Legal Considerations for CoVID-19 Vaccine Mandates
/I want to talk about locally relevant legal aspects of vaccine mandates.
But first I want to say that I am not a lawyer. I never spent a day in law-school although I have spent a few days in a law library, and too many days in court-rooms.. I never had lawyers teach me what they thought other lawyers should know.
Second I want to say what Law is. Law comes from God, and He has written it on everyone's heart. We all know it. Do not steal. Do not lie. Do not use force against anyone, unless in self-defense. Respect everyone's individuality and freedom of conscience. Do not murder. Law is, actually, very simple.
We hire people who tell us they are better qualified than we are to write law. Maybe to fill in blanks left in the application of God's Law. We install them in fancy buildings and pay them a lots of money We hire other people to interpret what they write, because they like to make it complicated. We hire others to enforce it, because we are scared to do it ourselves. All these people's livings depend on making the law, which we just agreed was really simple, seem complicated, and scary. We must remember Who created the concept and the basic principles of Law, and we must remember that nothing anyone writes, even if they threaten to lock you up or shoot you for ignoring it, is really LAW unless it conforms with His Law.
Third is that if all the artificial complexity were not enough, nearly anyone can probably think of an instance where the very people whom we hire to work at the law or enforce it or whose jobs are created by it, broke it. Or lied about it, And got away with it. I am writing to place myself, and to give everyone reading this the opportunity to place themselves, on the side of the Law, whatever anyone else, who may have interests other than the truth, the sacredness of the individual and his conscience, and life, may say.
First consideration: While at the time of this writing, only Pfizer’s Comirnaty vaccine as been FDA approved. The remaining are still technically investigational drugs, not fully approved, so their use constitutes medical experimentation. Medical experimentation on humans is regulated by among others International law, including the Nuremberg code on medical research
From the Nuremberg Code:
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 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. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment. The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.
The “voluntariness” requirement absolutely and conclusively rules out any mandatory program.
7 . Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury disability or death.
There is a federal program called the National Vaccine Injury Compensation Program, but it does not cover the COVID vaccines. Countermeasures Injury Compensation Program requires overwhelming evidence to support a claim under a non-transparent administrative process, has yet to pay any claims related to COVID vaccines, and has a a staff of seven. Safe to say that this requirement is not met.
9. During the course of the experiment, the human subject should be at liberty to bring the experiment to an end, if he has reached the physical or mental state, where continuation of the experiment seemed to him to be impossible.
10. During the course of the experiment, the scientist in charge must be prepared to terminate the experiment at any stage, if he has probable cause to believe, in the exercise of the good faith, superior skill and careful judgement required of him, that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.
Of course, once the vaccine is injected, there is no way to end the experiment.
From Declaration of Helsinki, most lately revised by the World Medical Association in 2013, (emphases added):
9. It is the duty of physicians who are involved in medical research to protect the life, health, dignity, integrity, right to self-determination, privacy, and confidentiality of personal information of research subjects. The responsibility for the protection of research subjects must always rest with the physician or other health care professionals and never with the research subjects, even though they have given consent.
14. Physicians who combine medical research with medical care should involve their patients in research only to the extent that this is justified by its potential preventive, diagnostic or therapeutic value and if the physician has good reason to believe that participation in the research study will not adversely affect the health of the patients who serve as research subjects.
15. Appropriate compensation and treatment for subjects who are harmed as a result of participating in research must be ensured.
As noted above, no mechanism exists to provide this.
17. All medical research involving human subjects must be preceded by careful assessment of predictable risks and burdens to the individuals and groups involved in the research in comparison with foreseeable benefits to them and to other individuals or groups affected by the condition under investigation.
Measures to minimize the risks must be implemented. The risks must be continuously monitored, assessed and documented by the researcher.
18. Physicians may not be involved in a research study involving human subjects unless they are confident that the risks have been adequately assessed and can be satisfactorily managed.
This is exactly what we are doing today.
Now, these limitations all refer to research. Will consent and other concerns become irrelevant if and after these vaccines receive full approval from the FDA? No, it will not, according to the 2005 Unesco Universal Declaration on Bioethics and Human Rights:
Article 1 – Scope
1. This Declaration addresses ethical issues related to medicine, life sciences and associated technologies as applied to human beings, taking into account their social, legal and environmental dimensions.
2. This Declaration is addressed to States. As appropriate and relevant, it also provides guidance to decisions or practices of individuals, groups, communities, institutions and corporations, public and private.
Article 2 – Aims
The aims of this Declaration are:
(b) to guide the actions of individuals, groups, communities, institutions and corporations, public and private;
(c) to promote respect for human dignity and protect human rights, by ensuring respect for the life of human beings, and fundamental freedoms, consistent with international human rights law;
(d) to recognize the importance of freedom of scientific research and the benefits derived from scientific and technological developments, while stressing the need for such research and developments to occur within the framework of ethical principles set out in this Declaration and to respect human dignity, human rights and fundamental freedoms;
Article 3 – Human dignity and human rights
1. Human dignity, human rights and fundamental freedoms are to be fully respected.
2. The interests and welfare of the individual should have priority over the sole interest of science or society.
Article 5 – Autonomy and individual responsibility
The autonomy of persons to make decisions, while taking responsibility for those decisions and respecting the autonomy of others, is to be respected. For persons who are not capable of exercising autonomy, special measures are to be taken to protect their rights and interests.
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.
The absolute requirement for complete freedom to refuse the intervention does not vanish, if and when the vaccine is fully “approved”.
First, the passages above refer to physicians, or scientists, as being the ones performing medical research or medical intervention. Nobody here would want me or a plumber or accountant prescribing a medical intervention. Is this Board of a Hospital a doctor, or a scientific Board? Are hospital Board members, governors, senators or the President of the United States individually or corporately a recognized research organization, or licensed to practice medicine? If not, then how is it appropriate for these individuals and entities to pass vaccine mandate resolutions?
Second, perhaps the vaccine is not exactly practice of medicine. People who may be affected by a mandate may not be sick and are probably are not seeking treatment. On the most basic and obvious level what does it involve? I think it involves sticking a sharp metal object through your skin. If such a thing is done without the subject's consent, that sounds like a stabbing, which would be covered by, in my state, WV Code §61-2-9. Malicious or unlawful assault; assault; battery; penalties.
(a) If any person maliciously shoots, stabs, cuts or wounds any person, or by any means cause him or her bodily injury with intent to maim, disfigure, disable or kill, he or she, except where it is otherwise provided, is guilty of a felony and, upon conviction thereof, shall be punished by confinement in a state correctional facility not less than two nor more than ten years. If the act is done unlawfully, but not maliciously, with the intent aforesaid, the offender is guilty of a felony and, upon conviction thereof, shall either be imprisoned in a state correctional facility not less than one nor more than five years, or be confined in jail not exceeding twelve months and fined not exceeding $500.
(c) Battery. — Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature to the person of another ….is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than twelve months or fined not more than $500, or both fined and confined.
In case it seems farfetched that “mere” vaccination could legally constitute assault, if the subject is unwilling, administering any drug constitutes assault. In SELL V. UNITED STATES (02-5664) 539 U.S. 166 (2003) 282 F.3d 560 SCOTUS ruled that even a criminal defendant has a legal right to avoid forced medication.
Third, if any recipient of a mandatory intervention suffers bad effects, the entity recommending or requiring the intervention will be subject to civil action for damages. Considering the large number of reports of adverse reactions and the general feeling of juries about large institutions, regardless of any expert testimony in favor of the vaccine or claiming that it cannot be proved to be the cause of the injury, large judgements against the Hospital or even against the Board members are likely. Knowing what I do about insurance companies, any medical malpractice policy that might cover a hospital Board, or its members as individuals, for outcomes of actual medical treatment, will most likely find a way to say, “not covered”.
Fourth, if understaffing results from a Board mandate, not only is the primary mission of patient care imperiled, but the Board becomes liable to civil action for patient neglect or injury caused by the understaffing. Similar liability would follow if less-qualified staff is hired to replace staff that refuses to be vaccinated
Fifth, unilateral modification of terms of employment is breach of contract, for which civil damages can be sought. In this case breach of employment contract, i.e. mandating an experimental drug therapy without support for injuries, would be additionally actionable as a tort, because imposing a mandate would be a willfully negligent act, performed in disregard of applicable contrary evidence and viable alternatives
Sixth, if immunity to COVID becomes effectively a job requirement, then putative lack of it must be considered disability under ADA, therefore the employer has obligation to offer accommodation, as masking, testing, and/or chemoprophylaxis
Seventh, in our local hospital’s Bylaws, in part drafted by myself and Dr. Hare, the section on Ethics states in part:
“Acceptance of membership on the Medical Staff shall constitute the member's certification that he/she has in the past, and agrees that he/she will in the future, abide by the lawful principles of Medical Ethics of the American Osteopathic Association, or the American Medical Association, or other applicable codes of ethics.”
I am certain that other hospitals’ Bylaws contain similar language.
Last, but not least: AMA Principles of Medical Ethics:
1. A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.
We have discussed many rights which would be abrogated by a vaccine mandate.
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3. A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.
We have discussed how vaccine mandates are in conflict with the best interests of the patient as a member of the whole human community.
4. A physician shall respect the rights of patients, colleagues, and other health professionals.
I trust no one would suggest that respect for the rights of other health professionals should include disregard for his or her own.
7. A physician shall recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health.
There is now abundant data which might lead a physician, in his or her professional judgement, to believe that participating in or countenancing, mandatory vaccination might lead to injury to the community, and worsening of public health.
And eighth point, saving the best for last: The US Constitution prohibits any State, therefore any agency of a State which includes this Hospital as agency of the County, from impairing the obligations of a contract... Deprivation of rights (such as the inviolability of a contract) under color of law happens to be a criminal act under Title 18 Section 242 of US Code, and quote,
“… shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section… shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section… shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death. “
Let it be known.
John Leyzorek, Tactical Civics™ – It’s time to think Tactically. Washington DC is at war against America.
Julie Hare, MD, Julie Hare, MD — The Damn Doctor
September 28, 2021