A dose of reality for the Supreme Court
Will it make a difference?
As some of you know, my lawsuit against Oregon for its orders for experimentation on human beings (the COVID jabs) makes the argument that the metes and bounds of your liberty interest in refusing an experimental COVID vaccine is defined by the Nuremberg Code. You are entitled to informed consent without any element of duress or coercion. Nothing new about informed consent. However, the fundamentally important aspect of my argument is that the Nuremberg Code has been recognized by two Courts of Appeal as being a jus cogens right (Latin for above all other law) from which no derogation is permitted. See Petition for Writ of Certiorari at p. 21. The exciting part of this (for a lawyer) is the “no derogation” part.
See, you can have a constitutional right that is violated and still lose because of the “standard of review.” The standard of review is how a court balances your constitutional right with the government’s right. If the standard of review is “rational basis,” then the government almost always wins. If the standard of review is “strict scrutiny,” the government almost always loses.
Across the county, all of the direct challenges to COVID mandates failed because the courts relied on Jacobson v. Massachusetts, 197 U.S. 11 (1905), interpreting Jacobson to having applied a rational basis standard of review to vaccine mandates. In all of the COVID vaccine challenges, your right to informed consent was trumped by the state’s right to maintain public health (so they said; the truth be damned) because the courts balanced the competing rights using a rational basis standard. The legal obstacle to winning these cases was the standard of review that the courts applied.
What none of these courts properly took into account was that the COVID vaccines were experimental and that ordering people to take them is medical experimentation on human beings.
My answer is that “no derogation” is the proper standard of review for COVID vaccine mandates. “No derogation” means absolutely no compromise of the right. The Supreme Court has never adopted “no derogation” as a standard of review, because they have never addressed such a case. Until the COVID panic (read mass psychosis), no government entity was so stupid (or evil) as to force medical experimentation on the public. But two courts of appeal describing the Nuremberg Code, in other contexts, have opined that a human being’s right to be free of medical experimentation is a jus cogens right from which “no derogation” is permitted. See Siderman v. Blake v. Argentina, 965 F.2d 699 (9th Cir. 1992) and Abdullahi v. Pfizer, 562 F.3d 163 (2d Cir. 2009). My lawsuit asserted that the proper standard of review for legal challenges to orders to be injected with a COVID vaccine was “no derogation.”
The District of Oregon dismissed my case, Johnson v. Brown, on the ridiculous grounds that the COVID vaccines were not experimental—completely failing to follow the rules for judging a motion to dismiss. On appeal, the Ninth Circuit simply dodged the question, thereby avoiding giving an answer to whether a government could order human beings to undergo medical experimentation. And the Supreme Court denied my petition for writ of certiorari.
On November 12, 2024, I filed the longest of long shots—a petition for rehearing in which I tried to give the Court a dose of reality. The petition for rehearing is scheduled for conference by the Justices on December 13, 2024.
In my petition, I liken our current situation with the German mass psychosis during WWII. Unlike, WWII we are not recovering from a kinetic war where a newly born superpower forced the Germans, and the world, to recognize the truth through assembly of irrefutable evidence of Nazi crimes. The COVID mass psychosis is different because it infected the free world and there is no mortal superpower coming to rescue us. We have to rely on God. And through His agency, the rescue has to come from within.
The question is, will the Supreme Court take a dose of reality and rescue the public from the COVID mass psychosis.
Stephen- This statement stands out as one of the most insightful ones I’ve read this week: “you can have a constitutional right that is violated and still lose because of the “standard of review.” The standard of review is how a court balances your constitutional right with the government’s right. If the standard of review is “rational basis,” then the government almost always wins. If the standard of review is “strict scrutiny,” the government almost always loses.” To your very good point: sometimes it isn’t enough just to be right. Which can be a problem. Great article!