Wednesday Writs: The Willy-nilly Invocation of The Nuremberg Codes Edition
Karl Brandt, Adolf Hitler’s personal physician and Reich Commissar for Health and Sanitation, receiving his death sentence for his roll in conducting human experiments on concentration camp inmates during the Nurnberg trials. He was hanged June 2, 1948. US Government Photo [Public Domain]
A few weeks ago, I went on a little rant about HIPAA here at Ordinary Times. Like many rants, this one started because someone was wrong on the internet. Not just wrong, though: absolutely ridiculous:
— Bad Legal Takes (@BadLegalTakes) March 22, 2021
Another day, another 100% incorrect interpretation of the Health Insurance Portability and Accountability Act. But I was so busy educating the masses on the correct use of the law that I didn’t pay enough attention to the real star of that shit show of a tweet: the supposed violation by Krispy Kreme of the “Nuremberg Codes”.
This tweet came up in conversation today, and I decided to take a deeper look at the Nuremberg Code, where it came from, and what and who it covers.
As you likely guessed, the origin is the Nuremberg trials held after World War II in which Nazi war criminals were prosecuted for their atrocities. The primary Nuremberg trials were conducted by the International Military Tribunal, but afterward, the US military courts conducted 12 trials of their own, in the same location in Germany. One of these prosecutions was USA v. Brandt, et al, an American military tribunal at which 23 Nazi doctors were held to account for their experiments on human beings. The trial took place over the course of 9 months, from December 1946 to August 1947. The named defendant, Karl Brandt, was the personal physician of Hitler himself.
The list of horrors these doctors were accused of are sickening, and most of them were committed in the name of “experimentation” on the unwilling and captive. The barbarity of their “experiments” left victims maimed, disfigured, and dead. In addition to the “experiments”, the doctors were accused of conducting forced sterilizations and operating a euthanasia program in which they summarily killed those they deemed unworthy of life, including the mentally and physically disabled.
The indictment against the 23 doctors — 22 men and one woman — reads like it came from the mind of Stephen King, describing how the defendants froze, poisoned, infected, gassed, and burned their victims. The ostensible goal was to strengthen the war effort: Test out methods of making sea water potable. Figure out just how frozen one must be before they can’t be re-warmed. Burn their captives, poison them, or infect them in order to test the effectiveness of treatments — including, yes, vaccines.
In the end, 16 of the doctors were convicted. 9 were given prison sentences; 7 were sentenced to death and hanged in June 1948.
In reaching the verdict, the tribunal considered the ethics of human experimentation and crafted a list of ten guidelines for ethical experimentation, what would be known thereafter as the Nuremberg Code:
1. The voluntary consent of the human subject is absolutely essential.
2. The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature.
3. The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment.
4. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.
5. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.
6. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment.
7. Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death.
8. The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.
9. During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.
10. During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probable cause to believe, in the exercise of the good faith, superior skill and careful judgment required of him that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.
These maxims, in our day and age, seem to go without saying. Researchers and scientists follow rigorous ethics, much of which have their roots in what the US Military Tribunal crafted at the doctors’ trial. They are useful and appropriate to safeguard the rights and wellbeing of human subjects.
But the Nuremberg Codes are not law, international or otherwise. There is no criminal charge for violating a provision of the Nuremberg Code (though there may be other criminal statutes triggered by doing so, depending on the severity and harm caused.) One may be sued for malpractice for violating an accepted standard of care, but some sort of consequence for “violation of the Nuremberg code” is not a thing.
It is not a violation of the Nuremberg Code, legal or otherwise, to try to convince someone to get a vaccination. The experimental phase of the creation of the vaccines took place in clinical trials, and even if you consider receiving a new vaccine a form of experimentation, being cajoled via baked goods is hardly on par with what happened to the Jews, Poles, Romani, and other victims. A shot in the arm, consented to even reluctantly or due to the promise of a delicious, hot original glazed donut, is not the same as having a chunk of your shin bone cut out without your permission and without anesthetic in the name of Nazi bone regeneration experiments.
And I thought the willy-nilly invocation of HIPAA was bad.
WW2: The US Navy owes Guam some money, says the Supreme Court. The Nine unanimously agreed that Guam could seek the Navy’s assistance in paying the $163 million cleanup bill for a munitions and chemical dump formerly owned and occupied by the USN.
WW3: Texas has passed “Bo’s Law”, named after Botham Jean. Jean was killed in his own apartment by an off-duty cop who entered the wrong residence in 2018, allegedly by mistake. The law was intended to close some loopholes in the castle doctrine law, but by the time it passed it contained only provisions requiring body cameras to remain on during investigations.
WW4: SCOTUS handed down a unanimous decision in United States v. Palomar-Santiago. Writing the opinion, Justice Sotomayor highlighted that 8 U.S.C. § 1326(d) compliance was mandatory, and the 9th Circuit was wrong in excusing a non-citizen fighting a deportment indictment after losing his residency due to criminal conviction. “When Congress uses ‘mandatory language’ in an administrative exhaustion provision, ‘a court may not excuse a failure to exhaust,’” Sotomayor wrote in an eight-page opinion. “Yet that is what the Ninth Circuit’s rule does.”
WW5: Like everything else, the court system is slowly getting back to normal.
For the judiciary who have had to shift back and forth between the “office” and working from home, the return to fully open – though socially distanced – arms of their court staff is a welcome change.
Justice Darrell Gavrin, who just completed a bench trial that first began in Dec. 2019 in a COVID-safe courtroom, said she is looking forward to true return.
“I’m so happy to be back in and doing the work that I was elected to do,” Gavrin said. “It was so good to be on trial and to see people and interact, and to be there with the court reporter.”
“It’s what I’m used to, it’s how I’ve worked for 27, 28 years,” she added. “I can’t not be in the courthouse.”
WW6: Paul J. Hanly Jr., a trial lawyer who was a lead counsel in the ongoing litigation against companies that produced and distributed the painkillers that have fueled the epidemic of opioid addiction, one of the most sprawling legal actions in U.S. history, died May 22 at his home in Miami Beach. He was 70.
WW7: Will no one rid me of these meddlesome HIPAA bad takes!!!!
— Bad Legal Takes (@BadLegalTakes) May 25, 2021
WW7: Great Cinematic Moments in Lawyering
My understanding of HIPAA is that vaccine status is not covered, because it’s a public health concern. Otherwise schools would not be able to require students prove they are vaccinated.Report
HIPAA does not prohibit the asking of questions about your health at all.
It covers disclosure of your records by covered entities. Covered entities are mostly health care providers, insurers, and any of their business associates who may have access to medical records as part of their business (an example is a third party billing company that your doctor uses to prepare invoices and insurance claims). It is to protect your records from being distributed without your consent, except for authorized purposes.
It does not prohibit anyone or any entity from asking you questions about your health.
There may be other protections for that – ADA or discrimination laws, for example – but not HIPAA.
Even if a school has possession of your immunization or other health records, that is also not HIPAA covered; they are considered education records, which are exempt from HIPAA, because they are instead protected by FERPA (Family Educational Rights and Privacy Act.)Report
It covers disclosure of your records by covered entities.
Covered entities being those who have taken the HIPAAcratic Oath.Report
It’s not really any different than a school requiring a doctor’s note in order for a student to be allowed to return to school, so I’m not sure “vaccines” are a significant factor here. HIPAA isn’t violated because the doctor doesn’t release any medical record without consent when the student or legal guardian is the one that gives the note to the school.
The one vaccine angle I can think of is that state laws usually require immunizations to be reported to a state public health agency. The state agency would not be a covered entity under HIPAA either, and probably can do things with those records as part of its public health mandate, but still would need to comply with whatever privacy laws govern government records.Report
it would be nice if people internalized that you can tell anyone you want about your PHI – great for chronic over-sharers!
if you’re trading your info for a free donut (if you’re into that sort of thing) or better/different access to the drooling psychedelic nightmare simulacra that is disney parks, then you’re ok to do so.Report
TYhis is a fine writeup, but likely to make sense only to those who are already sensible.
The appeal to Nuremberg or HIPAA isn’t amenable to reason since it isn’t coming from a place of reason. What we’re seeing is that sort of belligerent victimhood which gives excuse to victimizing others.
Phantom voter fraud, oppression of white people, urban chaos…all these panics are ginned up hysterias for the purpose of making their own oppression feel legitimate.Report
Agreed, and for justifying oppression of others. Lyndon Johnson was, sadly, right about this.Report
I propose a new Twitter law. If you cannot spell HIPAA, you cannot talk about it.
Actually, muting “HIPPA” would probably remove a lot of bad HIPAA takes from your timeline.Report
If anyone is interested in how some human experimentation is performed nowadays, I found this an interesting read: https://undark.org/2021/04/07/getting-sick-for-medical-research/#Report