Law Professor Alan Dershowitz is
“States Can ‘Absolutely‘ Mandate Vaccinations”
Professor Dershowitz, abandoning his life-long support for civil liberties, raises erroneous arguments supporting state-mandated vaccination during a declared pandemic. He surrenders to politicians the power to decide when individuals may assert their universal right to refuse Informed Consent to any medical intervention. That vaccination is always experimental and merely preventative adds to the shockingly wrong position taken by the professor. Like others, he grounds his view of the law in an old case misinterpreted, while ignoring significant legal precedent binding on all governments.
Dershowitz stands not with the Prosecutors at Nuremberg, but rather with the Nazi Doctors, in the Docket of History.
Why do I assert that? Let’s take a little look at some legal history.
In 1905, before the law of Informed Consent and Privacy developed, the US Supreme Court was faced with a vaccination case arising in Massachusetts where the government ordered everyone to be vaccinated against a declared epidemic disease, or pay a $5.00 fine. One Mr. Jacobson refused to be vaccinated and was so fined. He appealed and the Court heard the matter of Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).
The Court, after affirming that it was not determining the safety of vaccination, which was not raised in the case, went on to state that the imposition of a fine for refusing vaccination was not beyond the power of the state. The Court continued, however, noting that courts were “not without power” to intervene in vaccination cases and that,
“…if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination or that vaccination, by reason of his then condition, would seriously impair his health or probably cause his death.”
Therefore, no general rule requiring vaccination for all persons can be lawful. Under Jacobson each person mandated has the right to go before a Judge and assert why vaccination is not appropriate.
But that’s old law. Subsequent legal developments gave rise to the universal right of Informed Consent which allows each of us to refuse any medical intervention, for whatever reason, or lack of reason, we may each assert.
It was only a few years after Jacobson that the first major Informed Consent case was heard. In 1914, Judge (later Supreme Court Justice) Benjamin Cardozo validated the concept of voluntary consent when he noted that every human being has a right to decide what shall be done with his or her body, deeming medical intervention without Informed Consent an unlawful
“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.” Schloendorff v. Society of New York Hosp.,105 N.E. 92, 93 (N.Y. 1914)
Fast forward 40 years. Wars have consequences.
Universal revulsion against the horrific crimes of the Nazis led to the Nuremberg Trials. The Subsequent Nuremberg Trials (conducted by the US Military) included the infamous Nazi Doctors’ Trial wherein the defendants were held liable for engaging in vile human experimentation without the Informed Consent of their victims. Under the Geneva Conventions such a war crimes trial must be conducted under the Law as it existed at the start of the war, and such Law must apply to the government conducting the trial. For that purpose the US Prosecutors, led by a US Supreme Court Justice on leave from the Court to head the prosecution, issued the Nuremberg Code which set forth the Law of Informed Consent binding on all nations.
The operative paragraph states:
“The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved, as to enable him to make an understanding and enlightened decision.” http://www.hhs.gov/ohrp/archive/nurcode.html
It is this Law that Professor Dershowitz ignores.
During the 75 years since the end of the Second World War the legal implementation of the right to refuse Informed Consent has continued to develop.
Nearly identical legal language as was adopted in Nuremberg has been included in the UN BioEthics Declaration and in the Institutional Review Board laws of many countries and US States.
As recently as 2013 the US Supreme Court asserted the significance of Informed Consent:
Even a “…diminished expectation of privacy does not diminish the… privacy interest in preventing a government agent from piercing the… skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests…” Missouri vs McNeely, 569 US 141 (2013)
There can hardly be a more fundamental or central freedom issue than whether agents of government, or persons acting under color of state law, as are those who act to abrogate conscientious objections to mandated vaccines, can force a free and competent adult (or a child under the protection of such adult) to receive any medical treatment. That the treatment may be vaccination, which is not merely experimental and (allegedly) preventative but uninsurable and, according to many courts, “unavoidably unsafe” gives greater emphasis to the unconscionable personal sacrifice the individual is mandated to make “in the public interest”. Such a mandate is inconsistent with status as a free person, rather than a slave. No free society can tolerate any such imposition.
As the wise Judges of the North Carolina Supreme Court declared in 1903, just two years before Jacobson,
There can be no “state system of healing…” and while “Those who wish to be treated by practitioners of medicine and surgery had the guaranty that such practitioners had been duly examined… those who had faith in treatment by methods not included in the ‘practice of medicine and surgery’ as usually understood, had reserved to them the right to practice their faith and be treated, if they chose, by those who openly and avowedly did not use either surgery or drugs in the treatment of diseases…” and further, “Medicine is an experimental, not an exact science. All the law can do is to regulate and safeguard the use of powerful and dangerous remedies, like the knife and drugs, but it cannot forbid dispensing with them.” State v Biggs (46 SE Reporter 401, 1903)
I find it inconceivable that Professor Dershowitz has not clearly considered the consequences of forcing everyone to be vaccinated with “unavoidably unsafe” vaccines. Did he speak “off the cuff” and does not really mean, as he was quoted, that “anti-vaxxers” can be “forced” to be vaccinated. But if he really condones actually forcing needles into unwilling bodies he truly stands in the Docket of History with Dr. Mengele and his ilk.
One thing is for certain: unless you assert your refusal to grant Informed Consent the legal system will “deem” the right “waived.” Learn more about asserting your right here: https://tinyurl.com/AVDcard
This article is based on the paper I delivered September 2019 at the Libertarian Scholars’ Conference, Kings College NYC