By Ranger Squirrel - Ranger Squirrel's Ramblings
I was listening to The Survival Podcast (I think it was episode 288) on my way home from work the other day and the host was talking about the things that could lead to civil unrest in this country.
As he was rattling off different things, there was one big issue I didn't hear him mention: Abortion. Now I could have missed it (I was simultaneously driving, texting, eating, listening, and trying to pick up a quarter I found on the floorboards), but I'm guessing he didn't even bother to say it because it's too obvious.
Before I get started here, let me remind everyone that while I do have a law degree, I am not a practicing attorney and this area of law was never my specialty. This is all just speculation based on my legal training and experience. In other words, I freely admit that my legal analysis may be flawed and I encourage you to correct me via comments on this blog or emails to firstname.lastname@example.org if you know the law.
Also - this post is not about abortion and whether it is right or wrong. It's about the potential of a newer hot-button issue (mandatory vaccines) to cause the abortion argument to flare up again and possibly lead to civil unrest.
There has been been a lot of discussion about the swine flu vaccine and whether the government is going to make it mandatory. Generally, there are three "groups" of people who are objecting to the idea: 1) people with religious objections to vaccines in general; 2) concerned citizens who don't want the government forcing them to do anything; and 3) members of the tinfoil hat brigade who are convinced that the vaccines are a way of delivering mind-control chips, command activated poisons, or GPS tracking devices - or maybe all three.
Group #2 is by far the largest. Group #1 has the best legal protection. Group #3...well...what can we really say about group #3...especially since we all know we already got all three of those things via the flouride in our water anyway?
The folks in Group #1 really don't have much to worry about - theirs is a long standing protection, upheld time and time again in courts, and firmly grounded in fundamental constitutional rights. Unless something changes radically in terms of the way this vaccine is administered, the people who fit into group #1 will just need to fill out a form and go on about their business.
I'm not touching Group #3 except to say that receiving this vaccine may someday be incidental to their visit to a quiet and restful place with lots of people in white uniforms and plush, padded walls.
It's group #2 that I find interesting from a legal standpoint (and, for the record, I fall somewhere in this category). Many, if not most, of the people in this group would define themselves as either Libertarian or Conservative. Many, if not most of those, would also define themselves as pro-life...and THAT is where things get really interesting.
Unless the people in group #2 can make a valid claim that taking this vaccine would be a violation of the laws of their religion, they'll need to base their objection on some other constitutional right. Most of them, however, have taken vaccines in the past and allowed their children to be vaccinated as well, so a religious claim doesn't seem likely. They could claim it's an inconvenience but they'll lose in court. They could claim that it's stupid, but they'll lose in court. They can even claim that they double-dog object, but they'll lose in court. To have a shot at winning, they'll need to base their claim on a constitutional right. We know religion works, but failing that, what's another option? What fundamental constitutional right can they claim if not religion?
Unless I'm mistaken (quite possible), the only possible answer here is privacy. "Where is that in the constitution?" some will surely ask. I'm serious, look here and do a CTRL-F "find" for the word privacy. You won't find it in the text of the Constitution. That's because it's an implied right, "found" by the courts based on other things that are in the constitution. In fact, it just so happens that there is even a well defined and highly litigated body of case law dealing specifically with privacy as it relates to medical procedures. Moreover, those cases weigh the government's interest to protect a citizen or citizens against the individual's right to privacy. In essence, those cases say that there is a personal right to privacy that protects you from government interference in your medical care up until the point that the government's interest outweighs your own. The case in this category that is most well known is Roe v. Wade.
It seems to me that in order to avoid a mandatory H1N1 vaccine, one of the arguments you would need to make is that you have that right to privacy and that it outweighs the government's interest in protecting the populace from H1N1.
But if you're pro-life and you feel strongly about it, I think you're in a bit of a pickle. You'll need to argue that Roe v. Wade is good law inasmuch as it protects the personal right to privacy with regard to medical procedures. So pro-life people will need to argue in favor of at least some aspects of Roe v. Wade - the single most hated pro-choice case in history.
Now those with a legal education may argue that you don't need to cite to Roe at all and that there are other ways to make similar arguments (there is a line of cases dealing with involuntary sterilization for example), but I have to suggest two things: 1) if the attorney is really doing her job and representing her client well, she'll need to at least explore this option unless the client specifically says otherwise; and 2) even if you, as the person making this argument, don't touch the issue of abortion at all, you can bet the pro-choice folks will latch onto whatever argument you do end up making and use it for their own fight...the analogy is just too easy to pass up.
Now - is this issue going to be a rebirth for the abortion debate and lead to riots and general unrest? Who knows. The bottom line to me is that there are a bunch of people in Group #2 who will 1) already be pissed off by the idea of a mandatory vaccine; 2) will find themselves even more pissed off when they realize what they have to argue to win; and 3) are already pissed off about a bunch of other stuff the government is doing...eventually, it seems like something's gotta give.
Flea - This one should get some debate going...Thanks RS!
...that is all.
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