by Noah Feldman
A lawsuit in Texas is challenging a hospital’s requirement that its employees get vaccinated against COVID-19 before returning to work. The case isn’t going anywhere, legally speaking. But the central claim is worth examining because it’s at the core of a lot of vaccine hesitation.
The Texas plaintiffs, either working in concert or in parallel with a New York-based law firm that is in turn linked to the anti-vaccination movement, claim that administering mRNA vaccines now should be treated as a form of experimentation. And they maintain that requiring employees to be vaccinated eliminates their capacity to consent. This, they insist, amounts to a violation of the Nuremberg Code, a guideline developed in the post-World War II trial of Nazi doctors for crimes against humanity that says humans should not be subject to medical experiments without their consent.
The Texas hospital is not violating that principle, because the vaccines at issue aren’t experimental — they have already gone through a series of clinical trials with voluntary subjects. Another reason the Texas plaintiffs’ argument has little legal purchase is that the Nuremberg Code isn’t the law, either under the Texas state statutes or federal law. The word “code” is a bit of a misnomer. Usually in legal context, a code is a body of law that has been authoritatively deposited or laid down by some responsible authority. The Nuremberg Code isn’t that.
Rather, the name refers to a set of 10 principles enumerated by the U.S. military tribunal that presided over the famous trial of the Nazi doctors. That trial, known as U.S.A. v. Brandt, resulted in a written opinion that included ten principles for delineating permissible experimentation, which are now referred to as the Nuremberg Code. The one that’s relevant for our purposes is the very first: “The voluntary consent of the human subject is absolutely essential.” Needless to say, the Nazis’ experimentation on human subjects featured no consent at all.
The lack-of-consent point is not the point the plaintiffs are really trying to press, anyway. They want to promote the view that the vaccines are experimental.
As a matter of federal regulation, the COVID-19 vaccines have received emergency use authorization (EUA) from the FDA. Ordinary, non-emergency authorization means the FDA has determined that a drug is safe and effective, a process that usually takes a few years. Emergency authorization happens when there is an emergency, no available alternative and studies establish safety in the light of available evidence. It’s a lower standard, one that considers safety but doesn’t require medium-term follow-up.
The lawsuit doesn’t focus on this comparison, probably because even ordinary authorization doesn’t require genuine long-term assessment. Instead, the suit aims to promote the argument that science cannot yet definitively identify the long-term effects of mRNA vaccines, since they’ve never been used before. That statement is literally true. In that restricted sense, we are collectively engaged in a massive, society-wide experiment. And that in turn gives us reason to explore more seriously whether there is a credible ethical — not legal — argument against requiring employees to take a vaccine that has been widely tested in the short run, but not yet tested over the longer term.
To assess this ethical claim requires defining what we mean by “experiment.” In the context of the Nuremberg Code, the best way to think of an experiment is that it is being conducted not primarily for the good of the experimental subject, but to gain scientific knowledge and expertise more generally.
But the hospital isn’t trying to find out what will happen if people take the vaccines. It’s trying to protect patients and employees by blocking the spread of COVID-19.
The sense in which we are more broadly engaged in an experiment around the new vaccines is a different sense of the word experiment. It’s the one invoked by Justice Oliver Wendell Holmes in his famous dissent just over a century ago in the case of Abrams v. U.S. In the course of laying out his defense of free speech, Holmes said: “It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”
Yes, there is some risk associated with our lack of knowledge about long term mRNA vaccine effects. But there is much greater risk associated with catching COVID individually and having it continue to infect and harm people collectively. That’s an experiment that’s not worth running.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.
