Doesn’t the Constitution Guarantee Me The Right To Do Whatever I Want? Not Quite.


Without some rules, these two might kill each other.

My three year old really, really, likes to annoy her five-year old sister. While this often takes the usual route of stealing a favorite doll or knocking down Cinderella’s Lego castle that just took an hour to build, sometimes things get a bit more, um… violent. I don’t know the laws of physics that allow it, but somehow Annie can pin her older sister to the ground, sit on her chest, and yank the bejeezus out of Olivia’s hair. Inevitably the tears flow from both. Olivia as she stares at a clump of her own blond hair on the ground, and Annie as she gets hauled off to time out. Listen: We are pretty lenient parents, but we’ve got some basic rules. “No hurting, maiming or trying to kill your sister,” is one of them.

Our home-based legal system is sort of a microcosm of real life. While, I don’t usually fine or imprison my kids when they break a rule, they do get punished in some way – even if it just means sitting out a round of a game. The way we govern grown ups isn’t all that different.   There are some basic rules of order we all agree to abide by (mostly). In order to be allowed to work and play as a member of society, and to reap the benefits of being part of a community, we each give up some individual rights. I may think your new dog is a nuisance but I’m not going to kill him. For one thing, it’s probably not legal and for another, word might get out and then I will be the pariah of the neighborhood. I’ll have to sit out of the game.

Rules are necessary to ensure the good –even the survival – of society. Our actions are constantly being subject to various rules and regulations, without which we would soon be in a state of chaos. If we all tried to drive through the light, regardless of whether we had a green or red light, we wouldn’t get very far because we would all be piled up in the intersection. We put age and ability limits on driving for the same reasons – we simply cannot let anyone who wants to drive go out on the road. Not only are they a menace to themselves, but to you and me as well.

As a lawyer, I hear about dumb laws all the time. I get it. In some places in Ohio, you can’t buy wine on Sunday. But you can buy beer… because beer never gets anyone drunk on a Sabbath? It is a law that doesn’t make any sense. On the other hand, I pretty much never hear complaints about laws against murder. Or theft. Or kidnapping. If anything, most people want those laws, just even stronger than they already are. Laws keep people in order. And most of us agree that it’s fair to exclude murderers from the proverbial ball game. We send them to jail to punish and prevent future bad conduct.

A lot of us have no intention to commit murder, so there is less complaint against those rules. It’s the laws that impact our own individual freedom that tend to get people riled up. (Hence, my anger at the Sunday wine sales.). Take mandatory motorcycle helmet laws, for example. In states with these laws, no one, who otherwise qualifies, is prohibited from riding a motorcycle – you just have to wear a helmet in order to do so lawfully. Oh, now my motorcycle- riding friends are mad. I am an awesome biker. Why should the government get to ruin my fun and freedom by making me wear that stupid helmet? It’s a violation of my constitutional freedoms!

Actually, it is not. Contrary to some oft-cited beliefs, there is no constitutional right to do whatever you want. The 1st Amendment doesn’t promise you the right to cause mayhem and injury by yelling “Fire!” in a crowded theatre and inciting panic. You may have a constitutional right to “assemble,” but that doesn’t mean anywhere and in all places. Our judicial system has long given states permission to create laws that protect the health, safety ands welfare of the community – even at the expense of our individual rights.

Mandatory motorcycle helmet laws are just one example of this type of state “police power” to regulate public well-being. Even though a motorcycle rider may feel its just him, his his bike, and the open road, his decision not to wear a helmet hurts everyone else. When an SUV plows into Mr. Biker, his un-helmeted head is far more likely to be seriously injured than a helmeted one. And who comes and picks him up? The ambulance services – the ones paid for by your local or state government (ahem…your tax dollars). His weeks or months long hospital stay might be at the public expense. And if he is now permanently disabled from his head injury, he will be taking public assistance for years.   He had his moment of freedom, but all of us are now paying the price.

Mandatory vaccination laws are no different. Except in some very rare situations, no one is forcing anyone to submit to vaccination. I know of no (legitimate) claims of an individual being tied down and forcibly injected (hello? There are laws against that). But the state can make a person’s participation in some activities – school, employment – contingent on having up to date immunizations, or at the least, valid exemptions to those laws. It’s really and truly not about punishing the unvaccinated family. It’s about protecting the rest of us.

When Mr. Biker chose to ride without his helmet, his decision impacted lots of people but mostly from a financial standpoint. The state’s right to protect against vaccine preventable disease is even more pronounced. Like a helmet, the vaccine is intended primarily to protect the individual. But the failure to vaccinate can impact more than finances (though there is that too). People who choose not to vaccinate are freeloading immunity off the rest of us who are vaccinated. But if enough kids in a community aren’t vaccinated, and even one heads off to school with the measles, now you have a potentially serious health situation. And because vaccines are not always 100% effective, even the kids who are vaccinated are now at risk. This is what the state is trying to head-off with mandatory immunization laws.

My point is this: we need some laws in order to keep functioning as a society. When it comes to certain personal decisions – helmets, vaccines – your individual choice affects more than just you. You can make the choice – that is your right – but then don’t be surprised if you get asked to turn in your cleats or sit out a game.


Filed under Vaccine exemptions

5 Responses to Doesn’t the Constitution Guarantee Me The Right To Do Whatever I Want? Not Quite.

  1. Hmmm, Annie sounds a lot like I remember her mother…which is why we have rules. Well said.

  2. Molly

    My oldest daughter suffered a life altering reaction to the DTaP. She was awarded a large settlement ($50 million) in the vaccine court. Doctors have yet to determine why she reacted and if we have an underlying genetic cause in our family. As a result, my youngest children are not vaccinated.

    Calling families like ours feeeloaders is disgraceful, lacking compassion and a reflection of why people on “your side” of this debate are simply calloused with no regard for ethics. If you think utilitarianism is the only ethical framwork, you are wrong.

    • Amanda Zibners Naprawa

      I’m sorry your child suffered an adverse reaction to a vaccine and am glad you were able to use the vaccine compensation system set up by our government. ( I am shocked that there has been no public reporting of your claimed 50 million dollar settlement as this would be one of (if not the largest) claims ever paid). I have never said that people with a known allergy/adverse reaction to vaccines should continue to get vaccinated. Indeed, this is the point of medical contraindications and why children with these known problems are exempt from meeting mandatory immunization requirements. The fact remains, however, that individuals who choose not to vaccinate are relying on herd immunity to protect their unvaccinated child. Even Bob Sears, the hero of the anti-vaccine movement, admits that when he advises not to vaccinate, he is doing so on the assumption that it is not that risky because enough OTHER people are vaccinated. So, the unvaccinated person is in fact freeloading protection against disease from the community around him or her. For people who cannot vaccinate their child due to medical reasons (such as an immune compromised child), the need to maintain high rates of vaccination is particularly important because their health is dependent upon keeping diseases out of circulation. When people make the choice not to vaccinate simply because they don’t agree with it, or don’t believe the science behind it, then they are making a selfish decision that puts others around them at risk. You mention ethics, but I do not think it is ethical to refuse to vaccinate and to make yourself or your child the potential avenue by which serious diseases are introduced into a community.

    • One of the main reasons people advocate for immunizations is to protect those who are vulnerable and cannot be immunized. But those who don’t have a medical contraindication, and are not vaccinated, benefit from everyone else vaccinating. “Freeloading” may not be a term they like to hear, but it is accurate.

      I’ve read a lot of Vaccine Court decisions but haven’t come across one near 50 million. I would be interested in reading the decision if a link was available.

  3. Stacy

    I agree with Amanda, everyone that can be, should be vaccinated. If you actually DO have a verifiable reason to not be vaccinated, then that is different. No one said that people with real true allergies, or medical contraindications should get vaccinated anyways. My son is immunocompromised and can not receive live vaccines. He relies on herd immunity to protect him from these diseases he can not be vaccinated for. But, if enough people CHOOSE to not be vaccinated because of misinformation, then that herd immunity breaks down, leaving him unprotected. If you or your child has a real reason to not be vaccinated, you are relying on herd immunity and you should be even more of a champion for vaccination, because you DON’T want that herd immunity to break down and for your child to become ill. My child could become seriously ill if herd immunity breaks down enough and he gets measles. not being vaccinated due to medical reasons is not selfish. Not being vaccinated due to your own choice is!