INTRODUCTION
Informed
Consent is a Fundamental Human Right Protected Against Diminishment Through
Legislative and Administrative Agency Denial of Philosophical or Religious
Conscientious Objections to Mandated Vaccination. Informed Consent is Separate
from Statutory Exemptions and May Not Be Abolished.
The
Right to Informed Consent is Meaningless Without the Right to Refuse Any
Medical Intervention, Including Mandated Vaccination. Government Agents and
Those Acting Under Color of Law are Forbidden by Long-Standing National and
International Law from Coercing Vaccination.
In order to vindicate International Humanitarian Law regarding Informed
Consent to any and all medical interventions, including vaccination, even
during any declared local, national or international Health Emergency, the
right to refuse any vaccination must be respected, whether that refusal is
grounded in philosophical, medical, religious or no reasons at all.
Index:
Introduction
Point One: The Legal Basis for Informed Consent
Point Two: Legitimate Government Regulation
Point
Three: International Law Protects Informed Consent
Point
Four: The Right Must Be Asserted to Be Protected
Point
Five: The Right May Not Be Defeated by Unconstitutional Conditions
Conclusion
.
Point One: The Bill of Rights’ Speech, Privacy and Association Rights
are the
Basis for Informed Consent.
Implementing the general law as applied to the protection of human life is
mandated, in the instance of vaccination, by the United States Supreme Court,
which held that the courts “are not without power…” regarding vaccination
in the 1905 case of Jacobson vs Commonwealth of Massachusetts[1].
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 even medical interventions with good intent but without Informed
Consent an unlawful trespass:
“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.”[2]
Federal
Regulation acknowledges Informed Consent for formal Institutional Review
Board (IRB – required for FDA approved medical experiments) overseeing
experimentation.[3] The recognition of the
application of Informed Consent during the less formal “final stage”
of experimentation on drugs (including vaccines) released to the public is
not adequately implemented by law or regulation, “…Phase 4 trials
are conducted after a product is already approved and on the market to
find out more about the treatment’s long-term risks…”[4]
With
regard to all communications about health care decisions, the members of
the public have the right to make informed consent decisions, even if a
decision may be considered a “bad” decision by the Government. The Supreme
Court indicated, in Thompson v Western States[5]:
“We have previously
rejected the notion that the Government has an interest in preventing the
dissemination of truthful commercial information in order to prevent
members of the public from making bad decisions with the information.”
Strong
legal support for the doctrine of Informed Consent is provided by the Nuremberg
Code. [6]
The
United States is bound to observe the Nuremberg Code by virtue of the
Subsequent Nuremberg Trials (which included the infamous Nazi Doctors
Trial) and subsequent exacting of justice through penalties, including the
death penalty, for violating the universal right of Informed Consent.
The
Geneva Conventions (the international treaties that govern humanitarian
requirements) [7] require that the United States be
bound by these international humanitarian principles. Thus the United States is
treaty-bound to implement fully Informed Consent.
Even
in an emergency situation Government Agencies involved must take a
pro-active role in the full implementation of Informed Consent without “the
intervention of any element of force, fraud, deceit, duress,
over-reaching, or other ulterior form of constraint or coercion…” [8]
The public has a right to know, and the governments on the federal and
state levels have an obligation to provide, clear information regarding
the Informed Consent, to the end that government approvals, requirements,
mandates and recommendations are understood to be subject to the Right of
Informed Consent. Intervention by the courts must vindicate this Right.
Mandated
consent to vaccination is coerced opinion speech, especially when mandated
against the conscientious objection of the individual or guardian. The First Amendment absolutely forbids any
law that coerces the expression of an opinion an individual does not hold.
Point Two:
Legitimate Government Regulation
Government Agencies
have No Legitimate Interest in
Promoting FDA-Approved Vaccination Mandates in Violation of Informed
Consent.
In
the case of State v Biggs (46 SE Reporter 401, 1903) the North
Carolina Supreme Court dealt with a person who was advising people as to
diet, and administering massage, baths and physical culture. In the Biggs case,
the defendant “advertised himself as a ‘nonmedical physician’… [and] held
himself out to the public to cure disease by ‘a system of drugless
healing’…” p.401.
That Court held that there could be no “state system of healing” p.402 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…” p.402.
There is no compelling government interest in controlling
people associating together for the improvement of their well-being.
The North Carolina Supreme Court concluded, nearly a century ago in State
v Biggs, supra., at p.405:
“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. When the
Master, who was himself called the Good Physician, was told that other
than his followers were casting out devils and curing diseases, he
said, ‘Forbid them not.‘” (p.405).
FDA approved drugs, including vaccines, remain in an experimental state,
which the FDA calls “Phase 4” of the clinical trials system. [9]
Unless
affirmatively and effectively asserted an individual’s Fundamental Right
to Informed Consent, the legal ability to resist unwanted medical
interventions, such as vaccines and other invasive techniques, may be
ignored by the medical system under government directive. Based on
the ancient legal principle that “silence is acquiescence” [10] martial law or medical emergency
authorities may presume that a person consents to even experimental
medical interventions, as was imposed by WHO dictum during the 2014 Ebola
Panic [11]. The same is true of medical
practice in “ordinary times”. Expressing refusal to consent trumps presumptions
of consent.
After the horrors of the Second World War, including the murder and abuse
of millions with the complicity of the “health care” authorities of
various warring parties, the international community developed conventions
and declarations to the end that “Never Again!” would – or could – the
health system or health professionals be used to harm either individuals
or whole populations, or subject them to medical interventions or
experiments without valid Informed Consent. Those prohibitions and protections
remain binding today.
A
key element in the international protections secured by the Allied Victory
and subsequent codification of health-related international law was
recognition that no person could be forced to accept any medical
intervention that was contrary to conscience and that all medical interventions
were to be carried out only with fully informed [and
therefore meaningfully willing] consent.
This
has been international law for millennia, starting with the Hippocratic
Oath in which doctors swore “I will take care that [my patients]
suffer no hurt or damage” and “Nor shall any man’s entreaty prevail upon
me to administer poison to anyone…”[12]
Point Three: International Law
Protects the Right of Informed Consent
Among the Post World War II protective codifications were the Universal
Declaration of Rights, Geneva Declaration [13] and the Nuremberg Code which state, concerning the rights of
all human beings and the obligation for ethical action by health
personnel:
“Everyone has the right to
life, liberty and security of person… No one shall be subjected to
… inhuman or degrading treatment … Everyone is entitled in full
equality to a fair and public hearing by an independent and impartial tribunal,
in the determination of his rights… No one shall be subjected
to arbitrary interference with his privacy, family, home or
correspondence…” [14]
“I WILL NOT USE my medical
knowledge to violate human rights and civil liberties, even under threat…” [15]
“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.” [16]
This
salutary development of international law has continued with international
standards promulgated, such as the UNESCO Universal Bioethics
Declaration [17] about which it has been
said:
“Even apart from article 7
of the ICCPR, ethical requirements for informed consent before
medical or scientific treatment probably constitute international law as
involving “general principles of law” under article 38 (1) (c) of
the Statute of the International Court of Justice. The reference
to “civilised nations” in this context could well introduce an ethical
requirement to such evaluations that many contemporary developed nations
may fail.” [18]
The literature further defines Informed Consent.
“Informed consent is a
process for getting permission before conducting a healthcare intervention on
a person… In the United Kingdom and countries such as Malaysia
and Singapore, informed consent in medical procedures requires proof as to
the standard of care to expect as a recognized standard of acceptable
professional practice (the Bolam Test), that is, what risks would a
medical professional usually disclose in the circumstances (see Loss of
right in English law). Arguably, this is “sufficient consent” rather than
“informed consent.” … Medicine in the United States, Australia, and Canada
take a more patient-centric approach to “‘informed consent.’” Informed consent
in these jurisdictions requires doctors to disclose significant risks, as
well as risks of particular importance to that patient. This
approach combines an objective (the reasonable patient) and subjective
(this particular patient) approach.” [19]
Point Four: The Right Must Be
Asserted to Be Preserved
Where
there is no recognition of the legal duty to obtain informed consent, the
individual or guardian must assert the Right or it may
unlawfully assumed or deemed to have been waived. International
Humanitarian Law is clear: without clear, affirmative, memorialized
informed consent, it must be concluded that Informed Consent has been
withheld.
The
essential importance of asserting the Right to preserve it is shown by the
2013 US Supreme Court case of Missouri vs McNeely, where the
warrantless extraction of blood was ruled illegal as the defendant
“refused to consent.” Had McNeely remained silent, the blood test would
have been allowed.[20]
The
Court opined,
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…”
If the removal of blood “implicates significant, constitutionally
protected privacy interests…” it is fair to assume that other invasive
medical techniques including the introduction of vaccine toxins into the
body that have been held to be “unavoidably unsafe”[21] will also give rise to such
concerns.
The
Constitution of the United States recognizes certain Rights held by people
and delegates certain limited Powers to the government. Without clear
respect for those Rights, the judicial system and the administration of government
will fail to protect the truly fundamental interests of civil society,
including the Right to Informed Consent.
An
earlier Supreme Court understood this, when in 1905 in Jacobson v
Massachusetts, the Court declared the judicial power to extend to
protecting people from forced vaccination.
While
giving due deference to the State authorities, the Supreme Court reserved
for the Federal Courts the right to intervene in matters where health and
life may be at stake:
.
“…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.” [22]
In a regime of verbal obfuscation of fundamental Right, only the clear
assertion of the Right will prevent degradation of the Right “by a
thousand (bureaucratic) cuts…” If McNeely had not engaged in protected
speech stating he did not consent, the taking of his blood would probably
have been allowed.
Point Five: Government Action
Imposes an Unconstitutional Condition
on the Constitutionally Protected Right to Informed Consent
The
well-established law of Unconstitutional Conditions has particular
relevance in the case before any Court wherein a party is faced with
the harsh choice of vaccinating the child or having the child banned from public
accommodations or the public benefit of public education, required by
law for all children, and guaranteed by State Constitutional Law in nearly
every State of the Union.
Any
law, regulation or policy imposing school vaccine mandates where the
parent is faced with denying his or her own expressed beliefs or
preferences (beliefs thereby protected under the First Amendment)
or denying the child access to public education, is an action “under color
of law” that forces coerced expression of consent. The Fourteenth Amendment
forbid such State action.
Banning children from public schools unless the
parent or guardian expresses consent for a medical intervention (vaccination) to
which the person chooses not to consent is precisely the type of duress
condemned by the Nuremberg Code.
It
is also clearly conditioning the acceptance of a public benefit on the
surrender of a right.
The
law of Unconstitutional Conditions is well-represented in the
jurisprudence of the United States Supreme Court and the Courts it oversees.
The Supreme Court first mentions the phrase in Doyle v.
Continental Ins. Co., 94 U.S. 535, 543 (1876) (Badley, J.,
dissenting) “Though the State may have the [police] power… it has no
power to impose unconstitutional conditions…”
In Frost
v Railroad Commission, 271 U.S. 583,594 (1925) the Court held it
“would be a palpable incongruity to strike down an act of state
legislation which, by words of express divestment seeks to strip
the citizen of rights guaranteed by the federal Constitution, but to
uphold an act by which the same result is accomplished under the guise of
a surrender of a right in exchange for a valuable privilege which the
state threatens otherwise to withhold… it may not impose conditions which
require the relinquishment of constitutional rights.”
More
recently the Court applied the principle to First Amendment speech rights
arising from expressive association issues directly in point here where
First Amendment protected religious expressive association is involved.
In Speiser v Randall, 357 U.S. 513, 526 (1958)
“In practical operation,
therefore, this procedural device must necessarily produce a result the
State could not command directly. It can only result in a deterrence of
speech which the Constitution makes free.”
And finally, of particular note is the statement in Perry v Sindermann,
408 U.S. 593, 597 (1972):
“…this court has made it clear
that even though a person has no ‘right’ to a valuable governmental
benefit and even though the government may deny him the benefit for any
number of reasons, there are some reasons upon which the government may
not rely. It may not deny a benefit to a person on a basis that infringes
his constitutionally protected interests – especially, his interest in
freedom of speech. For if the government could deny a benefit to a person
because of his constitutionally protected speech or associations, his
exercise of those freedoms would in effect be penalized and inhibited.
This would allow the government to “produce a result which (it) could not
command directly.”
Government Agents and those “Acting Under Color of Law” are forbidden by
long-standing United States and International Law from coercing
vaccination. The 14th Amendment to the US Constitution also guaranteed
that the “privileges or immunities” of Federal Citizens could not be invaded by
state and local governments. The First Amendment includes among those
privileges and immunities the Right to Freedom of Expression, Association and
Petition for Redress of Grievances.
The
original civil rights acts, enacted after the Civil War, protected those
“privileges or immunities” from persons “acting under color of law” or acting
without “due process” (which means without a specific order signed by a Judge).
Those
subject to the law must include, at least, persons employed by governments, or
receiving funding from governments, or working for entities that receive
funding from governments (or that, like the drug companies that push vaccines,
are granted special privileges, such as protection from legal responsibility
for their “unavoidably unsafe” vaccines). It must also include persons,
claiming lawful authority, intending to “pierce the skin” of someone not giving
Informed Consent.
“No State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.” 14th Amendment, Section 1.
CONCLUSION
It was not for no reason that the Founders
grouped together in the First Amendment Religious Liberty, Speech,
Assembly and Petition Rights. Rather, these stated Rights have been held by
the Supreme Court to be, together, “expressive association.”
We consider the Expressive Association Right to
express meaningful Informed Consent to be the sine qua non of
humane health care required by International Humanitarian Law. Truly, no
free person should be forced to consent to mandated medical interventions.
If a State elects to abrogate long-standing
religious, philosophical and medical exemptions, the proper remedy is for the
State to provide alternative educational opportunities for those who refuse
Informed Consent. No State has legal
power to abrogate the Universal Right of Informed Consent, no matter what that
State may do with exemptions the State previously enacted. Informed Consent trumps legislative
abrogation of statutory exemptions.
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
(sic) preventative but uninsurable and, according to many courts, “unavoidably unsafe”
gives greater emphasis to the unconscionable personal sacrifice
the individual is mandated to make. Such a mandate is inconsistent with
status as a free person, rather than a slave. No free society can
tolerate any such imposition.
“Liberty
is to the collective body what health is to every individual body. Without
health no pleasure can be tasted by man; without liberty, no happiness can
be enjoyed by society.” – Thomas Jefferson [23]
.
Ralph Fucetola JD
Attorney at Law in New Jersey
1971 – 2006
———————————————
[1] Jacobson
v. Commonwealth of Massachusetts,
197 U.S. 11 (1905)
[2] Schloendorff v. Society of New York
Hosp.,105 N.E. 92, 93 (N.Y. 1914)
[5] Thompson v. Western States Medical
Center – 01-344, decided on April 29, 2002 – 535 U.S. 357)
[9] “Phase 4 trials are conducted after
a product is already approved and on the market to find out more about the
treatment’s long-term risks, benefits, and optimal use, or to test the
product in different populations of people, such as children.”
Downloaded July 8, 2015: http://www.fda.gov/Drugs/ResourcesForYou/Consumers/ucm143531.htm
[13] The Geneva Conventions comprise four
treaties,and three additional protocols, that establish the standards of
international law for the humanitarian treatment of war. The singular term
Geneva Convention usually denotes the agreements of 1949, negotiated in the
aftermath of the Second World War (1939–45), which updated the terms of the
first three treaties (1864, 1906, 1929), and added a fourth. http://en.wikipedia.org/wiki/Geneva_Conventions
Article
6 – Consent – 1. 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. The consent should, where appropriate, be
express and may be withdrawn by the person concerned at any time and for
any reason without disadvantage or prejudice. 2. Scientific research
should only be carried out with the prior, free, express and informed
consent of the person concerned. The information should be adequate,
provided in a comprehensible form and should include modalities for
withdrawal of consent. Consent may be withdrawn by the person concerned at
any time and for any reason without any disadvantage or
prejudice. Exceptions to this principle should be made only in accordance
with ethical and legal standards adopted by States, consistent with the
principles and provisions set out in this Declaration, in particular in
Article 27, and international human rights law. Article 28 – Nothing in
this Declaration may be interpreted as implying for any State, group
or person any claim to engage in any activity or to perform any act
contrary to human rights, fundamental freedoms and human
dignity… [Emphasis added]
[22] Jacobson
v. Commonwealth of Massachusetts,
197 U.S. 11 (1905)
