Opting Out: The Moral Right to Religious and Conscientious-Belief Exemptions to Vaccination - Page 2

Author // Barbara Loe Fisher

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Opting Out: The Moral Right to Religious and Conscientious-Belief Exemptions to Vaccination
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Buck v. Bell (1927): A Eugenic U.S. Supreme Court Ruling

In Buck v. Bell,53 attorneys representing Virginia state social workers and doctors convinced the Supreme Court in 1927 that a young woman, Carrie Buck, was “feeble minded” like her mother and should be sterilized.

In a stunning conclusion that endorsed eugenics, Supreme Court Justice Oliver Wendall Holmes revealed the morally corrupt core of the utilitarian “greater good” rationale anchoring medical policies and public health laws lacking strong informed consent protections. Justice Holmes proclaimed:

“It is better for all the world, if instead of waiting to execute degenerate offspring of crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes. Jacobsen v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.”

Carrie Buck, it turns out, was not mentally retarded after all. 54, 55

However, the U.S. Supreme Court’s judicial attack on the human right to individual inviolability and protection of bodily integrity in Jacobsen v. Massachusetts and Buck v. Bell remains part of U.S. law.

Utilitarianism on Trial at Nuremberg

A decade after the ruling in Buck v. Bell that endorsed eugenics, utilitarianism was implemented in its most extreme and tragic form by those in control of the German state during World War II. In a remarkable series of articles written by physician bioethicists and lawyers (and published in a 1996 issue of the Journal of the American Medical Association), there is a description of how physicians in obedient service to a totalitarian state employed the utilitarian rationale to justify committing and defending crimes against humanity. 56, 57, 58, 59

The Doctors’ Trial at Nuremberg, conducted in 1946,60 revealed how medical doctors and government health officials played a leading role in endorsing public policies they believed would cleanse society of individuals the government had decided harmed the public good, including euthanizing physically and mentally handicapped children and adults and those suffering from serious diseases, and conducting experiments on children and adults to advance scientific knowledge for the “greater good” of humanity. 61, 62

The Nuremberg Code (1946)

Out of the Doctors’ Trial in Nuremberg came the Nuremberg Code, of which the late renowned Yale law professor, physician and ethicist Jay Katz has said, “if not explicitly then at least implicitly, commanded that the principle of the advancement of science bow to a higher principle: protection of individual inviolability. The rights of individuals to thoroughgoing self-determination and autonomy must come first. Scientific advances may be impeded, perhaps even become impossible at times, but this is a price worth paying.” 63

In another article, Dr. Katz said that the judges of the Nuremberg tribunal, overwhelmed by what they had learned, “envisioned a world in which free women and men, after careful explanation, could make their own good or bad decisions, but not decisions unknowingly imposed on them by the authority of the state, science, or medicine.”

The first principle of the Nuremberg Code is:

“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, overreaching, 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.” 64

The Nuremberg Code, which was followed by the Declaration of Helsinki in 1964, 65 speaks specifically to the use of human beings in medical experiments that may or may not benefit the individual patient, advancement of scientific knowledge or humanity. However, the informed consent ethic it defines has been adopted by bioethicists, international and U.S. courts, and medical organizations as the basis for the legal right of patients and guardians of minor children to exercise voluntary informed consent to medical procedures that involve a risk of injury or death. 66, 67, 68

Religious Faith and Conscience vs. Utilitarianism

Even if the Nuremberg Code had not reminded us of the need to respect autonomy, there is a strong Judeo- Christian moral tradition that affirms the sacred right to exercise freedom of conscience even if it conflicts with a secular law of the state. The need for the faithful to listen to the “voice of conscience” is a central part of the Protestant religion, with theologians Martin Luther and Soren Kierkegaard affirming freedom of conscience. 69

Conscience is considered so inviolable in Catholic canon that the definition of moral conscience is discussed in detail in the Catechism of the Catholic Church, which holds that:

“Conscience is a judgment of reason whereby the human person recognizes the moral quality of a concrete act that he is going to perform, is in the process of performing or has already completed. In all he says and does, man is obliged to follow faithfully what he knows to be just and right. It is by the judgment of his conscience that man perceives and recognizes the prescription of the divine law.” 70

In even stronger terms, canon law warns that “a human being must always obey the certain judgment of his conscience. If he were deliberately to act against it, he would condemn himself.”

George Annas and Michael Grodin, both bioethicists,

wrote, “Whenever war, politics or ideology treat humans as objects, we all lose our humanity.” Or, as humanitarian and Holocaust survivor Elie Weisel observed, “When you take an idea or a concept and turn it into an abstraction, that opens the way to take human beings and turn them, also, into abstractions.” 71

In any war, whether it be a war using humans armed with guns in an attempt to defeat other humans, or a war using humans injected with vaccines in an attempt to eliminate microorganisms, it is easy for those in charge to view the instruments of that war—human beings— as objects and a means to an end. But the guiding moral tenets of major religions, the teachings of the great philosophers and the most painful lessons of history do not support the dangerous utilitarian approach to implementation of government policy and law.

Autonomy and Protection of Bodily Integrity: A Human Right

Respect for individual autonomy and bodily integrity, which is embodied in the informed consent ethic, is being eroded in America, and it is compromising the once-sacred trust between doctors, patients and parents. It is not in the best interest of Americans for doctors and public health officials in positions of authority to use the heel of the boot of the state to crush all dissent to mandatory vaccination laws and force individuals to jeopardize their health or violate their conscience and deeply held religious beliefs. It also is not in the best interest of those who deeply believe in the utility of using vaccines to be distrusted and feared by those being forced to vaccinate themselves or their children against their will.

It is very hard for people to trust government officials who track and hunt parents and children down to ensure compliance with mandatory vaccination laws that equate chicken pox with smallpox, and hepatitis B with polio. 72 It is terrible when nurses live in fear of doctors who fire them for refusing to get a flu shot; 73 who deny children medical care if their parents don’t give them every government-recommended vaccine on schedule; 74 who threaten parents for refusing to vaccinate their surviving children with the same vaccine that injured or killed another one of their children; and deny prescription medications or Medicare benefits to adults if they refuse recommended vaccines. 75, 76

How can the people believe or want to do what doctors and public health officials say when they live in fear of them?

We, as parents, who know and love our children better than anyone else—we, by U.S. law and a larger moral imperative, are the guardians of our children until they are old enough to make life and death decisions for themselves. We are responsible for their welfare and we are the ones who bear the grief and the burden when they are injured or die from any cause. We are their voice, and by all that is right in this great country and in the moral universe, we should be allowed to make a rational, informed, voluntary decision about which diseases and which vaccines we are willing to risk their lives for, without fearing retribution from physicians employed by the state.

Argue with us. Educate us. Persuade us. But don’t track us down and force us to jeopardize our health or violate our conscience or religious beliefs.

The National Vaccine Information Center will continue to defend, without compromise, the ethical principle of informed consent to medical risk-taking and inclusion of legal exemptions to vaccination for health reasons and for religious and conscientious beliefs in all public health policies and laws.

Preventing Vaccine Reactions and Injuries

To learn more about diseases and vaccines and subscribe to NVIC’s vaccine newsletter, visit To become a vaccine choice advocate in your state and work to protect vaccine exemptions from being eliminated from public health laws, become a user of the free online NVIC Advocacy Portal.

It’s your health. Your family. Your choice.

Pathways Issue 37 CoverThis article appeared in Pathways to Family Wellness magazine, Issue #38.

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