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PANDEMIC FLU SHOTS:
WHAT ARE YOUR RIGHTS?
by Alan Phillips, J.D.
October 2009

Disclaimer: For educational purposes only; not intended to be legal advice.

     This document explains 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 a declared emergency pandemic. Rights during a declared emergency can vary dramatically from those 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. Outside of a declared emergency, making a fully informed decision requires an understanding how the many different components of the law interact to form the boundaries of your rights in your specific circumstances. Two of the best sources for this information 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--during a declared emergency?

2) Lines of Authority: What governmental entities have what degree of authority to require and enforce immunization mandates, under what conditions?

3) Consequences: What are the potential consequences for refusing mandatory immunizations in emergency situations? and

4) What Can I Do?: If I feel that my rights are too limited, what can I do about it?

Taking these each in turn: 

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 that we have 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, the Jacobson case has been cited in more recent cases and is arguably valid today, and will remain so 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. Under Jacobson, states have the Constitutional right to require immunization of everyone during an outbreak except those who are physically unfit subjects for vaccination. States may lack authority to physically force a vaccination on anyone against their will (but see Deputies Hold Boy Who Fled Flu Shot, where a WV student was forcibly vaccinated with the swine flu vaccine, 11-11-09), but penalties may apply to any who refuse mandatory vaccines, including fines, quarantine and/or imprisonment, depending on individual state laws. 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. During an emergency, states may be able to exercise greater authority (discussed below). A state's right to require immunizations during an outbreak may apply to any declared emergency situation, such as a flu pandemic 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. This means that  for those who want the right to refuse emergency vaccines in states where that is not an option, action aimed at enacting changes in policy and law are in order.

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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 spread, or risk of spread, of infectious disease internationally. Contrary to some Internet hype, the WHO does not have authority to mandate vaccines for the world's population, but as a practical matter, it may exert strong influence over individual nations' laws and policy, much as the U.S. federal government influences state laws through the CDC and ACIP recommendations (federal agencies) despite lacking authority under the Constitution to mandate vaccines for state residents directly.

     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 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 emergency laws 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 government 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, and exactly when it is safe to release isolated or quarantined individuals; and those who resist could face penalties.

     There are at least two factors that could cloud the above-stated 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 of 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 a level with 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 Universal Declaration of Human Rights, and Geneva Convention as support for the right to refuse immunizations and to self-quarantine. However, while such documents may provide powerful arguments about what the law should be, they establish current law only to the extent that their language has been incorporated into state or federal laws. 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 either take a vaccine or hop on the bus to the local quarantine facility, no argument about your rights, the Nuremberg Code, or any other document will matter. That official's job is to enforce orders, and you would have no authority to prevent them from carrying out those orders. As for those who say that they have a Constitutional right to refuse vaccines, our Constitutional rights are defined to the extent that specific disputes under the Constitution have been resolved by a court with jurisdiction over you. If there's no legal precedent saying that mandating emergency vaccines is unconstitutional, then it is, if regrettably, Constitutional.

     The ability of health authorities to force vaccines or quarantine on us comes from the applicable statutes and regulations, and that is what authorities 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 officials 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 government quarantine facility. The state does not have to justify the law to you before enforcing it; it is you that would have to justify your objection to that enforcement, successfully in court, before the state would be obliged to honor your wishes and refrain from enforcing 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 both a practical and legal matter, is what steps to take to place greater limits on the state’s authority to suspend rights in this particular context.

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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. The state law links on the Vaccine Rights website is a good starting place.

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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. Regarding 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 limit that authority. This will ultimately require changing the laws that give them their authority--or, over the short term, taking steps to implement policy that prevents the unacceptable exercise of the authority currently available. Specifically, we need to demand the right to refuse mandatory immunizations, to self-quarantine at home, and to be free from forced treatments and other possible violative acts. See the Model Self-Shielding Protection Act for a concise yet thorough outline of emergency rights issues. 

     Many people believe that resistance, filing lawsuits, and involving local sheriffs can enable them to avoid mandatory swine flu shots. Respectfully, these are flawed strategies. See Pandemic Flu Wild Goose Chases for an explanation of why these probably won't or even can't work, and how some may even be counterproductive to a pro-vaccine-choice agenda.


[1] One exception may concern how to exercise a philosophical exemption, where applicable. However, there are good reasons to consider a religious exemption even where philosophical exemptions are available. This concerns the powerful First Amendment, Constitutional rights that attach to religious exemptions that philosophical exemptions do not have, and the portability of religious exemption rights.
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Alan Phillips, Attorney at Lawattorney@vaccinerights.com, 828-565-2622
 
© January 2010