On the Ethics of Compulsory Vaccination

Note (September 18, 2021): Since publishing this blog, I have published blogs explaining more in-depth the precedent behind Buck v Bell and its impact. See The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes for a discussion concerning Jacobson v Massachusetts (1905). For a discussion about the phenomenon of biofascism, see Biden’s Biofascist Regime.)

If I have a deep puncture wound, I will get a tetanus booster. If I am bitten by a rabid bat, I will get a rabies shot. Others may get any vaccinations they wish. That includes my own children. I make criticisms of vaccines, of course; I am a rational person who is capable of reading scientific research, and there are many problems with vaccines. Moreover, I am critical of the pharmaceutical industry in the same way I am critical of the fossil fuel industry or any other industry. I am not a religious person; I do not have faith in these institutions. The burden rests on them to demonstrate the safety and efficacy of their products. But I am not principally opposed to vaccination.

Illustration depicting compulsory vaccination drive in New Jersey circa the 1880s (for small pox).

In other words, I am not anti-vaccination or an “anti-vaxxer,” as vaccine skeptics are called. Of course, MedicalNewsToday would like people to think of vaccine skeptics as such. “‘Anti-vaxxer’ refers to people who disagree with the use of vaccines for a variety of reasons,” the website asserts. “For example, some view vaccines as an infringement on their human rights.” To be sure, vaccination per se is not an infringement on human rights. Indeed, if a vaccine is acceptably safe and effective, it is arguably a violation of human rights to deny them to people who want or need them. Where vaccination runs afoul of human rights is when it is compulsory or mandatory. So it depends.

The problem with mandatory vaccination is in the act of compelling people against their will to be vaccinated. Following the Nuremberg Code, I include in my understanding of involuntary participation in vaccination programs any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion. This covers making government benefits or employment in the public or private sector depend on vaccination. These are forms of coercion. I am well aware that there are ethicists who object to my appealing to the Nuremberg code to oppose mandatory vaccination. It’s not that I ignorant of or don’t understand their arguments. It’s that I disagree with their conclusion that compulsory vaccination is compatible with Nuremberg.

The error these ethicists make is in their understanding or depiction of the character of scientific research. The objection that vaccination is not medical research is an absurd denial of the obvious: vaccination, along with every other medical intervention, is and always will be ongoing medical experimentation. Science is never settled. Most vaccines are perpetually in development. Vaccines always carry health risks, potentially serious ones. The benefit and efficacy of most vaccines is and will remain highly variable. This is true for coronavirus and influenza vaccines. Nuremberg requires that, in medical research, the voluntary consent of the human subject is absolutely essential. Every person has a right to refuse to participate in ongoing medical research.

Nuremberg is based on the principle of personal sovereignty—the right of the person to determine what will happen to his or her body. Consider compulsory sterilization, a historic practice especially appropriate to this discussion because compulsory vaccination was used as the justification for compulsory sterilization in the Supreme Court case Buck v. Bell (1927). The decision, authored by Justice Oliver Wendell Holmes, Jr., upheld a state statute permitting compulsory sterilization of the “unfit” “for the protection and health of the state.” Holmes writes: “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for 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.”

The principle that the state can do what it will to individuals for the state’s sake is a dangerous notion. The principle could be used to force abortions (there are too many people, or people of a particular kind)—or prevent them (there are not enough people, or people of a particular kind). As free persons, we do not live for the state. We don’t even live for other people. A dozen individuals die everyday in the United States, some of them children, for lack of a healthy kidney, yet we do not conduct lotteries to identify citizens who two healthy functioning kidneys and remove one of them. It does not matter how relatively painless or safe the procedure is.

If a person wishes to be vaccinated, then they can have some peace of mind that they will be protected from infection or disease. But they may not wish that I be vaccinated. Or, rather, they may wish it, but they mustn’t be permitted to compel it. The objection that there are some who cannot be vaccinated and thus need me to protect them only takes us back to the child dying of a dysfunctional or diseased kidney. Tragic as this may be, the state may not use my body to affect the child’s fate. You may tax me to pay for dialysis or a new kidney. You may not remove a kidney from my body against my will.

When objections to compulsory vaccination are covered in the media, one often sees accompanying the stories images such as the one I share below. But those signs are accurate. Vaccines can cause injury and death. Vaccines are unavoidably unsafe (of course a lot of things are and we do them anyway). Compulsory vaccination does violate bodily autonomy. One sees in the opposition to public statements of fact that the anti-vaxxer smear is not a label assigned to people who call for the abolition of vaccines, but a term delegitimizing any person who is skeptical of the claims made by governments, physicians, and pharmaceutical corporations or who asserts personal sovereignty as protection from compulsory vaccination. But, as my own example shows, vaccine skepticism and appeal to human rights is not an anti-vax position.

How anti-vaccine activists are using COVID-19 to boost their movement |  Spectrum | Autism Research News

Almost two decades ago, Wired Magazine published an article by Elliot Borin titled “Forced Vaccines Haunt Gulf Vets.” It led off with this sentence: “Rule No. 1 in the Nuremberg Code for conducting medical experiments: Get the subjects’ consent. But many Gold War soldiers were told, not asked, to take non-FDA-approved drugs—and now suffer from a host of health problems.” The qualifier, “non-FDA-approved” is unnecessary. The FDA is a regulatory body established by progressive policymakers who assumed to legitimacy of corporate governance. The FDA is the paradigm of regulatory capture. Whether the FDA approves or doesn’t approve a drug has no bearing on the ethics of compelling persons to participate in medical research. Besides, it’s not as if the FDA hasn’t disapproved medicines it previously approved.

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Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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