No Means No: The Child in Vermont Said No, So What Good is the Vermont Supreme Court Ruling?

Analysis of Nudging during COVID19 plus: Major critical analysis of Vermont Supreme Court Decision

During the height of the COVID19 pandemic debacle, suggestive reasoning in advocating for Federal vaccine mandates was used to nudge the unthinkable. This observation is directed at a 2022 article by Fraser and Neuss in the journal Chest. At a time when it was already known that the vaccines failed to prevent transmission, the authors nevertheless attempted to nudge subtly toward a nationalized approach to vaccine mandates without explicitly stating this position. Their approach is easily criticized for its passive-aggressive tone, lack of clarity, and failure to fully engage with counterarguments.

I will argue that via a detailed analysis of the principle of informed consent. I will argue that solicited, explicit, and voluntary agreement before administering medical procedures, particularly vaccinations, without pretext, coercion or presumption, is a basic human right. The Vermont Supreme Court's recent ruling, interpreted by some as allowing schools to vaccinate children without explicit parental consent, is highlighted as an anomalous but significant threat to informed consent and parental rights. In particular, in addition to rights to choose (accept or decline) proferred medical options, this ruling potentially enables the state to enroll children in long-term vaccine safety studies without parental knowledge or consent, contravening ethical standards outlined in 45 CFR 46, the Common Rule, and other federal regulations designed to protect vulnerable populations.

Case examples, such as Murthy v. Missouri (2024) and Medical Professionals for Informed Consent v. Bassett (2023), are used to illustrate the importance of maintaining individual rights and informed consent in public health policies. These cases underscore the necessity for clear legislative frameworks and robust protections to prevent overreach and maintain public trust.

I call for more direct and transparent discussions on vaccine mandates, urging a balanced approach that respects individual autonomy and informed consent while addressing public health needs. The current trend of suggestive reasoning and ambiguous policy advocacy undermines ethical principles and fails to provide a solid foundation for public health strategies.

Fraser and Neuess (2022)

In the contemporary landscape of public health policy, the debate over vaccine mandates is both prominent and contentious. The article "Who Calls the Shots? A Legal and Historical Perspective on Vaccine Mandates" by Eric M. Fraser and Michael J. Neuss navigates this debate through a in-pandemic context passive-aggressive tone that subtly advocates for a more centralized approach to vaccination mandates without overtly stating it.

Fraser and Neuss employ suggestive reasoning to guide readers toward the notion that a nationalized response to vaccination could be beneficial. However, while effective in some contexts, this technique obscures their true stance, leading to a lack of clarity and directness that the public deserves on such a crucial issue. For example, the authors' discussion of historical precedents and legal nuances implies support for centralized mandates but stops just short of explicitly endorsing this position.

Clear and transparent communication is essential in public health policy, where the stakes are high, and the implications of ambiguity can be significant. The authors' hedging statements and implied positions dilute their message, undermining the potential for robust public debate and leaving readers without a definitive understanding of their stance.

Moreover, the absence of explicit conflict of interest (COI) disclosures raises questions about the impartiality of their analysis. In an era where trust in public health decisions is paramount, any perceived bias or hidden agenda can erode public confidence. Readers have the right to expect a dispassionate and objective examination of the issues, free from undisclosed influences.

Suggestive Reason as Weak Rhetoric

While suggestive reasoning can be an effective rhetorical tool, its use in the Fraser and Neuss article raises several concerns. The lack of clarity and directness, reliance on controversial and incomplete legal precedents, and failure to explore counterarguments undermine the strength of their argument and the quality of the public discourse. Any earnest discussion of individual rights deserves more than nuance and nudging by indirect inference.

Notably, while alleging to report on the history of informed consent, the authors cut a wide path to avoid referencing the lynchpin historical, eugenic and legal precedent Buck v. Bell (1927). The case upheld the constitutionality of forced sterilization laws for individuals deemed "unfit" to reproduce. Justice Oliver Wendell Holmes Jr., writing for the majority, infamously declared, "Three generations of imbeciles are enough." This fact underscores the dark underpinnings of vaccine mandates: it provides a terrible justification for contemporary policies and laws. This decision, widely condemned as an atrocity, is a stark reminder of the dangers of coercive public health measures. Portaying their paper as a walk through the history of informed consent but avoiding such a key precedent without acknowledging their contentious nature and ethical implications is a significant oversight.

Furthermore, the authors' suggestive reasoning leaves little room for exploring counterarguments. For instance, the principle of informed consent for adults and informed permission for children is fundamentally a state-rights issue. This decentralized approach allows for a diversity of laws, policies, and responses, preventing groupthink and enabling the nation as a whole to learn from different state-level experiments. Such a system promotes innovation and can provide valuable insights that a monolithic national policy might overlook.

The authors' failure to fully engage with these counterarguments is a significant oversight. Instead, they imply that the current patchwork of mandates is merely a temporary solution until a more centralized system can be developed. This perspective dismisses the value of state-level autonomy and presumes a level of authority that the authors do not possess. Their language of "we can sew together a broader patchwork of mandates" implicitly grants them undue authority to direct national policy: rationality demands, at the least, an acknowledgement of exemptions. Their article mentions none.

While suggestive reasoning can subtly guide readers toward a desired conclusion, its use in this article results in ambiguity and missed opportunities for robust debate. The public deserves clear, transparent, and balanced discussions on vaccine mandates. Addressing these issues directly and considering a range of perspectives will lead to a more informed and effective public discourse. Journal editors should advocate for a more honest, balanced and comprehensive discussion on important topics like vaccine mandates, one that respects both the complexity of the issue and the intelligence of the public.

Lingering Threats to Informed Consent

Informed consent is a cornerstone of ethical medical practice. It ensures that patients or their guardians fully understand any medical procedure's risks, benefits, and alternatives before agreeing to it. This principle is particularly critical in the context of vaccination, where mandates can sometimes conflict with personal autonomy and individual rights.

A recent case in Vermont highlights significant threats to informed consent within the framework of vaccine mandates. In this case, the parents of a student who was mistakenly given a COVID-19 vaccine against their wishes brought a lawsuit against the state of Vermont and the Windham Southeast Supervisory Union. The incident, which occurred due to a name tag mix-up at a vaccination clinic, led to claims of negligence, fraud, and "battery of a minor" (VTDigger). Although the lower court initially dismissed the case citing the federal PREP Act, which provides immunity to those administering public health measures during emergencies, the Vermont Supreme Court was asked to re-examine the application of this act and its implications for informed consent.

The Vermont Supreme Court Ruling has implications for informed consent and parental rights. It has been interpreted by some online as allowing schools to vaccinate children without explicit parental consent. This raises profound ethical and legal concerns. This decision means that parents, without any prior notification or solicitation, must proactively send refusals of permission to vaccinate to schools. This approach is fundamentally backward compared to the established requirement that physicians obtain informed permission from patients or their guardians.

More importantly, there's no evidence that it's going to work. The child in question in the case actually proactively refused the vaccine but it was administered (one assumes by force) anyway. The parents were not only denied the right to informed permission, but the child was also denied their right to withhold assent.

Given the continuous study of vaccines for long-term safety, this ruling is particularly troubling.

VSC’s Reversal of Informed Consent

Informed consent is a foundational principle in medical ethics and legal frameworks, ensuring that individuals or their guardians are fully informed about and voluntarily agree to medical procedures. The Vermont Supreme Court's recent ruling against parental rights effectively reverses this principle, placing the burden on parents to proactively refuse consent rather than requiring schools and medical professionals to obtain, i.e., solicit, explicit parental permission. This potential shift undermines the ethical obligation of healthcare providers to ensure that patients or their guardians understand the risks, benefits, and alternatives of any medical intervention before it is administered.

Ethical and Legal Standards

The rights for parents to have the final say on their children’s medical care options is paramount to informed consent for medical care. With vaccines, however, there is another layer: human subject research. There are no randomized clinical trials of long-term vaccine safety, and, specifically, pharma negotiated reliance on retrospective studies after whole-population vaccination. Every person, vaccinated or not, then are part of an uncontrolled experiment on long-term vaccine safety.

The requirement for informed consent for human subjects research is enshrined in federal regulations, such as the Common Rule (45 CFR 46), which outlines the ethical principles and guidelines for research involving human subjects. According to 45 CFR 46, special protections are provided for vulnerable populations, including children, to ensure that their participation in research is conducted ethically and with appropriate oversight. The Common Rule mandates that informed consent must be obtained from the parents or guardians of children participating in research, ensuring that they are fully aware of the nature and risks of the study.

Furthermore, 45 CFR 46.116 details the general requirements for informed consent, emphasizing that information must be presented to facilitate understanding and that the process must minimize the possibility of coercion or undue influence. This federal regulation underscores the importance of voluntary participation and informed decision-making, principles that are compromised by the Vermont Supreme Court's ruling.

Most relevant to Vermont, Title 45 of the Code of Federal Regulations (CFR) Part 46, Subpart D provides guidelines for conducting research involving children, including requirements for obtaining parental permission and child assent. It emphasizes minimizing risks and ensuring that the research is ethically justified and appropriate for the child in question, which in the case of vaccination is continuously in question given the uneven distribution of risk of vaccine injury.

Long-Term Safety and Ethical Concerns

Vaccines are continuously studied for their long-term safety, and it is crucial that parents are fully informed about the potential risks and benefits before consenting to their children's vaccination. The Vermont ruling not only bypasses this critical aspect of informed consent but also raises the alarming possibility that the state could enroll children in long-term vaccine safety studies without parental consent or even knowledge. This scenario is ethically untenable and violates the principles of respect for persons and justice as outlined in the Belmont Report, a foundational document in the ethics of research involving human subjects.

Legal Precedents and Protections in Opposition to Vermont Supreme Court Position

The Vermont Supreme Court's decision stands in stark contrast to legal precedents that emphasize the protection of individual rights and informed consent. For instance, in Murthy v. Missouri (2024), the court protected First Amendment rights against government overreach, highlighting the importance of individual autonomy and informed decision-making. Similarly, in Medical Professionals for Informed Consent v. Bassett (2023), the court ruled against a state vaccine mandate, underscoring the need for rational and evidence-based public health policies that respect individual rights.

The Vermont Supreme Court's ruling represents a significant departure from established ethical and legal standards for informed consent. By placing the onus on parents to refuse permission proactively, the ruling undermines the foundational principle that medical interventions, especially those involving children, should only proceed with explicit and informed consent. Given the ongoing studies of vaccine safety and the potential for long-term effects, it is imperative that parental rights and informed consent are rigorously upheld. This decision not only jeopardizes the trust between parents and the healthcare system but also contravenes federal regulations designed to protect vulnerable populations. A reevaluation of this ruling is essential to align it with ethical standards and legal protections for informed consent.

The tension between public health mandates and individual rights cannot be resolved by assertions of needs for homogenization. Experience with reality illustrates how vaccine mandates, when not carefully implemented, erode the trust in the healthcare system because they infringe upon the autonomy of patients and their guardians. The principle of informed consent requires that patients be fully informed and voluntarily agree to medical procedures, which is particularly important in vaccination, where the intervention is preventive and administered to healthy individuals.

The particularly controversial aspect of the Vermont case, that it might be interpreted as allowing schools to vaccinate children without parental consent, raises significant concerns about the erosion of parental rights and the potential for similar incidents to occur without adequate legal recourse. It emphasizes the need for clear and stringent guidelines to ensure that informed consent is always obtained, particularly for minors.

The contrast of recent rulings, such as in Biden v. Missouri, also emphasizes the importance of legislative clarity and whether legislated authority exists for the implemention of public health mandates. The Supreme Court struck down the Biden administration's OSHA mandate, which required large businesses to enforce a vaccine-or-test rule, on the grounds that such sweeping decisions should rest with elected officials rather than unelected bureaucrats.

The spade of recent cases collectively highlights the importance of safeguarding informed consent and ensuring that public health policies are implemented transparently and with respect for individual rights. They call for a balanced approach that protects public health while upholding the ethical principles of medical practice.

While vaccine mandates aim to protect public health, it is clear that SCOTUS understands they must be carefully balanced with the need to respect individual autonomy and informed consent. Mandates without exemptions overstep these boundaries, underscoring the need for clear legislative frameworks and robust protections for patient rights. Legal scholars and legislative bodies must addressing these issues directly, or we will never foster a more ethical public health strategy.

Fraser and Neuss’s Lack of Exploration of Counterviews

One notable deficiency of Fraser and Neuss’s article is the lack of exploration and engagement with counterarguments. In a balanced and comprehensive discussion, it is essential to consider opposing viewpoints to provide a well-rounded perspective and avoid groupthink. This section will highlight the importance of including counterviews and provide examples of overlooked counterarguments.

Importance of Counterviews in Rational Discourse

Exploring counterarguments is crucial in any public policy debate, especially one as contentious as vaccine mandates. It ensures that all aspects of the issue are considered, which can lead to more robust and resilient policies. Ignoring opposing perspectives can create an echo chamber, limiting the scope of the discussion and potentially leading to policies that do not adequately address all concerns.

Informed Consent and State Rights

The significant counterargument is nothing short of the very principle of informed consent and state rights. The principle of informed consent is fundamental in medical ethics and law, requiring that individuals be fully informed about and voluntarily agree to medical procedures - without coercsion. The decision to vaccinate can have profound personal and health implications.

That said, the issue of state rights is also crucial. States have historically had the authority to regulate public health measures, including vaccination policies. Restructuring vaccine law toward a Federal mandate would be reckless and destructive. The current decentralized approach allows for diverse policies and responses, which prevents groupthink and enables the nation to learn from different state-level experiments. It also respects the autonomy of states to make decisions that reflect the values and needs of their populations.

The prevailing case examples support the counterview in support of individual rights. In Murthy v Missouri, 2024, the court sided with the protection of First Amendment rights against indirect censorship through government pressure. The ruling underscores the importance of maintaining individual rights and preventing government overreach, even in the context of public health emergencies.

The Medical Professionals for Informed Consent v. Bassett ruling was correctly based on the fact that COVID-19 vaccine mandates were irrational and failed to prevent the spread of COVID-19. It also protected and respected individual rights from group mania.

The potential interpretation of the court's handling as allowing schools to vaccinate children without parental permission should raise eyebrows in legal circles, as it comes with significant ethical and legal concerns. It is my firm personal conviction that parents should be able to sue if their child is given a vaccine—intentionally or otherwise—without solicited parental consent.

Citations

Murthy v. Missouri (2024):

Murthy v. Missouri involves a case where social media users claimed their First Amendment rights were violated due to government pressure on social media platforms to moderate content related to COVID-19.

See Freedom Forum Institute. "Murthy v. Missouri: Supreme Court and First Amendment Rights." [Freedom Forum](https://www.freedomforum.org/murthy-v-missouri-first-amendment-rights/).

Vermont Supreme Court Case (2024):

The Vermont Supreme Court case involved parents suing after their child was mistakenly vaccinated against COVID-19 without their consent, raising significant concerns about parental rights and informed consent.

McDonald, Corey. Vermont Supreme Court hears arguments in accidental Covid-19 vaccination case. VTDigger, May 28, 2024. [VTDigger](https://vtdigger.org/2024/05/28/vermont-supreme-court-hears-arguments-in-accidental-covid-19-vaccination-case/).

Medical Professionals for Informed Consent v. Bassett (2023):

In Medical Professionals for Informed Consent v. Bassett, New York State, Supreme Court Judge Gerard J. Neri ruled against the state's COVID-19 vaccine mandate for healthcare workers, citing it as irrational and ineffective.

See Hancock Law: Healthcare Law Alert: New York State Supreme Court Judge Invalidates COVID-19 Vaccine Mandate. March 1, 2023. [Hancock Law](https://www.hancocklaw.com/publications/healthcare-law-alert-new-york-state-supreme-court-judge-invalidates-covid-19-vaccine-mandate/).

Biden v. Missouri (2023)

The Supreme Court's decision in Biden v. Missouri emphasized the importance of legislative clarity and authority, striking down the Biden administration's OSHA vaccine-or-test mandate for large businesses.

See: Stanford Health Policy. The Supreme Court’s Rulings on COVID-19 Vaccine Mandates, Explained. [Stanford Health Policy](https://healthpolicy.fsi.stanford.edu/supreme-court-covid-vaccine-mandates).