On April 3, the Union Leader published an article entitled “Smallpox ‘virus squads’ and mandatory vaccinations upheld by the Supreme Court” that describes early attempts to enforce vaccine mandates by “gangs of policemen and medical officials who held down and forced people to receive injections.”
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The article cites an episode where a man was beaten so badly getting a vaccine that he required stitches on his head and another where a Boston public health official led a vaccine skeptic to become infected with smallpox for propaganda purposes. The piece suggests that the culmination of these early vaccination drives was a 1905 ruling by the US Supreme Court upholding vaccine mandates based upon a notion of the “common good.”
In that case, Jacobson vs Massachusetts, a Cambridge Mass. 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. For decades, courts have cited Jacobson as the legal basis for modern vaccine mandates and the media has touted Jacobson as a watershed that established an enduring principle of constitutional law. But did it?
We often hear that the ethical principle of informed consent is the bedrock of modern medicine, but it is not commonly understood why. The Jacobson decision provided a precedent for other decisions, particularly the 1927 decision of Buck vs Bell, which upheld the primary tool of the worldwide eugenics movement: involuntary sterilization.
Reasoning that “the principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes,” the Buck decision upheld involuntary sterilization against so-called “imbeciles.” Three months after the Buck decision, at the Third National Socialist “Day of Awakening” rally at Nuremberg, Adolf Hitler was emboldened when he spoke about “the intrinsic value of race” and the “purity of blood.”
The Virginia statute at the center of the Buck decision was the brainchild of American eugenicist and anti-Semite Harry H. Laughlin. After the Nazis took power in 1933, they adopted Laughlin’s law and used it to launch the Holocaust. Indeed, the Nazis admired Laughlin so much that in 1936 they awarded him an honorary doctorate from Heidelberg University for his advance of the “science of racial cleansing.”
That same year the Nazis hosted the Olympic Games and published a political poster with the headline “We Do Not Stand Alone” that prominently featured an American flag and a depiction of an Aryan man holding a shield inscribed with the name of the Nazi version of Laughlin’s law, which our own Supreme Court had previously upheld by following the Jacobson principle.
Fast forward to 1947. World War II is over and the war crimes trials at Nuremberg are ongoing. In the Doctors Trial, the 23 defendants, all highly distinguished research scientists, and physicians were charged with murder and torture in the context of appalling scientific experimentation. Given the Nazi regime’s genuine respect for Laughlin, perhaps it should not have been a surprise that the defendants cited the Jacobson and Buck decisions in their defense.
This tactic was initially very successful, so successful in fact that the trial dragged on for months longer than expected. By the time the trial finally concluded, it appeared that most or all defendants would be acquitted (8 of 23 were ultimately acquitted).
In response to this situation, presiding judge Walter Beals and two American medical experts, including Dr. Andrew C. Ivy from the American Medical Association, drafted what became known as the Nuremberg Code. 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 originally a trial document setting out a legal standard by which to judge the conduct of these particular defendants. But it was more than that. It was the first direct blow against “the principle” of Jacobson.
Back in the US, some American doctors criticized the Nuremberg Code as an ad hoc solution to the particular problem of barbaric Nazi doctors. They argued that adopting the Code in the US would impede medical research and harm public health. Despite these objections, the Code quickly gained worldwide support.
Flowing directly from the Code was the 1948 Declaration of Geneva. Passed by the World Medical Organization, it called on physicians to take an oath that “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. Later, in 1966, the International Covenant on Civil and Political Rights incorporated Point One of the Code.
Then in 1972, a whistleblower disclosed the Tuskegee experiment. Over a forty-year period, the CDC had told Black men that they were being treated for syphilis when they were in fact not being treated, so that CDC researchers could “observe the natural history of untreated syphilis.”
This egregious violation of medical ethics by the American government led to much soul-searching inside and outside of government.
While the federal investigation was pending, the 1975 Declaration of Helsinki introduced the concept of an independent review board and placed the burden of proof for showing informed consent on the researcher. The ultimate result of the Tuskegee revelations was the 1979 Belmont Report, which outlined three fundamental ethical principles: Respect for Persons, Beneficence, and Justice. Respect for Persons meant “protecting the autonomy of all people … 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 across all federal agencies, and the establishment of the Office for Human Research Protections.
More progress followed.
In 1998, the Rome Statute, the foundational document of the International Criminal Court, prohibited as a War Crime any wartime medical experiment, not in the interest of the subject. The Statute also prohibited, as a Crime Against Humanity, any systematic persecution of religious or cultural groups during peacetime, which arguably included groups of conscientious objectors to vaccination.
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 the “interests and welfare of the individual should have priority over the sole interest of science or society.” This definitive international statement forcefully repudiated Jacobson’s “common good” principle.
More recently still, on January 27, 2021, the Parliamentary Assembly of the Council of Europe issued Resolution 2361, which states that national governments shall “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,” and shall also “ensure that no one is discriminated against for not having been vaccinated.”
Public health officials often state that court decisions have long-settled the question of whether vaccine mandates are constitutional. But the controlling cases on this question are an anachronism out of step with the progression of human rights and medical ethics since the 19th Century.
When the US Supreme Court decided Jacobson, women could not vote and “separate but equal” was the law of the land. The author of Jacobson, John Marshall Harlan, believed that “the negro” was an inferior race that had been better off as slaves. Harlan refused to release his own slaves after President Lincoln issued the Emancipation Proclamation (he had that legal right as a Kentucky resident).
He only freed them after the ratification of the 13th Amendment two years later 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 a personal slave that followed him or her everywhere, stood behind him or her at dinner, and could not eat dinner until every member of the Harlan family had gone to bed. This is the background of the man on whose views of the “common good” uphold modern compulsory vaccination laws in the 21st Century.
The experience of the Holocaust and the subsequent vindications of informed consent have severely undermined the moral authority of Jacobson’s common good approach to healthcare. But in recent years, the vaccine industry, its media promoters, and public health agencies have become much more aggressive in propagating counter-narratives that undermine our human right to informed consent.
Today in New Hampshire, the Legislature has the rare opportunity to stand on the right side of history by passing HB 220, also known as the Medical Freedom Act. This bill, which passed the House of Representatives with unanimous support, declares that “Every person has the natural, essential, and inherent right to bodily integrity, free from any threat or compulsion that the person accepts any medical intervention, including immunization.” HB 220 is a compromise that contains several exceptions to accommodate existing law, but it would effectively bar new medical mandates going forward. It is now pending action in the New Hampshire Senate.
To advance as a society in a time of lockdowns and emergency orders, we need the Medical Freedom Act to protect not only our human rights but also the economy of our state. In New Hampshire today, many are justifiably alarmed that emergency orders could create a two-tiered society based on vaccination status or that some future mandate could permanently limit their ability to earn a living, go to church, attend school, shop for groceries, or simply walk down the street. Now is the time for all concerned citizens to uphold medical freedom and put this bill on the desk of Governor Sununu.
Thomas McLeod is Chair of the Liberty Defense Fund of New Hampshire, a non-profit initiative upholding individual rights through participation in the legal process. He resides in Mont Vernon, New Hampshire.