Your Rights
Pandemic Flu Shots – What Are Your Rights?
by Alan Phillips, J.D. and the Legal Group at PandemicFluOnline.com
This document addresses the boundaries of your right to refuse H1N1 (pandemic swine flu) shots in the United States, should they be mandated in the near future in the context of a declared emergency pandemic. Rights can vary dramatically in this context from those associated with routine immunizations.
There really aren’t many short-answer questions about vaccine exemption rights.[1] Your rights, and the appropriate actions to take, depend on the specific facts in your situation. For non-emergency situations, there is a body of information to digest in order to be able to assess your rights and how best to assert them, just as there is with the larger question of whether or not to vaccinate or delay vaccinations with regard to the risk of adverse events from the vaccines. The best sources for that are a knowledgeable attorney and The Authoritative Guide to Vaccine Legal Exemptions.
There are three fundamental questions concerning your right to legally refuse emergency pandemic vaccines:
1) Personal Rights: Where is the boundary between the government’s right to impose vaccinations for the presumed benefit of society and your right as an individual to refuse them?
2) Lines of Authority: What governmental entities have authority to require immunizations and enforce immunization mandates, under what conditions?
3) Consequences: What are the potential consequences for refusing immunizations in emergency situations? and
4) What Can I Do About All of This?
Taking these each in turn:
1. Personal Rights
In the 1905 U.S. Supreme Court case Jacobson v. Mass., the Court ruled that a Massachusetts law requiring everyone in the community to be vaccinated during a local small pox outbreak was a valid health law in exercise of the state’s police powers. Therefore, Mr. Jacobson had to be immunized despite having had a severe adverse reaction to the vaccine as a child, and despite theories contrary to the mainstream beliefs of doctors and the general public about the necessity and effectiveness of the small pox vaccine. The Court’s written opinion suggested a Constitutional right to refuse vaccines if a medical doctor so advises due to a present risk or severe illness or death from the vaccine, which is probably why all state and federal laws requiring vaccination in the U.S. now provide medical exceptions (unfortunately, Jacobson didn’t argue that position). Despite being over 100 years old, Jacobson has been cited in recent vaccine exemption cases and arguably remains valid today, until such time that it is overturned by a future U.S. Supreme Court case.
All non-medical exemptions in the U.S. are ultimately provided conditionally. That is, states have the right to require immunization of everyone, legally exempt or not, during an outbreak, other than those who are physically unfit subjects for vaccination. States may lack authority to physically force a vaccine on anyone against their will, but penalties could apply to any who refuse mandatory vaccines, including fines and/or imprisonment, as any given state’s laws may provide. Outside of a declared emergency, states often require exempt students to stay home from school during a local outbreak for the duration of the incubation period, or to be immunized if the student wishes to return sooner. A state’s right to require immunizations during an outbreak may apply to any declared emergency situation, such as a pandemic flu, or an actual or threatened bioterrorist attack. So, should flu shots be mandated within the context of a declared emergency, present religious and philosophical exemptions may not apply.
2. Lines of Authority
There are four different levels of authority that may be involved in various pandemic flu situations, including the administering of mandatory immunizations and implementation of isolation and quarantine measures, should health authorities deem these to be necessary. First, the World Health Organization (WHO) has authority under the International Health Regulations (2005) (IHR) to address matters concerning the risk or spread of spread of infectious disease internationally. Contrary to some Internet hype, the WHO does not have authority to address matters concerning the internal affairs of individual countries–that is, the WHO cannot mandate vaccines for the world’s population–but it may exert strong influence over individual nations’ laws and policy, much as the U.S. federal government is not able to require immunizations of state residents (as it lacks authority under the Constitution); but its agencies, chiefly the CDC and ACIP, make recommendations that are generally enacted into law by individual state legislatures.
Next, the federal government has authority over matters concerning the risk or spread of disease among the states and territories, and coming into the country from other countries; and over matters concerning U.S. airspace. So it probably cannot mandate emergency vaccinations for state residents directly. The U.S. Department of Health and Human Services (HHS) or President could declare a national state of emergency and recommend that states mandate shots accordingly, but it would ultimately be up to individual states to make their own assessments for their residents and to issue their own individual mandates, or not, accordingly.
States have the primary authority to determine how to manage emergency infectious disease concerns within their borders. Predictably, laws vary from state to state. The Model State Emergency Health Powers Act (MSEHPA), written for the CDC shortly after 9-11, sets out proposed state laws that would establish lines of authority and procedures for states to respond to emergency infectious disease situations and bioterrorist events. Individual states have enacted different parts or versions of this Model Act, so it is important to review your state’s laws (See below) to understand the contingencies you may need to be prepared for. For example, the MSEHPA would have states grant themselves authority to require immunizations and treatment of all citizens, as health authorities may deem necessary, with exceptions only for those persons likely to experience a serious adverse reaction to the immunization or treatment–in other words, no philosophical or religious exemptions. It also proposes isolation of infected persons, and quarantine of persons who refuse vaccines for philosophical or religious reasons (along with those who are medically unfit subjects for immunizations)–potentially in a state quarantine facility. The Model Act would have states require that state officials use the least restrictive measures necessary, and to release individuals from isolation and quarantine at the soonest possible time. But it would be up to state health authorities to determine just what is the least restrictive measure necessary under the circumstances, or exactly when it is safe to release isolated or quarantined individuals; and those who resist could face penalties (discussed below).
There are at least two factors that could cloud the authoritative boundaries. First, there are situations where two or more levels may have separate, concurrent jurisdiction. For example, as described on a CDC web page, an incident at an international airport could involve all four levels simultaneously–local, state, federal and international. Presumably, each level would be primarily concerned with matters pertaining to its inherent jurisdictional authority as described above. However, the CDC also states that any individual level or authority may, in the exercise of its police powers, request the assistance of other levels. So, it is possible that even when lines of jurisdiction would otherwise prevent involvement of a particular level of authority, that level could nevertheless be involved if invited by another level of authority that does has jurisdiction. So, it is difficult to say what authorities may be involved, or in what capacity and where, during a declared emergency pandemic. These are unprecedented times; many unknowns may just have to be observed or explored as actual situations play out.
Many people point to documents such as the Nuremberg Code, Declaration of Helsinki, UN Declaration of Human Rights, Geneva Convention, etc. as supporting a right to refuse immunizations and/or a right to self-quarantine. However, while such documents may provide powerful arguments about what the law should be, they do not define or determine what the law actually is, presently. This is a key distinction. In the hypothetical event that a mandate for vaccines comes down and a health authority is at your door insisting that you accept a vaccine or accompany them to a quarantine facility, no argument about your “rights” or supporting documents will prevent that official from doing their job—they have their orders, and you would have no authority to prevent them from carrying out those orders. The ability of health authorities to force vaccines or quarantine on us comes from the applicable statutes and regulations, and that is what they have to go by. The place for the arguments against present authority is with the legislatures and agencies that enacted the laws granting present authority, and not with the government officials tasked with enforcing that authority at the time of the enforcement. If you wished to challenge government action once it occurred, you could file a lawsuit (but see comments below about the downside of this approach), but you might very well be pursuing that suit from the comfort of a local quarantine facility. The state does not have to justify its actions to you before enforcing the law; it is you that would have to justify your objection to that enforcement in court—successfully—before the state would be obligated to honor your wishes and refrain from carrying out the law.
Finally, it is critical to understand that governments have, and must necessarily have, some authority to temporarily suspend rights during emergency situations. For example, most would agree that a state social worker should be able to remove an abused child from a home and schedule a near-future emergency hearing for the parents afterwards, rather than give the parents notice of a hearing without first removing the child, and risk the child suffering further abuse and the parents skipping town before the hearing. With emergency infectious disease situations, states may temporarily suspend due process rights under the theory that this is required for the protection of the community–that is, states have authority to quarantine non-immunized persons first and deal with their objections later, under the theory that the safety of the community is more important than a brief, temporary loss of due process rights. Whether or not we disagree with that, and why, is immaterial at the time of enforcement. What we are dealing with, then, as a practical and legal matter, is whether or not to take steps to place greater limits on the state’s authority to suspend rights in this particular context, and not with removing the state’s authority to suspend rights temporarily during emergencies generally or absolutely. Furthermore, efforts aimed at making limited changes to current law may be much more likely to be successful than attempting to make substantial changes or to remove the state’s emergency authority altogether.
3. Consequences
It is unlikely that anyone refusing a vaccine would ever be strapped down against their will and injected with one. However, the Model Act would have states empower themselves to quarantine those who refuse emergency mandatory vaccinations, and impose misdemeanor sanctions on those who refuse to follow the orders of local or state health authorities, which could mean fines and/or imprisonment. Moreover, quarantined persons may not have the option of choosing the quarantine location–they may not be allowed to stay at home if health authorities deem it necessary to place them in a quarantine facility. Again, individual state laws vary, so it’s critical to read your state’s laws to determine the extent of your state’s authority
4. What Can I Do?
If flu vaccines are voluntary, you may be able to simply say “no thank you”; or, if mandated outside of a declared emergency context, standard vaccine exemptions may apply, and you should seek out reliable information about your rights accordingly so that you can make fully informed exemption decisions. Regarding governmental authority in emergency situations—ultimately, if we don’t like the authority that our governments have and wish to prevent the full exercise of that authority, we must take steps to change the law to limit that authority—proactively, and in advance of any actual mandate or emergency situation if possible. If there is not time to do that, the next best thing may be to take steps to effect a change in policy that would weigh against local authorities exercising their full authority.
Concerns include not only possible mandatory vaccines, isolation and quarantine, but also assessments, tests, treatments, entry by health officials onto private property, and other matters. All of these should, ideally, be addressed with a plan of action that has a clear, short-term agenda consistent with the longer term goal of changing policy and law. Since multiple levels of authority are involved, we should seek to change laws at different levels, focusing primarily on state and federal levels. Education is key. The website www.pandemicfluonline.com has been formed to develop and provide the tools necessary to support local and national initiatives. This site is being updated continually to better serve your needs, so visit it frequently. Find a local group to work with, or start your own.
About court proceedings: Many have suggested that we should file injunctions, criminal charges, fraud charges, etc. against vaccine manufacturers and health authorities to challenge authority under current laws and as a means of undermining authorities’ ability to require vaccines, and enforce isolation and quarantine in state facilities. For the reasons below, we advocate pursuing educational and legislative efforts instead:
- Under Jacobson, courts can’t second guess the state legislature’s assessment as to the scientific appropriateness of vaccines. So, civil claims whose basis would constitute a challenge to the science underlying the state’s authority to mandate vaccines, etc., would be subject to dismissal on a technicality, for falling outside of the court’s jurisdiction. The proper place to challenge the state’s laws may be state and federal legislatures, and not the courts.
- Lawsuits generally end with one side winning and the other side losing (and, as noted above, losing can be due to technicalities, regardless of the ultimate truth of the matter). Once tried, a matter generally can’t be retried. So, if the suit fails for any reason, the underlying claims may be decided permanently. Proposed legislation, on the other hand, can be submitted repeatedly until passed.
- Lawsuits can be tied up in the courts for months or years, especially when appeals are involved, and they can be enormously expensive. Suits challenging medical policy and science may require numerous expert witnesses. Not only are anti-vaccine experts hard to come by and likely expensive as witnesses, they would be up against a majority of conventional medical authorities who, legally and practically, have the upper hand. To say that such suits would be an uphill battle may be an enormous understatement.
- Government entities have a high level of immunity from suit. So, when suing a government agency, that technical hurdle must be overcome. Due to this, it can be very difficult to successfully sue the government, regardless of the merits of the case.
- If a state’s assessment of the necessity of vaccines is based on fraudulent information, there might be a legitimate basis for challenging that assessment. However, the above limitations may still apply, making it a far more constructive use of one’s time, money and energy to pursue changes in policy and law rather than satisfaction in court.
- For those who choose to pursue a lawsuit as a means of addressing any of these issues, it is highly recommended that you do so with a knowledgeable attorney, so as to have the best chance of successfully navigating our complex legal system.
TIPS: HOW TO FIND YOUR STATE’S LAWS
Most states have a website that enables public searching of state statutes and regulations (remember–it’s important to search both!). Keep in mind that these are usually not fully up to date, so recent changes in the law may not be reflected. You would probably have to utilize one of the many pay services designed for attorneys to ensure having up to date information. Use the search terms ‘immunization’ (or try ‘vaccination’ or ‘vaccine’ if this doesn’t work), ‘isolation’ and ‘quarantine’—that should bring up laws addressing emergency situations. Some states have adopted the Model Act’s name, using phrase “Emergency Health Powers Act” or similar language, but not all states have done this. So, using that phrase may not work. Your search may also bring up other laws such as quarantine of animals, goods, etc., but once you start skimming the laws your search brings up, it shouldn’t take long to find the ones that address the emergency health matters of concern to you.
Vaccine Rights Attorneys: http://www.vaccinerights.webs.com/resources.html#attorneys
Vaccine Injury Attorneys: See http://www.nvic.org/, or do an Internet search for ‘vaccine injury attorney’.
[1] With the possible exception of how to exercise a philosophical exemption where applicable. However, there are good reasons to consider a religious exemption even where philosophical exemptions are available. A full explanation is beyond the scope of a footnote, but it concerns the powerful First Amendment, Constitutional rights that attach to religious exemptions that philosophical exemptions do not have.
