Does Informed Consent Truly Exist?

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April 11, 2017 | 22,527 views

Story at-a-glance

  • Throughout history we’ve seen cases where the human right to informed consent to medical risk taking was not only challenged but completely ignored — a trend that exists to this day
  • The 1927 U.S. Supreme Court case of Buck v. Bell essentially legalized forced sterilization in the U.S.; more than 60,000 Americans were sterilized due to the ruling, and it was also used by Nazi scientists charged with crimes against humanity in their defense during the Nuremberg trials after World War II.
  • The 1905 U.S. Supreme Court case of Jacobson v. Massachusetts affirmed the constitutional authority of state legislatures to enact mandatory vaccination laws and continues to be used to shape public health laws in the U.S.

By Dr. Mercola

Informed consent is a basic human right in which a person has the ability to voluntarily accept or reject a treatment or medical procedure, including use of pharmaceutical products, after being fully informed of all possible risks and benefits.

“The most important goal of informed consent,” according to the University of Washington School of Medicine, “is that the patient has an opportunity to be an informed participant in her health care decisions.”

It seems a simple premise, but throughout history we’ve seen cases where informed consent was not only challenged but completely ignored — a trend that exists to this day.

In an era when your legal right to informed consent is increasingly under attack, it’s important to review some tragic historical mistakes and outright assaults on freedom and ensure that they’re not repeated.

For example, decisions made by judges sitting on the U.S. Supreme Court more than 100 years ago are still being used to control your health and ability to make voluntary decisions about accepting or rejecting vaccine risks for yourself or your minor child.

As Barbara Loe Fisher, president and co-founder of the National Vaccine Information Center (NVIC), put it, “The personal beliefs of Supreme Court judges may be reflected in the legal decisions they make — decisions that can have consequences for centuries.”

Lack of Informed Consent Exemplified by the Eugenics Movement

Adam Cohen is the author of the book "Imbeciles: The Supreme Court, American Eugenics and the Sterilization of Carrie Buck,” which details the early 20th century eugenics movement, including the 1927 U.S. Supreme Court case of Buck v. Bell that essentially legalized sterilization in the U.S. He spoke with NPR:1

“The first eugenics law in the United States was passed in Connecticut in 1895. And it was a law against certain kinds of marriages. They were trying to stop certain unfit people from reproducing through marriage.

It wasn't really what they wanted, though, because they realized that people would just reproduce outside of marriage.

So their next idea was what they called segregation. The idea was to get people who were deemed unfit institutionalized during their reproductive years, particularly for women, keep them there, make sure that they didn't reproduce.

… [Th]e problem was that it would be really expensive to segregate, institutionalize, the number of people the eugenicists were worried about … you couldn't put 15 million people in institutions. They understood that it just wasn't economically feasible. So their next idea was eugenic sterilization.

And that allowed for a model in which they would take people in to institutions, eugenically sterilize them, and then they could let them go because they were no longer a threat.

So that's why eugenic sterilization really became the main model that the eugenicists embraced and that many states enacted laws to allow.”

Not only was the sterilization involuntary, but many times the women involved were not told they were being sterilized. They may have been told they were having an appendectomy instead so, as Cohen put it, “that just compounds the horror of the situation.”

The Tragic Supreme Court Ruling That Led to 70,000 Sterilizations

It seems unthinkable that a judge could deem a person unfit to procreate and then rule for that person to be forcibly sterilized, but this is a sad example of reality — and it occurred in the U.S.

In what is often described as one of the worst Supreme Court decisions ever made, a ruling upheld a statute in the state of Virginia allowing mentally deficient “imbeciles” or “feebleminded” people to be sterilized. The case is the focus of Cohen’s book, and follows the so-called “test case” of Carrie Buck, which he described in detail to NPR.

While other states were already forcibly sterilizing residents, Virginia set up a test case to determine if doing so was constitutional.

The woman was being held at the Colony for Epileptics and Feebleminded, an institution where the state was grouping the growing number of people deemed to be mentally deficient (which really could be anyone and everyone). Buck was being raised by a foster family and was a victim of sexual assault, which left her pregnant.

Her foster parents asked for the hearing to have her sterilized and testified that she was epileptic and feebleminded, even though she’d never had a seizure and was doing well in school until they pulled her out to do work around their house.

As it turned out, her birth mother was also considered to be a “feebleminded” inmate at the colony, and they were hoping to prove that Buck’s child was also feebleminded, so they could show a “genetic” connection.

‘Three Generations of Imbeciles Are Enough’

Cohen described how the case went down. Buck never had a chance.

“ … [T]hey give her a lawyer who is really not a lawyer for her. It's really someone who had been the chairman of the board of the colony and was sympathetic to the colony's side.

And they have a bit of a sham hearing where she's determined to be a suitable person for sterilization. They vote to sterilizer her. And that is the order that then gets challenged by Carrie as the plaintiff, first in the Virginia court system and then in the Supreme Court.

… So Carrie Buck loses the case in the Supreme Court. The Court upholds Virginia's right to sterilize her. And [Justice] Oliver Wendell Holmes [wrote the majority opinion] … He had this famous phrase that is reverberated over the generations, ‘[T]hree generations of imbeciles are enough.’

And by that, he meant Carrie Buck's mother, Carrie Buck and Carrie Buck's daughter … there were actually very precise categories of mental defect at that time. And the lowest category was idiot, the middle level was imbecile and the highest level was moron.

Carrie and her mother were both determined by the colony after extensive, you know, unreliable testing to be morons. But Oliver Wendell Holmes actually, you know, demoted them in his decision and called them imbeciles, which was a lower category.”

The ruling then went on to not only state that the Virginia law was constitutional, but that more eugenic sterilization should occur across the U.S.

More than 60,000 Americans were sterilized due to the ruling, and it was also used by Nazi scientists charged with crimes against humanity in their defense during the Nuremberg trials after World War II.2

The Case of Jacobson v. Massachusetts

In the 1905 legal case of Jacobson v. Massachusetts, Swedish immigrant Henning Jacobson objected to a Cambridge, Massachusetts, Board of Health law requiring all adults to get a second smallpox vaccination or pay a $5 fine.

He and his son had suffered severe reactions to previous smallpox vaccinations, so he argued that he was genetically at higher risk of being injured or killed if he were vaccinated again.

He also testified that the vaccine ingredients were toxic and noted that medical doctors could not predict who would be harmed.

He also said that requiring revaccination would violate his 14th Amendment right to liberty and equal protection. The court ruled against him, so Jacobson, rather than paying the $5 fine, appealed to the U.S. Supreme Court. Fisher wrote:3

“It was a mistake that led to one of the most unethical and dangerous legal decisions in American jurisprudence.

In a split decision with two dissenting votes, the Court majority, including Oliver Wendell Holmes, said that citizens do not have the right under the U.S. Constitution to be free at all times because there are ‘manifold restraints to which every person is necessarily subjected for the common good.’

They said that state legislatures have the constitutional authority to enact compulsory vaccination laws and exercise police power to restrict or eliminate liberty during smallpox epidemics to ‘secure the general comfort, health and prosperity of the state.’”

What is often not connected, however, is that this case was also used in support of Buck v. Bell, with Holmes chillingly declaring, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”4

The Birth of Informed Consent

It wasn’t until 1947, at the Nuremberg trials after World War II, that the idea of informed consent took hold. Fisher explained:5

“Utilitarianism was discredited as a pseudo-ethic in 1947 at the Doctors Trial at Nuremberg after World War II. The horrifying truth about what can happen when utilitarianism is used to create public health law was exposed for the whole world to see and gave birth to the informed consent principle articulated in the historic Nuremberg Code.

The next year, basic human rights that include autonomy and freedom of thought, conscience and religious belief were affirmed in the Universal Declaration of Human Rights.

Ever since, informed consent to medical risk-taking has been the central ethical principle guiding the ethical practice of modern medicine — except that public health officials and doctors giving vaccines in America today don't want to respect that ethical principle.”

Does Informed Consent Still Exist?

To this day, Jacobson v. Massachusetts is still cited by attorneys looking to alter state public health laws, particularly those that give states more power during public health emergencies, including taking away Americans’ right to make voluntary decisions regarding vaccination.

If your healthy unvaccinated child has been kicked out of school while sick vaccinated children are allowed to stay — or if you have been fired from your job because you said ‘no’ to getting a flu shot — look no further than Jacobson v. Massachusetts,” Fisher explained.6

Likewise, credit Jacobson v. Massachusetts for the new rule that allows the U.S. Centers for Disease Control and Prevention (CDC) to detain a person exhibiting certain infection symptoms such as fever, headache, acute gastroenteritis (abdominal cramps, loose stools or vomiting), and also strengthens federal surveillance of travelers for non-quarantinable diseases like measles, pertussis and meningococcal disease.

While proponents are touting the changes as necessary to protect the public health, critics have been arguing since the CDC first published the Notice of Proposed Rule Making (NPRM) in August 2016, that it is an example of government overreach, which poses a risk to health and civil liberties.7 Even in 2017, your right to informed consent continues to be attacked.

[+]Sources and References [-]Sources and References

  • 1 NPR March 24, 2017
  • 2 Democracy Now March 17, 2016
  • 3, 4, 5, 6 NVIC November 2, 2016
  • 7 CDC to Amend Public Health Service Act