Feburary 2021 by Thomas McLeod, of Mt. Vernon, NH
(in support of medical freedom in immunization):
We often hear that the ethical principle of informed consent is a bedrock principle of modern medicine, and this is true. However, not many truly understand the terrible history of medical experimentation and how informed consent attained the high place of respect that it occupies today. We all know from our history lessons that the United State Supreme Court has not always been right. In 1857, the Court ruled that African Americans were “so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.” In 1905, the Court decided in the case of Jacobson vs Massachusetts that a Cambridge Pastor, Henning Jacobson — who had himself already been injured by a vaccine in his home country of Sweden — could not avoid a monetary fine of five dollars if he refused further vaccination.
The Jacobson decision formed the basis of other notorious decisions, especially the 1927 decision of Buck vs Bell which upheld the primary tool of the American Eugenics Movement. Stating that “three generation of imbeciles was enough,” and that “the principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes” the Court in Bell upheld the state practice of forced sterilization of undesirables. Three months later, building off of the Bell decision, at the Third National Socialist Party Congress “Day of Awakening” Nuremberg Rally, Adolf Hitler implicitly referenced the Bell decision when he spoke extensively about “the intrinsic value of race” and the “purity of blood.” The Virginia statute that Buck upheld had been the brainchild of American eugenicist Harry H. Laughlin. In 1933, the Nazis had used Laughlin’s statute as the basis for a law that launched the Holocaust. Indeed, the Nazis admired Laughlin so much that in 1936 they gave him an honorary doctorate from Heidelberg University.
Fast forward to 1947, World War II is over and the war crimes trials at Nuremberg are ongoing. In the so-called Doctors Trial, the defendants explicitly cited Jacobson, Buck and other US decisions as a justification for their crimes. This defense was initially so successful that the trial dragged on for months longer than expected. At one point it appeared that the defendants would be acquitted (8 of 23 were ultimately acquitted). In response to this situation, after all evidence was heard, presiding judge Walter Beals and two prosecution medical experts, one sent by the American Medical Association (the AMA), devised the Nuremberg Code, so that the court could have a standard by which to pronounce judgment on the conduct of the defendants. The point here is that the Code, which states at Point One “Required is the voluntary, well-informed, understanding consent of the human subject in a full legal capacity,” was a direct response to Nazis using American law to justify their horrendous actions.
Back in the US, some in the medical industry criticized the Nuremberg Code as an ad hoc solution to the particular problem of barbaric Nazi doctors. As history shows, the concepts within the Code gained worldwide support, despite these objections. Flowing directly from the Code was the 1948 Declaration of Geneva. Passed by the World Medical Organization, the Declaration called on physicians to take an oath that “the health and well-being of my patient will be my first consideration,” and “I will respect the autonomy and dignity of my patient.” Thereafter, in August 1949, Article 13 of the Third Geneva Convention protected prisoners of war against “medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.” Article 32 of the Fourth Geneva Convention made a similar provision applicable to the civilian population of an occupied territory. Point One of the Code was incorporated into the 1966 International Covenant on Civil and Political Rights. In 1975, the Declaration of Helsinki further recognized the principle of informed consent. This Declaration introduced the concept of an independent review board for medical studies and placed the burden of proof for showing informed consent on the researcher. In the US, revelations about the Tuskegee experiment led to the Belmont Report in 1978. The Report, by the National Commission for the Protection of Human Services of Biomedical and Behavioral Research, outlined three fundamental ethical principles: Respect for Persons, Beneficence, and Justice. Respect for Persons meant “protecting the autonomy of all people and treating them with courtesy and respect and allowing for informed consent.” In 1991, the Nuremberg Code, the Declaration of Helsinki, and the Belmont Report formed the basis of the “Common Rule” for medical research on human subjects across all federal agencies, and the establishment of the “Office for Human Research Protections” within HHS. In 1998, the Rome Statute, which is the foundational document of the International Criminal Court at The Hague, defined as a prosecutable War Crime any “medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest.” The Rome Statute went further, however, and defined the peacetime “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds” as a Crime Against Humanity. The statute is broad enough to cover the systematic denial of civil rights of those who refuse to participate in compulsory vaccination programs. Capping this long march, in 2005 the Universal Declaration on Bioethics and Human Rights, ratified by 183 nations, including the United States, stated that “Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information” and that in bioethics “The interests and welfare of the individual should have priority over the sole interest of science or society.”
You may hear from those that oppose this bill that US Supreme Court decisions have long settled the question of whether it is legal and constitutional to mandate medical treatments. As I have outlined above, the cases that currently control the medical mandate question are an anachronism that are way out of step with the arc human rights have traveled since the late 19th Century. To illustrate this point, when the US Supreme Court decided Jacobson v Massachusetts, women could not vote, nor could married women own real property, nor could they practice in the professions. The author of Jacobson, John Marshall Harlan, believed that “the negro” was an inferior race that had been better off as slaves. Harlan had been a slave owner who refused to release his slaves after the end of the Civil War. He only did so after the ratification of the 13th Amendment forced him to do so. According to Malvina French Harlan’s memoirs, when she married Harlan in 1856, each member of the large Harlan family had his or her personal “house boy” that followed him or her everywhere, stood behind him or her as they ate dinner, and could not eat dinner themselves until every member of the Harlan family had gone to bed. This is the man on whose decision in Jacobson we base modern compulsory vaccination laws in the 21st Century.
In summary, the time has come for the State of New Hampshire make an unequivocal declaration of public policy in support of the ethical principle of informed consent. Based on the history above, it is fair to say that the outcome of the Second World War and the subsequent international repudiation of compulsory medicine have de facto overturned Jacobson and its progeny. It sometimes takes many decades for the law to catch up. This bill moves the needle in the correct direction and, after clarifying amendment, I urge members to vote “ought to pass”.
Late breaking news that is relevant to this bill: on January 27, 2021, the Parliamentary Assembly of the Council of Europe issue Resolution 2361, which states in its pertinent part that member states shall:
7.3.1 ensure that citizens are informed that the vaccination is NOT mandatory, and that no one is politically, socially, or otherwise pressured to get themselves vaccinated, if they do not wish to do so themselves;
7.3.2 ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated.
The Council of Europe is the preeminent international organization founded in the wake of World War II to uphold human rights, democracy and the rule of law in Europe. It currently has 47 member states, with a population of 820 million.