Mandatory vaccination is unconstitutional

The government’s plan is seemingly based on the hope of a vaccine. That everything: personal liberty, schools, the economy, every other health concern, are all put on hold or of secondary concern until a vaccine arrives for COVID19 — a virus so horrifying and deadly that its present Philippine CFR is 1.6%, a known IFR (infection fatality ratio) of 0.1-0.2% overall, and an IFR of 0.04% for those below 70 years of age.

In any event, the question is: is it constitutional to impose mandatory vaccination for everyone? For this particular virus and under the present circumstances, the answer has to be no.

The main argument for those in favor of mandatory vaccination is the 1905 US Supreme Court case of Jacobson v Massachusetts. The popular interpretation accorded that ruling is that state police power allows the imposition of reasonable regulations to protect public health and safety. Mandatory vaccinations, it is posited, do not violate the constitutional right to liberty, individual restraints being sometimes necessary for the common good.

Harvard’s Alan Dershowitz supports this: “Let me put it very clearly: you have no constitutional right to endanger the public and spread the disease, even if you disagree. You have no right not to be vaccinated. And if you refuse to be vaccinated, the state has the power to literally take you to a doctor’s office and plunge a needle into your arm.”

Having said that, such arguments for mandatory vaccination ultimately fail. Renowned bioethicist Wesley J. Smith explains the inapplicability of Jacobson: “The decision does not stand for the principle that the federal government — or even state authorities — have the power to force everyone to receive a vaccination because there is a health emergency. Rather, it found that the United States cannot impose a national legal standard on a locality unless mandated by the Constitution, which in this case, it wasn’t.”

“Government cannot just pass any law it wants because there is a health emergency. So, here’s a question that must be answered in assessing Dershowitz’s claim of a broad power of the government in the current circumstance: Is the COVID-19 pandemic such a ‘great danger’ that it would be ‘reasonable’ to secure ‘the safety of the general public’ for the government to force everyone in the country to be vaccinated? It seems to me that the answer must be no.” (“Government Can’t Compel You to Take COVID-19 Vaccine,” May 26, 2020)

The reason has to do with context. COVID-19 is simply not smallpox, which is the subject of Jacobson. Smallpox has a CFR (case fatality rate) of 30% and is definitely one of the most lethal viruses in history. It’s also known to permanently scar survivors.

COVID-19 is nowhere near smallpox: aside from its low CFR/IFR rates (e.g. tuberculosis has a higher CFR rate at 35%), the coronavirus has an identified specific demographic that it relatively severely affects: the elderly and those with comorbidities. Practically 90% of the population (those below 60 years of age, if without another serious health condition) will generally come off unscathed from the coronavirus. The probability of a 0-29 year old, for example (without comorbidities), needing hospital treatment for COVID-19 (i.e. those affected severely or critically) is just 0.92%.

As of this writing, 62% of the 4,108 deaths are from the 60 years old and onwards. Those of the 0-29 year old age group (which comprise more than 53% of the population) constitute 5% (210) of overall deaths. For anyone 0-29 years of age, if one focuses on the recoveries and deaths within that age range: the mortality rate is 0.3%. Take away those with comorbidities, then the COVID-19 death rate for the 0-29 age group is practically zero. Compare this with a recent UNICEF report stating that “every day, 95 children in the Philippines die from malnutrition.” That’s 2,850 deaths monthly, 32,000 yearly. For children alone, during ordinary economic times. And this lockdown period is certainly no ordinary time.

The point is that with all that we know now about COVID-19, it would simply be unreasonable to impose a mandatory vaccination on an otherwise healthy and significant portion of the population, when the minority that is truly affected by the coronavirus has been identified. And even for that minority, the government can certainly apply less intrusive means to serve public health purposes that will not violate anyone’s civil liberties.

Notably, the misnamed “Mandatory Infants and Children Health Immunization Act of 2011” (RA 10152) contains no penalty for non-vaccination.

Even assuming a COVID-19 vaccine is proven safe (i.e., without harmful side effects), its effectiveness must also be addressed. Despite the years, flu vaccines have been shown to be merely 50-60% effective, that for tuberculosis perhaps 80%.

Setting aside for now arguments based on religious exemptions, ultimately the issue is about the exercise of police power, which requires compliance with the Constitution and legislation. It’s also necessary there be lawful subject and lawful means.

Mandatory vaccination for COVID-19 fails on those counts.

Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.