Coercion of society to be vaccinated is anchored on two propositions: the vaccines concerned must be formally approved by the authorities of a particular jurisdiction; there must be laws or regulations that mandate such a requirement.
by Dr. Ruwantissa Abeyratne in Montreal
When Jonas Salk was asked how safe the polio vaccine he developed was, he replied :”It is safe, and you can't get safer than safe.”
The title of this essay reflects perhaps the most contentious question of our time. Nations, corporations, communities, companies and even parents have had forceful but subjective arguments one way or another. Take for instance an example from the airline industry. Sebastian Powell writing on 8 August 2021 in Loyalty Lobby says :“United Airlines will require its 67,000 U.S. employees to get vaccinated against Covid-19 by no later than Oct. 25 or risk termination of employment if they don’t provide the credentials. The mandate is contingent on the full authorization of certain vaccines by the U.S. Food & Drug Administration (FDA) which has currently authorized the products only for emergency use… The Airline Pilots Association, which represents United’s more than 12,000 aviators, believes the mandate is legal. It said the “small number of pilots” who don’t agree with the policy or plan to remain unvaccinated should contact their chief pilot’s office…”
Some courts in the United States have ruled as unacceptable the decisions of authorities to rule out the essentiality of children wearing masks in school. These courts have sided with parents who have petitioned to uphold the compulsory wearing of masks by children at school. On the other side of the spectrum are parents protesting against masks. “Kids are suffering from numerous health issues related to the masks, including blacking out, nosebleeds, vomiting, dizziness, headaches, and anxiety” was one parent’s lament at a protest rally in Santa Fe, as reported by Sam Gilbert in Santa Fe New Mexican . Another parent had said: “Kids can’t breathe” and yet another comment was “ It’s not a vaccine…It’s a genetic experiment.”
Roland Pierik, writing in the Journal of Applied Philosophy his article titled Mandatory Vaccination: An Unqualified Defence rejects legal objections against mandatory vaccination: “The 2015 Disneyland outbreak of measles in the US unequivocally brought to light what had been brewing below the surface for a while: a slow but steady decline in vaccination rates resulting in a rising number of outbreaks… in the face of diminishing vaccination rates, childhood vaccinations should not be seen as part of the domain of parental choice but, instead, as a non-negotiable legal obligation. … [F]irst, government should not permit parents to put their children at avoidable risk of death and suffering; second, government should guard the common good of herd immunity to protect vulnerable persons”.
Dr. Anthony Fauci, a preeminent authority on epidemics and virology, and Chief Medical Advisor to President Biden, as well as Director of the National Institute of Allergy and Infectious Disease, in an interview on CNN’s programme GPS on 8 August 2021 said that vaccines are still doing their duty and offer the best path to herd immunity and the future of infectious diseases. In this context it might be worthy of note that the international health dimension of COVID-19 involves human rights issues as well. International human rights law has laid down two critical aspects relating to public health: that protection of public health constitutes legitimate grounds for limiting human rights in certain circumstances (such as detention of persons or house arrest tantamount to quarantine exercises would be justified in order to contain a disease); and individuals have an inherent right to health.
Coercion of society to be vaccinated is anchored on two propositions: the vaccines concerned must be formally approved by the authorities of a particular jurisdiction; there must be laws or regulations that mandate such a requirement. In other words, different employers or communities, or groups of protesters cannot have different regulations that they apply ex post facto in the same jurisdiction. The ultimate arbiter would be the courts. Jacobson v. Massachusetts (1905) is a landmark case where a pastor claimed that a mandatory order on vaccination against smallpox violated his religious liberties and was arbitrary and capricious. Justice Harlan, who sided with the primacy of public safety stated: “ “But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good”. The learned judge went on to say: “ Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that 'persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned”.
On 5 August 2021, The European Court of Human Rights (EHCR), adjudicating on a case coming out of the Czech Republic concerning the compulsory vaccination of children (not pertaining to Covid-19) ruled that compulsory vaccinations would not contravene human rights law — and may be necessary in democratic societies. The Court is reported to have said "The measures could be regarded as being 'necessary in a democratic society,'" Although the ruling did not deal directly with COVID-19 vaccines, experts believe it could have implications for the vaccination drive against the virus, especially for those who have so far stated a refusal to accept the jab.
Nicolas Hervieu, a legal expert specializing in the ECHR, is reported to have said that the judgment "reinforces the possibility of a compulsory vaccination under conditions of the current COVID-19 epidemic,"
One of the fundamental principles enunciated by the common law concept of Rule of Law is that social conduct should be governed by laws and regulations adopted by the appropriate legislatures and such laws and regulations should be applied by the courts and implemented by appropriately designated authorities. As such, subjective, arbitrary, and capricious decisions by employers to terminate employment at will according to employer peccadillos and fetishes will be viewed with grave concern by the courts and this issue will always be determined judicially in accordance with the application of valid laws and the principles of public policy.
All that having been said, one has also to consider the view of Alex Berezow PhD, who writes in the American Council on Science and Health that there are five criteria that should be followed when considering making vaccinations mandatory: “Efficacy. Before we force someone to take a vaccine, we need to make sure it works, not just in the short-term but the long-term as well. Jabs like MMR and DTaP confer protection for a long time, often a lifetime. But we don't know yet if the COVID vaccines will protect people long-term; Safety. Clinical trials and the millions of doses already administered show that the COVID vaccine is safe. (It's certainly orders of magnitude safer than getting COVID.) However, there are always rare side effects. We want to know what all of those could be before mandating that millions of people receive the vaccine. We probably won't have that information for several year; Severity (virulence). Diseases that are nasty or have a high infection-fatality rate are good candidates for mandatory vaccination. Tetanus causes excruciating pain and muscle spasms that lead to respiratory failure and a gruesome death. Tetanus spores are ubiquitous in the soil, so why risk it when there's a vaccine that can prevent it?; Likelihood of infection. Some infectious diseases are horrible and deadly -- smallpox and rabies comes to mind. However, the likelihood of being infected is essentially zero for both. (There is a small, non-zero risk that smallpox could be used as a biological weapon.) The average person is never likely to encounter either virus, so vaccination makes no sense, let alone mandatory vaccination; Contagiousness and method of transmission. Vaccines against diseases that are easy to catch, for instance by walking into a room with another infected person, are good candidates for being mandatory. Measles is perhaps the most infectious microbe known, which is one reason why MMR vaccines are required for school. On the flip side, human papillomavirus (HPV), which causes cervical cancer, can only be acquired from sexual contact. In this case, there isn't a strong case for mandatory vaccination.
Berezow contends that only the last two i.e. likelihood of infection and contagiousness and methods of transmission apply to making the Covid-19 vaccination mandatory.
It will be interesting to see what the courts might say in the current context if the matter is remanded to adjudication. One final qualifier: the above reasoning would not necessarily apply to an employment contract that an employee signs at the point of employment. This is an agreement consensus ad idem that both employer and employee agree to as an integral element of a contract. The only caveat is that a private contract cannot have conditions that are contrary to existing laws or established public policy.
Dr. Abeyratne is the author of Air Transport and Pandemic Law, to be released by Springer in September 2021.
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