Vaccine Mandates and the Nuremberg Code: An Ethical Analysis

On December 2nd, Ursula von der Leyen, President of the European Commission, explained that she wanted a discussion about mandatory COVID vaccines. This caused a major controversy in the blogosphere and on social media, with suggestions that von der Leyen was open to abolishing the Nuremberg Code and its ban on forced medical experiments. 

Born in response to the atrocities committed by the Nazi regime during World War II, the Nuremberg Code set an absolute boundary on government powers in the practice of medicine. Its first clause declares that consent “is absolutely essential” for any person to participate in any medical experiments. 

Von der Leyen’s critics got a fair amount of attention. The first one to connect von der Leyen’s remarks to the Code was apparently Michael P Senger, an attorney and author with a prolific presence on Twitter. Jordan Peterson quickly re-tweeted Senger’s comment, thereby motivating others to amplify the message. Two examples are Steven Crowder and the Richardson Post.

However, as is evident from The European Conservative‘s reporting, von der Leyen herself never mentioned the Nuremberg Code. If she had, her critics would have been rightfully upset, especially given the seriousness of the vaccine-mandate issue itself. But since she did not mention the Code and limited herself to expressing interest in the vaccine-mandate idea, the Nuremberg reference only added hyperbole where none was merited, and the criticism of her remarks did little to further a reasoned conversation about the vaccine mandate. Upfront, Senger, Peterson, Crowder, et consortes did their mandate resistance a rhetorical disservice; to use an American metaphor, they shot themselves in the foot. 

Despite the fact that skeptics of the vaccine mandate obfuscated their case by referring to Nuremberg, the references to the Nuremberg Code could be used in a dispassionate conversation about the vaccine mandate. So far, not enough attention has been given to this question. This is unfortunate. There is an ethical case to be made against vaccine mandates. It is far from straightforward, and it requires careful reasoning and methodical analysis. This conversation would be centered around the question about the role of government in our lives. Spanning both high theory and legislative practice, this question require us to strike a delicate balance between fundamental moral values and pressing public-health needs. 

As the COVID-19 pandemic has demonstrated, it is easy to expand government power during a public-health crisis. Private freedom is forced to yield to government powers in a way that would otherwise have been intolerable. Governments have forced private businesses to close, individuals to wear masks and limit their whereabouts. 

Vaccine mandates signal an even further expansion of public powers at the expense of private freedom. However, the fact that government can expand its powers is in no way a moral carte blanche for it to actually do so. To find out whether government ought to expand its powers, we need to explore the moral dimension of the vaccine-mandate issue. We will do so in three steps, the first of which, as it happens, is embedded in the Nuremberg Code.

As mentioned, the first clause of the Nuremberg Code declares that consent “is absolutely essential” for any person to participate in any medical experiments. By absolutely banning forced medical experiments, the Nuremberg Code defines a non-negotiable limit to government powers. If critics of the COVID vaccine mandate can demonstrate that the mandate meets the standards in the consent clause, then the mandate is unethical. 

This consent clause is referenced by critics of von der Leyen’s comments, but it is not immediately apparent how the clause applies to the vaccine-mandate issue. To make their case, critics of the mandate would have to establish that a forced COVID vaccination program rises to the same level as other forced-vaccination programs with an apparent experimental profile. As an illustration of the standard that they would have to adhere to consider the Tuskegee Syphilis Study carried out by the U.S. government in the state of Alabama. From 1932–1972, hundreds of black men were subjected, without being informed and without consent, to experiments in syphilis treatment and vaccination. 

However, the Code does more than just enforce consent in medical experiments. The purpose of the clause is to guarantee that there be no violations of an individual’s freedom, and by establishing an absolute cap on government powers, the consent clause allocates the burden of ethical proof to those who advocate the mandate. It is up to vaccine-mandate proponents to make credible that their mandate does not violate the consent clause in the Nuremberg Code.  

This allocation of the burden of proof is similar in nature to that which applies in criminal justice. When the government accuses a person of having committed a crime, the person is to be considered innocent until proven guilty. The person accused of criminal activity is free by default in the same way as a person is free by default until forced to submit to a vaccination mandate. 

So, if a government can make credible that a COVID vaccine mandate does not violate the consent clause of the Nuremberg Code, does this make the mandate ethically acceptable?

No, it does not. Doing so is only the first of three steps to ethical approval. Even if the vaccine is not a medical experiment, it may still be unethical to force it upon people. Implicit in arguments for the mandate is the assumption that the mandate comes with positive value. This value is, again implicitly, assumed to be high enough to merit the mandate.

Here, we take the second step toward establishing the ethical status of the vaccine mandate. We do so by asking: what greater good is achieved if all individuals within a given jurisdiction, such as the European Union, are forced to take the COVID vaccine? Is this greater good worth the cost of infringing upon the individual freedom of every citizen?

To find the answer to these two questions, we can make good use of the examples of mandatory lockdowns that governments have applied, are applying, or considering for unvaccinated individuals. Austria has recently imposed such lockdowns, with the apparent motivation that it should stop the spread of the COVID virus. 

In other words, the greater good is to halt the pandemic, which would also be the greater good pursued under a vaccine mandate. This is, of course, an unrealistic proposition: no government can guarantee a complete halt to the spread of a disease. In the case of the COVID, the argument for a mandate is also burdened by the fact people still can get the virus even if they are vaccinated. 

Let us therefore modify the greater good of the vaccine mandate so that the goal is to contain the spread and therefore the case for a vaccine mandate may look ethically plausible. 

However, we have only looked at the benefits side of the moral equation. A mandate also comes with the cost of infringing upon a personal freedom of every citizen. In other words, our inquiry into the moral benefits and costs of a vaccine mandate forces us to calculate:

• The moral benefits of containing the spread of the virus;
• And the moral costs of restricting individual freedom.

Such a straightforward calculation would give an easily identifiable net balance. However, the calculation is not possible unless we first estimate the costs and benefits in question. We need metrics by means of which we can determine the positive and negative consequences of the mandate. To find those metrics, we turn to utilitarian moral value theory and its so-called “utils.” In the case of a vaccine mandate, we calculate the utility gained from containing the virus, as well as the utility lost to infringements on individual freedom. If the net balance between the two is positive, then the mandate is morally acceptable, and vice versa. 

This method for addressing complex policy problems is not new: it is already in use in the economics of health care. Primarily in countries with single-payer health systems, healthcare providers use an evaluation technique known as QALY (Quality Adjusted Life Years) to determine the allocation of medical resources. Patients who are determined to gain more from a medical procedure than the procedure will cost are approved for treatment. If the net gain is negative, the patient is denied treatment. The QALY method can also be applied to rank patients waiting in line. All other things equal, in the choice between two patients, QALY says that the patient with the highest net value gain should get treatment first.

This example brings us to the third and final step in our ethical evaluation of the vaccine-mandate issue. We need to find out who gets who will establish the value to the mandate. 

In the case of QALY estimates, it is never the patient who sets the value of his own recovery. That is always done by the provider. A patient may say that he will benefit substantially from treatment, but if the health care provider’s QALY evaluation says otherwise, treatment is denied.

Our vaccine-mandate example suffers from the same weakness. A government bureaucracy will determine the value of the infringement on individual freedom, as well as the value of a person not contracting COVID. Individuals may claim that the infringement on their freedom is a bigger utility loss to them than that to which the authorities will admit. If the vaccine is mandated, government defines the value of the infringement. Since it also defines the gains from stopping the epidemic, the government imposes its calculations on people in both ends of the ethical equation. 

Thus, the ethical evaluation of a vaccine mandate spans three steps: 

• The determination whether or not it is a medical experiment, with the burden of proof on the shoulders of the mandatory vaccine mandate proponents;
• The definition and calculation of the gains and losses from a mandate; and
• The determination of who gets to define the value of what is gained and lost under the mandate.

This is a complicated procedure for evaluating the ethics of a vaccine mandate. However, the vaccine mandate itself is a complicated issue, with potentially far-reaching consequences regardless of whether the mandate is imposed or not. To rush ahead with a mandate without a thorough examination of its consequences, ethical and other, would be highly irresponsible.