Is mandatory COVID-19 vaccination legal? Know your right to informed consent

This blogpost is neither pro nor anti vaccination, and it intends to encourage individuals to be aware of their freedom of choice and their right to informed consent in deciding what is best for them in terms of their health, and not to succumb to mere executive fiats in fear of potential penalties and possible social isolation in the future. Further, it also reflects on the existing judicial precedents on mandatory vaccination, and looks at possible legal grounds to dispute the legality of  such a vaccine mandate.

With governments and private institutions across some parts of the globe pushing for vaccine mandates, our right of choice over the vaccination process are soon likely to be taken out of our hands. For the past few weeks we've been getting a flurry of news about the government's intention to bring in a vaccine mandate requiring adults over the age of 30 to carry a vaccination card, commencing from September 15th. Then the question arises whether covid-19 vaccines should be made mandatory across the board requiring everyone to get vaccinated. The debate on mandatory vaccination is becoming increasingly polarized as more explosive deadly variants of  sars-cov-2 virus are emerging and wrecking havoc in the country. This division of opinions has gone to the extent where we see a  big split being made among family, friends, co-workers and public-at large over the issue of mandatory vaccination.  

The legality of vaccine mandates has not often been tested by courts,  and it remains a legal grayzone even at the global level. It's no surprising at all to find no judicial precedent set by our superior courts. 

Are vaccine mandates constitutional?

Jacobson v Massachusetts  is a classic authority for the mandate given to states to use their police powers to enforce vaccines mandates. It held that under the pressure of great dangers the individual liberties are not absolute and they are subject to reasonable exercise of police powers. It further held that vaccine mandates are not arbitrary or oppressive.  Authorized by State statute Massachusetts law  required compulsory vaccination of adults over 21 years of age and imposed a penalty of $5 as fine for those who refuse the vaccine. A pastor who had experienced a bad reaction to a vaccine in his childhood refused to take the small pox vaccine argument that he had a hereditary condition which reacts dangerously to the vaccine. He was prosecuted and he argued that prosecution for refusing to get vaccinated was a violation of individual freedoms and the statute itself was unreasonable and oppressive. 

The  decision in Jacobson was later affirmed in Zucht v King which held refusal to admission to school of a child who had not met a required vaccination was not illegal. It has also been recently considered as a precedent in justifying mandatory face-mask orders during the covid-19 pandemic. 

But should we continue to follow the decision in Jacobson as a precedent in the 21st century? 

It's timely for the legal fraternity to call for reconsideration of the ratio decidendi in Jacobson case and make it an opportunity to make black and white the existing legal grayzone with regard to the constitutionality of mandatory vaccination. The case against vaccine mandates starts with the question that in modern times, are we in a position to place our trust and confidence in the big pharmaceutical companies which are solely profit-motivated despite being regulated and supervised? As we all know simply, morality is not even a concern in profit-making ventures. Ever since the race started to make a vaccine for the sars-cov-2 virus, every time a new deadly variant is discovered, all what we hear is that these scientists working with these pharma companies making statements that their vaccines are still efficient and the new variants not resistant to the vaccines. The 2005 Public Readiness and Emergency Preparedness Act in the US has conferred Moderna and Pfizer companies with blanket immunity till 2024 so that those companies cannot be sued for any side effects of vaccines they produce. Such companies can be sued only for willful misconduct on their part. As to date, the quickest vaccine to be made in the history was the mumps vaccine'; that was within four and half years. Then it's no wonder why most of us do not trust covid-19 vaccines which were developed within a shorter time span of just eight months. In view of the above concerns about the safety of the vaccines, the blanket immunity the pharma companies enjoy, the development by courts of rights-based approach to fundamental freedoms of individuals over the century, the increasing mistrust towards the motives of the big multinational companies, a reconsideration of the precedent set by Jacobson case in the 19th century is warranted in these circumstances. 

Can vaccinated people claim that their rights are being violated by unvaccinated people by forgoing the vaccine? 

Clearly the answer is no; though vaccinated people claim that the unvaccinated minority deliberately endanger their lives by forgoing the vaccine, it does not so, for the reason that vaccinated people can be super spreaders just as the unvaccinated. Even a vaccinated individual's lack of regard for nd incompliance with social distancing and wearing of masks can result in spreading the virus to many others resulting in many fatalities. Therefore there is no substance in such allegation made by the vaccinated. 

How can we successfully dispute the legality of mandatory vaccination cards in courts? What are the possible legal grounds?

1) Procedural missteps

The ground of procedural missteps is one way to challenge the illegality of a vaccine mandate. Generally speaking, unless a legislative enactment mandating vaccines is passed by the parliament, vaccination remains a personal choice. Although arm twisting of the public to a reasonable extent to convince people to get vaccinated is justifiable in the interests of public health, it cannot be legally achieved by mere executive orders which does not have the same legal force as in a piece of legislation. 

2) Test of reasonability

Even where a piece of legislation is enacted,  if the state cannot establish on a preponderance of evidence that the intended curtailment of individual freedoms through a vaccine mandate are proportionate, reasonable and justifiable measures in terms of controlling the pandemic, such legislation is bound to contravene the constitutionally guaranteed freedoms. Basically, the term 'freedom' denotes presence of choice and absence of coercion or force. As such, as long as the element of coercion or force is present in a vaccine mandate requiring everyone to get vaccinated, such mandate renders itself unlawful, unless State justifies such a drastic measure as being proportionate or reasonable. Moreover the equality before the law and the right to equal protection of the law as enshrined under Article 12 of the Constitution, require not to favor a section of citizens over the others. All persons are equal in the eyes of law and cannot be discriminated on the basis of age, sex, political opinion or any such other ground. As such legislation requiring compulsory vaccination cannot confer some privileges or benefits to vaccinated individuals while denying the same to the unvaccinated, by blocking out the unvaccinated from access to public places. It would be a clear contravention of the Article 12. Furthermore such legislation would be regarded as a class legislation, for the reason that a vaccine mandate would not satisfy the test of reasonableness in view of the dropping efficacy of the vaccines against the emerging vaccine-resistant variants.

The test of reasonability requires a clearly established nexus between the basis of  classification of persons( the classification of two different classes namely the vaccinated and the unvaccinated) and the object which the legislation attempts to achieve. Since the factor of efficacy of vaccines clearly gets in the way of achieving any of the main objects of a vaccine mandate particularly achieving herd immunity and assurance of preventing deaths, a vaccine mandate is bound to  be recognized as a class legislation. Further the reasonability of a vaccine mandate depends on the level of risk, the types of jobs people are associated with in the course of their employment, age group, allergic conditions and it must be subjectively assessed on such bases. As such a mandate to vaccine across the board without making exceptions does not fulfil the test of reasonableness. 

Further, a vaccine mandate would contravene the freedom of movement as embodied in Article 14(1)(h). Every citizen is entitled to move about freely anywhere in the country and enter any public places therein, however subject to reasonable restrictions as provided by Article 15(1) (6). It must also be noted that, though Article 12 is also not absolute and is open for restrictions in the interests of protection of public health as warranted in Article 15 (7), the State is not in a position to impose any restrictions unless such restrictions can be justified as to their reasonability and proportionality in protecting the interests of the public.

What's the role of vaccine efficacy in making a legal case against a vaccine mandate?

The primary objective behind a mandatory inoculation is to prevent human to human spread of the disease and thereby achieve herd immunity. Saving the lives of those receive the jab is only a secondary purpose. The efficacy of the vaccines plays a major role in achieving both the above purposes. 

Then the question arises as to whether vaccines are efficient to prevent spread of the virus. No, they are not. Almost all vaccinated people are bound to carry the virus and spread it to others. Mill's 'harm principle' makes a point here. It expounds the idea that individuals rights can be restricted only when such restriction prevents harm to others. Thus a vaccine which is incapable of preventing the spread of the disease to others, thereby rendering itself incapable of preventing harm to others, should not be forced upon an individual in the name of public interests. Harm principle can be triggered in favor of a vaccine mandate only if the vaccine is shown to prevent transmission of the virus, not when it is hyped to be reducing the severity of the complications resulting from contracting covid-19.   

Secondly, does receiving the vaccine rule out any possibility of death in case anyone contracts covid-19? No, it doesn't guarantee life merely because a person gets vaccinated. Has the vaccine even helped achieve herd immunity? No, it hasn't. Therefore should you be coerced to take a jab that doesn't even guarantee the main purposes of getting a vaccine? 

Amidst the emergence of hyper-transmissible deadly covid variants, the vaccination drive has been all about giving confidence and sense of relief to the public to go about their every day life like in pre-covid times; a kind of a psychological booster. But in reality the efficacy of the vaccines remains doubtful. It's okay to be positive and confident about the vaccine, but sometimes too much confidence and positivity can get in the way of making a real progress and can lead to disastrous situations. Open your eyes and see. We gradually distanced ourselves from the process of mandatory quarantining of the infected, stringent travel restrictions, and completely relied on the benefits of vaccination. This complete reliance and hope on vaccination alone as some may refer to as a vaccination carnival, eventually resulted in an increased movement of people and lack of compliance with health guidelines, thereby exhausting the health sector of the country with mounting covid cases, dragging the nation into an unprecedented health crisis. 

What the government should be doing instead of making vaccination mandatory for all?

Since natural human instincts are to oppose compulsion, force or coercion in whatever form it may come, a vaccine mandate will only result in more and more opposition. Thus encouragement to receive the vaccine should not come in the form of coercion. Instead the government must aim at making available scientific data about vaccine safety and efficacy to the public domain to facilitate an individual to  make an informed choice to receive or not to receive the vaccine. It also seems prudent for the government to publish data in exact numbers about deaths caused among vaccinated  people and unvaccinated people. This should however be done in a transparent manner. 

Can private institutions refuse to offer services to you if you're not vaccinated?

No. No private enterprises can force to require their employees or customers to carry the vaccination cards for the purpose of deciding the eligibility to receive the services they offer, unless a legislation is passed by the parliament to that effect giving clear authority to private enterprises to do so.

Is there a moral case against Covid vaccine mandates?

The answer to this question more or less depends on the vaccine safety and the right of individuals to make their informed consent. Thus individuals inherently have the right to exercise their informed consent, and enjoy the freedom of choice concerning one's bodily autonomy and psychological integrity. Therefore as individuals we have the freedom of making a personal choice before deciding what chemicals go into our bodies and what not. Given the fact that all vaccines were rushed into the market with unprecedented speed with an approval for emergency use only despite not having been properly tested for their long term side effects, and  the roll out of some vaccines being paused in some countries due to safety concerns, a vaccine mandate anywhere in the world in these circumstances would be a clear indication of an oppression of individual liberty and freedoms. 

Why I decided not to take the jab yet?

True, we have to save our family, our loved ones and literally everybody around us. However, personally I do not consent to take the vaccine yet. I need to see for myself the real results of the vaccine in preventing deaths and slowing down the pandemic. Right now, I don't see any real impact being made by vaccines both at home and abroad. But it is not for me to influence others who are willing to take the jab with confidence to not to receive it. The same the other way around. No one can force others who are skeptical and unwilling to receive the jab to take it. Moreover, those who have pure medical reasons to refuse the jab should not be socially isolated. Vaccination should in fact remain a personal choice. Therefore if you're someone who treasures your freedom of choice, then don't be hesitant to make your stand clear and refuse the vaccine. Remember, refusing the vaccine by withholding your consent is not being vaccine-resistant or antigovernment. It is a lot more about making an informed choice for yourself. 

Please share your thoughts and comments down below on the recent global push for vaccine mandates and feel free to share with us how it has affected your decision to receive the vaccine.