Legal experts refute Nuremberg Code argument around vaccine mandates

Dan Vanderzwaag, a resident of Ottawa County, Michigan, had a question for the county’s Board of Commissioners during its meeting Tuesday.

In a clip that later went viral, he’s heard yelling at members of the board:

“Are you a Nazi?” 

Vanderzwaag was invoking an increasingly frequent accusation among people who oppose Covid-19 vaccine mandates: that they violate a set of medical ethics drafted shortly after World War II known as the Nuremberg Code.

The code — drafted in 1947 during one of the Nuremberg trials that focused on German medical doctors who engaged in human experimentation, torture and mass murder — outlines ethical standards for medical experimentation, including the need for test subjects to voluntarily consent to participating in an experiment.

The theory among some who oppose vaccine mandates is that federal authorities are still doing clinical trials for adults for the Covid-19 vaccines, unbeknownst to the vast majority of people and despite the U.S. Food and Drug Administration having analyzed and authorized the vaccines for emergency use. The FDA on Monday also gave final approval to the Pfizer vaccine. Some opposing the vaccine say forcing people to participate in the “experiment” by getting vaccinated against the virus violates the Nuremberg Code.

During the Marin County Board of Supervisors meeting Tuesday, a public commenter argued:

“The (Centers for Disease Control and Prevention) and the FDA are corrupt. … The latest example being (Monday’s) decision to approve a deadly injection that’s never undergone adequate safety trials. It and the others have killed tens of thousands, maybe more, but that’s not being made public.”

The theory, as professed in social media posts and by media personalities with large followings like conservative commentator Candace Owens, represents a fundamental misunderstanding of why the code was drafted, according to University of California at Berkeley adjunct law professor Eric Stover.

Stover, who is also the faculty director of UC Berkeley’s Human Rights Center, said:

“The Nuremberg Code relates to research where the emphasis of informed consent requirements is on preventing the research participants being used as a means to an end.” 

The theory that the Covid-19 vaccines remain part of a worldwide experiment among non-consenting subjects belies that clinical trials for the three vaccines available in the U.S. began last year, with Pfizer’s phase-three clinical trial including 46,331 consenting participants, according to the pharmaceutical giant.

Pfizer and Moderna have also announced that they will continue to monitor clinical trial participants for the vaccines’ safety and efficacy over the next two years, a standard practice by vaccine developers even after a vaccine has been approved for widespread use.

Stover said:

“I think the point that needs to be made is this research has been done, and that’s where codes of ethics apply. … It’s not when you get a vaccine and it’s gone through the experiment process and has been approved.”

Along with the recently fully approved Pfizer vaccine, the FDA has issued emergency use authorization for vaccines developed by Moderna and Johnson & Johnson.

The FDA is also expected to issue full approval of the Moderna and Johnson & Johnson vaccines in the coming weeks and months.

As some of the most infamous examples of unethical medical experimentation by the United States, Stover pointed to studies like the Tuskegee syphilis experiment and U.S.-led syphilis experiments in Guatemala in the 1940s, in which hundreds of subjects were infected with syphilis without their knowledge or consent to observe the disease’s effects. But he said that trying to apply the Nuremberg Code to the available vaccines is simply confirmation bias among those the distrusting.

He said:

“The Nuremberg Code has no legal standing in the United States. … It is a gesture given by the panel of judges to say, ‘in the future, we can’t have this happen.'”

In the Bay Area, people opposed to vaccine mandates have repeatedly cited the code at public meetings in recent weeks, calling into question the public sector’s legal authority to even enforce such a mandate.

That argument is also unsupported by legal precedent. In 1905, the U.S. Supreme Court ruled in Jacobson v. Massachusetts that local jurisdictions have the ability to enact laws and rules that will protect the health of their citizens.

Earlier this month, the Supreme Court also declined to hear a case against the vaccination mandate for students at Indiana University, a public school.

Stover argued that misinformation surrounding Covid-19 vaccines and their development, and misinformation in general, is a pandemic unto itself.

He said:

“People on social media who read these statements, which are patently false … the issue they need to understand is to step back and check the facts and verify the facts.”  

Stover added:

“Because facts matter, and verification of facts matters even more.”