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.
In order 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.
The Bill of
Rights’ Speech, Privacy and Association Rights underpin Informed Consent. The United States Code recognizes Informed
Consent in Section 3512 of Title 19 and specifically, 19 USC 3512(a)(1) and (a)(2).
This implements the general law as applied to the protection of human life,
mandated, in the instance of vaccination, by the United States Supreme Court in
the 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 medical intervention without Informed Consent an unlawful trespass.
Federal Regulation acknowledges Informed Consent for
formal Institutional Review Board (IRB) overseen experimentation.
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…”
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:
"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."
“Section 3512. Relationship of [trade] agreements to United
States law and State law, of Title 19 of the United States Code:
(a) Relationship of
agreements to United States law
(1) United States law
to prevail in conflict...
(2) Construction:
Nothing in this Act shall be construed –
(A) to amend or modify
any law of the United States, including any law relating to -
(i) the protection of
human, animal, or plant life or health,
(ii) the protection of
the environment, or
(iii) worker safety, or
(B) to limit any
authority conferred under any law of the United States, including section 2411
of this title, unless specifically provided for in this Act.”
Additionally, the Statutes authorizing the various Agencies
contain general provisions that support the actions requested herein.
Federal Law includes provisions that grant the Cabinet Secretaries broad
authority to promulgate rules and regulations “necessary to carry out the
Act[s].”
The United States is bound to observe the Nuremberg
Code by virtue of the Subsequent Nuremberg Trials
and subsequent exacting of justice through penalties, including the death
penalty. The Geneva Conventions
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 the 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…”[9]
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.
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.
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”[11]
martial law or medical emergency authorities may presume that you consent to
even experimental medical interventions, as we saw imposed by WHO dictum during
the 2014 Ebola Panic[12].
The same is true of medical practice in “ordinary times”.
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. 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…:[13]
Among the Post World War II protective codifications
were the Universal Declaration of Rights, Geneva Declaration[14]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…”[15]
“I WILL NOT USE
my medical knowledge to violate human rights and civil liberties, even under
threat…”[16]
“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.”[17]
This salutary development of international law has
continued with international standards promulgated, such as the UNESCO Universal
Bioethics Declaration, UNESCO Universal Bioethics Declaration
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.
Defining
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.”[20]
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.[21]
The Court opined,
“…diminished
expectation of privacy does not diminish their privacy interest in preventing a government agent from piercing their
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…” (page 15; emphasis added).
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”[22]
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.”
[Emphasis added.][23]
In a regime of verbal obscuration 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.
The question then becomes, “How is one to
effectively assert the Right to Informed Consent, enshrined in International
Humanitarian Law, for oneself and those over whom one has guardianship?” Thus,
there is a need for a clear Regulation that protects the Right whether
exercised by Advanced Medical Directive or otherwise, in situations that do not
involve a formal IRB.
The 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 any case before the Court where a party is faced with the harsh choice of vaccinating the child or having the child banned from the public benefit of public education, required by law for all children. The regarding school vaccine mandates where the parent is faced with with denying her own expressed religious beliefs (beliefs thereby protected under the First Amendment) or denying the child access to public education.
This 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.
We do not pretend to more expertise on the issue than the Court’s own
pronouncements.
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
ot 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.”
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.”
Conclusion
We
consider 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.
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[24]
[1] Jacobson v. Commonwealth of
Massachusetts, 197
U.S. 11 (1905) wherein 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.” [Emphasis
added.]
[14] 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
http://portal.unesco.org/en/ev.php-URL_ID=31058&URL_DO=DO_TOPIC&URL_SECTION=201.html which provides:
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]
[23] Jacobson v. Commonwealth of
Massachusetts, 197
U.S. 11 (1905)
The Nuremberg Doctors Trial
