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Vaccination Refusal: Legal Basis


Civil Liberties

If someone offered you a COVID-19 vaccine today, can you refuse to take it?

Let me clarify that question – it’s not whether you would want to take the COVID vaccine, but the question is, can you refuse to take the COVID-19 vaccine? Because my guess is there's a portion in the population who, when made available to them, would want to take an FDA-approved vaccine right now because they're simply tired of the pandemic.

While some portion, I assume, or accuse (I’m sorry) is hesitant especially because of that news from Norway and the elderly people who died, or the issue on severe allergic reactions, or possibly, although this is very remote and unproven, the unintended consequence of sterilization.

So can you say No to a COVID-19 vaccination, for example if the President selects you to be vaccinated?

The short answer, at least right now, is YES – you can refuse. For now, at least. Probably at least for the foreseeable near future.

The long answer on the other hand, is something I’m hoping to at least scratch the surface on in this article.

Jacobson v. Massachusetts

This is a 1905 landmark case in the United States regarding compulsory vaccination laws.

Jacobson was a pastor who lived in Cambridge, Massachusetts. But Pastor Jacobson was originally from Sweden. As a child in Sweden, he lived through an era of mandatory vaccinations. In Jacobson’s case, these vaccinations went badly, leaving him with a lifelong horror of the practice of vaccination. So living in Massachusetts during a time where there was a smallpox outbreak, Jacobson refused vaccination, saying that he and his son had had bad reactions to earlier vaccinations. He believed that his family may have a hereditary condition that made the smallpox vaccine dangerous.

Because of Jacobson’s refusal to get vaccinated, he was prosecuted. And he was given a fine of 5 U.S. dollars in 1905 – and if you don’t think that’s harsh, that’s roughly 148 US dollars today.

The case eventually went up to the Supreme Court, and the high court ruled in favor of Massachusetts. The rationale of the court was that individual liberty is not absolute and is `subject to the police power of the state. Or simply, government’s police power trumps your freedom of choice.

Zucht v. King

And a similar U.S. case is Zucht versus King. Zucht, or Rosalyn Zucht was excluded from both public and private schools because she refused to receive a smallpox vaccination. What was different in this case was that there was an ordinance where you needed a certificate of vaccination in order to attend school. And all the same as in Jacobson, Rosalyn Zucht asserted her liberty.

And all the same when it reached the Supreme Court, they sided with the state, or in this case the school district. The court said that the school district was correct, and that it could exclude students who were not vaccinated. Again, police power trumps freedom of choice.

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The Filipino Perspective: The Dengvaxia Scandal

On April 2016, Dengvaxia, the infamous Dengue vaccine developed by Sanofi, had a high-profile launch in my own country. We were involved in every phase of clinical development. And we were the first in the world to access the vaccine. Our own department of health spent 67 million dollars on Dengvaxia and kicked off a mass immunization program.

Fast forward to November 2017, more than 800,000 children had received a dose of Dengvaxia. Sanofi, one of the biggest pharmaceutical companies in the world (top 5 in prescription sales) announced that it was changing the label of the vaccine to restrict its use to those who had already been exposed to the dengue virus. The reason for this was that people who were receiving the vaccine but had not been exposed to dengue could be vulnerable to more severe infections.

And thus with this announcement and with this relabeling, the scandal mounted. By February 2018, there was news that the vaccine was linked to several deaths of children. There was a case filed against government officials and execs of Sanofi.

And fast forward again to February of 2019 (it feels like only last year but it will be 2 years ago already by next month) – Dengvaxia’s license was suspended by the FDA. Permanently. But it is worthy to note that it is approved in the US and in the EU, but restricted to those who have had dengue.

The COVID-19 Era of Vaccinations

To conclude this article, let’s talk about today, 2021, the year of COVID-19 vaccinations.

Currently, there is no law forcing each and everyone of us to get vaccinated against COVID-19. And I’m not sure there ever will be – a law making it a crime to refuse getting vaccinated for COVID-19.

But let us look at the picture we see today. Most countries have already approved for emergency use multiple vaccines. Pfizer. Moderna. AstraZeneca. And other brands are on the way.

What’s more, even private companies are pre-ordering vaccines too. A company like Concentrix, a company with one of the largest workforce here in the Philippines, is thinking of vaccinating all of its workers. For free, it seems. And there have been rumors that some big-name companies in the U.S. will enact a policy requiring an employee to get vaccinated for him to get inside the office.

And what’s next? We haven’t seen this yet, but airports could require you to submit proof that you have been vaccinated before you can board the plane, or before you can even buy a ticket. And all of this COVID-19 vaccination requirement could spread everywhere, even if there are no laws in place mandating vaccination. Our supermarkets? Our malls? Government offices? Buses? Taxis?

Our whole society and outside environment could work against our freedom of choice even way before the government does anything.

So let’s go back to the question I had at the very beginning – if someone offered you a COVID-19 vaccine, can you refuse to take it? Will such a time come when you won’t be able to say no?

This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.


Ashutosh Joshi from New Delhi, India on March 08, 2021:

The simply answer is, just fall in line. No ifs and no buts. Cherish the choice while it still exists. Considering the state of affairs, it might soon be a goner!

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