BACK TO THE FUTURE - 1905 MANDATES

I wrote this last October prior to the U.S. Supreme Court contradictory rulings on the OSHA and CMS vaccine mandates.

BACK TO THE FUTURE - 1905 MANDATES

“History for most people starts the day they were born”.   “If we do not know history, we are doomed to repeat it”.  It can be amusing, but more often, frightening to observe our political, medical, and educational elites arrogantly and with unconstrained hubris making decisions for the rest of us that history predicts will not turn out well. These thoughts and quotes were coming to mind as I recently went back in time and reviewed the history of medication and vaccine development leading to FDA approvals.

This review was inspired by all the chaos and rancor brought about by vaccine mandates and the pushback by all those who have so much to lose if they choose to not take the mRNA shots.  It should not be overlooked that vaccine mandates in earlier times of our history have taken place with an FDA and CDC  that seemed to be less political and more vigilant in regards to adverse events from administration of drugs.  The threshold for stopping the production and marketing of a vaccine was very low if there was evidence for injury or death.

However, they did not always get it right and the history of safety pronouncements by health authorities, including the FDA and CDC, is not a sterling example of accuracy and truth.  Thousands of lives have been lost and many more thousands adversely affected as a result of implicitly trusting the so-called health experts.

Think of all the chemicals and substances that have been pronounced safe during the past 100 years:  lead pipes, lead in paint, cigarettes, asbestos, glyphosates, heroin, thalidomide.  The list goes on.  The Yale School of Medicine did a study and found that approximately 30% of drugs approved between 2001 and 2010 were found to have major safety issues that were discovered at a median of 4.2 years after they were made widely available to patients.  Problems were more common among drugs that were granted “accelerated approval”.

The CDC has published a report titled Historical Vaccine Safety Concerns and in it mentions contaminated polio vaccine led to 40,000 cases of polio caused by the vaccine. 200 children were left paralyzed and 10 died (“Cutter Incident”, 1955).  In the 1970’s, swine flu vaccine had been administered to 40 million people when the mass vaccination was stopped as it became apparent 1 person for every 100,000 vaccinated developed Guillain-Barre Syndrome (GBS).  They stopped the mass vaccination for swine flu due to a 0.001% increased risk for GBS.  Compare that with the estimated risk of myocarditis and pericarditis in people under age 40 who received either the Moderna, Pfizer, or J&J shots.   

In a recent Canadian study, the risk for myocarditis following mRNA shots was between 0.1% and 1.0%, i.e. between 100 and 1000 times higher than the swine flu GBS experience.  Myocarditis in a young person is not a benign process!  Why is the CDC frantically pushing for young Americans, including children, to be “vaccinated” with these mRNA shots when their risk of dying from the Covid virus is much less than the risk of the shots?  Johnson and Johnson now acknowledges their “vaccine” can cause GBS but the drug has not been withdrawn and, in fact, they are promoting their booster.

So this now brings us to the vaccine mandates and how all this got started.  Early last year (2020), governor Newsom of California placed gathering restrictions on houses of worship.  A lawsuit ensued (South Bay Pentecostal Church v. Newsom) and the U.S. Supreme Court declined to enjoin (prohibit) California’s restrictions on churches in a 5-4 vote.  No reasoning was given in the unsigned majority opinion.

However, Justice John Roberts wrote a brief opinion that counseled deference (obedience) to the government (Newsom) during this public health crisis.  Roberts cited the 1905 smallpox mandate case (Jacobson v. Massachusetts) once during that opinion piece.  Soon, the South Bay concurrence (opinion piece) would become a “super-precedent” and in the following 6 months was cited in 140 cases.  Now, it is difficult to read or understand the legal basis for vaccine mandates without understanding Jacobson.

The 1905 Supreme Court decision upholding a state mandate for smallpox vaccination (Jacobson v. Massachusetts) is often cited as the precedent to justify a federal mandate requiring Covid-19 vaccination. The ruling in that case was very narrow and stated that Mr. Jacobson could either take the smallpox vaccine or pay a $5.00 fine (equivalent to approximately $140.00 today). One can not read about vaccine mandates, including the current intrusive Covid mandates, without citation back to the 1905 Supreme Court decision.  Jacobson has been referred to and cited numerous times over the past 100 years in cases as diverse as forced saluting of the American flag, limiting religious exemptions, gun control, voting rights, abortion (Roe v. Wade) and restrictions on church gatherings.  Jacobson is everywhere!                                                                                                                                                                                      

Perhaps most notorious and objectionable, Jacobson’s reasoning was the basis for Justice Oliver Wendell Holmes’ 1927 decision in Buck v. Bell, which allowed compulsory sterilization of intellectually impaired individuals.  The 1905 Jacobson ruling is the only case cited as precedent in that opinion.  In Buck v. Bell, Justice Holmes and the Supreme Court upheld Virginia’s eugenics law which mandated involuntary sterilization of cognitive challenged people referred to as “imbeciles”.  The vote was 7-2.  Holmes equated government-compelled sterilization to government-compelled vaccination.  Holmes wrote:  “the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”  Thus, in this single sentence, Holmes expanded the scope of Jacobson beyond its narrow boundaries to support forcible intrusions onto body autonomy.

The prevailing coercion for mandatory vaccination is equally as disgusting and objectionable as the Holmes ruling was for sterilization.  In the current iteration of the legal interpretation of the 1905 Jacobson case, our government and corporate “leaders” have cast the unvaccinated as the “imbeciles” and rather than castration or cutting of Fallopian tubes, they have stipulated the dystopian choice of either loss of employment or involuntarily taking an “accelerated approval” novel drug.  (As an aside, rather than financial devastation, some might prefer the Justice Holmes legal remedy.)

Jacobson reasoned that vaccine mandates are a part of the general power of states to protect public health, safety and morals, powers that were only limited (at that time) by a constitutional prohibition against “arbitrary” action. If a governmental enactment bore a “real and substantial” relationship, to use Jacobson’s terms, to the end it sought to achieve, the enactment (of the mandate) would survive review.

Thse current federal mandates do not and will not achieve the ends sought by government.  Those ends, as required by previous vaccines and mandates, are to stop infection and transmission of the virus and achieve herd immunity and ultimately eradication of the disease.  That was true for smallpox, measles, mumps, and rubella as the effectiveness of those vaccines approach 100% in reaching those goals.

The mRNA “vaccines” have not kept the promises of 90-95% effective made in December, 2020.  Effectiveness of the Pfizer shots is down to less than 20% after 6 months in various studies.  The Pfizer drug was “approved” faster than any prior vaccine and was based on approximately 2 months of safety data rather than 2 years as was the trial design.  There was no formal and customary FDA advisory committee meeting prior to approval and the control group was eliminated by offering the shots to the control group participants.

Furthermore, in the Jacobson court ruling, Justice Harlan recognized that a vaccine mandate could not be enacted based on pretextual  (dubious) motivations and the mandate could not be enforced in an arbitrary fashion against particular persons.

In regards to the “pretextual motivations,” Harlan explained the courts would need to disallow the mandate if the effect of the mandate did not protect the public health.  It is now widely known as a result of observational data, clinical trials, and admission by the CDC that the mRNA shots do not prevent infection or transmission of the Covid-19 virus.  The pretext for the Covid mandate is not fulfilled by the means to achieve the ends.

The proponents of these inoculations are only left with advocating for a reduced severity of disease and perhaps less death.  But even that is debatable in some populations.  Israel is 80% “vaccinated” with Pfizer and in September, 2021, they had 130% more cases and 56% more deaths than they had the previous year (2020).  Also, reducing severity of disease without preventing infection or transmission of the virus fits the definition of a treatment and not the historical definition of a vaccine. Vermont and Maine are similarly “vaccinated” and their July - September surge is similar to Israel amongst the “vaccinated”.    

The 2021 infection surges were for the “Delta Variant”.   We now have the “Omicron Variant” infecting virtually everyone and illustrates the ineffectiveness of the genetic “vaccines”.  However, those people who are recovered from prior Covid infection appear to be mostly immune.

Regarding the “arbitrary” fashion of applying the mandate against particular persons, Justice Harlan wrote:  the enforcement power of the state cannot be “exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner.”  Hospital workers are “particular persons” and enforcement of the mandate against them will not protect the public health or the public safety.  As the CEO of a local hospital stated in her mandate announcement video, there has been no confirmed case of hospital staff infecting a patient with Covid-19 since the start of the pandemic in 2020.

Paradoxically, the mandate may well result in worsening of public health and public safety due to the loss of well-trained and experienced ER and critical care hospital staff who resigned or will be fired due to refusing the mRNA injections.  The majority of these hospital employees and medical staff members worked throughout the pandemic in 2020 and 2021 and have natural immunity.  To now mandate they submit to an experimental drug they do not need is nothing short of bureaucratic persecution for noncompliance and has nothing to do with immune status and public health.  It begs the question: what is more important, “vaccine” status or immune status?

Hospitals have already been replacing nurses and other staff with out-of-town “travelers” - expensive replacements, often less experienced and less skilled with no connection to our community.  All of this has been imposed upon nursing and other staff shortages that existed prior to the pandemic.  Thus, enforcing the mandate against these employees should be considered arbitrary and unreasonable.

But mandating that a person take a vaccine is only half of the issue.  The other half is what happens if a person refuses the vaccine and what alternatives are there to the vaccine?  Mr. Jacobson had to pay a $5.00 fine.  In the case of measles, mumps, and rubella vaccination mandates, the CDC allows diagnostic testing for antibodies to the virus (IgG) or proof of prior infection as an alternative to vaccination (CDC.gov, 2013).

Prior to the 2020 politicization of the CDC, natural immunity was recognized for the immunity gold standard that it represents.  In the Jacobson majority opinion, Justice John Marshal Harlan wrote “so long as there was a reasonable fit” between the measure adopted, and the government’s interest to promote public health, the law was valid.  A choice between a coerced unconventional and poorly effective “vaccination” or the loss of one’s life, liberty, and pursuit of happiness does not appear to be a “reasonable fit”.  There is no proportionality in the legal remedy being considered.  By the standard expressed in the often quoted Jacobson case, the current vaccine mandate would not be held valid.

During the past 100 years, the Jacobson ruling has been tortured and contorted and applied to many diverse legal conflicts, the net result of which is to justify an expanded view of federal and state government power.  It has been described as an “escape hatch” from the Constitution.  It should not be forgotten that Jacobson did not federalize vaccine mandates, but rather, explained the legal boundaries of a state mandate in order to not trample upon rights guaranteed by the Constitution.   

During 2020 and 2021 we have seen and experienced the effect of a Jacobson assault (and its contemporary amplification by Justice Roberts) upon our Constitutional rights and protections in the realm of lockdowns, mandates, masks, church gatherings and other freedoms of association.   With the replacement of Justice Ginsburg with Justice Barrett on the Supreme Court last year, it is hoped we will be returning to a more Constitutional interpretation of the Free Exercise and Due Process laws.   Federal and state governments, local health departments, corporate and physician leadership may soon understand that the occasion of a pandemic or other health crisis does not suspend Constitutional rights, freedoms, and liberties.

Jack C. Askins, M.D.

October, 2021