched by others remains the best defense against influenza. We would do well to invent a new vaccine against violation of liberty by the state, one that can be raised against the threatened onslaught of federal and state officials who believe they know better than you do how best to raise your children and care for your health needs. There may be no greater threat to personal liberty than this.
� 2009 Jonathan W. Emord - All Rights Reserved