Vax or Jail? The Dilemma Facing Some Americans

Brandon Rutherford was recently presented with a dilemma in an Ohio courtroom: get vaccinated or face incarceration.

The 21-year-old was sentenced to two years probation for fentanyl possession by Judge Christopher Wagner of Hamilton County, Ohio on August 4, but his sentence came with a twist: he was ordered to get a COVID vaccine as a condition of his probation.

Should Rutherford fail to comply, he could be sent to jail for up to 18 months.

“I’m just a judge, not a doctor, but I think the vaccine’s a lot safer than fentanyl, which is what you had in your pocket,” Wagner told Rutherford.

Wagner gave Rutherford 60 days to get vaxxed and said, “You’re going to maintain employment. You’re not going to be around a firearm. I’m going to order you, within the next two months, to get a vaccine and show that to the probation office.”

The judge only knew Rutherford’s vaccination status in the first place because he questioned him when he arrived in court wearing a mask—a rule Wagner put in place for any unvaccinated people in his courtroom.

Rutherford was outraged by the mandate.

“Because I don’t take a shot they can send me to jail? I don’t agree with that,” he said. “I’m just trying to do what I can to get off this as quickly as possible, like finding a job and everything else. But that little thing (COVID vaccine) can set me back.”

The judge’s order created a stir, prompting Wagner to issue a response.

“Judges make decisions regularly regarding a defendant’s physical and mental health, such as ordering drug, alcohol, and mental health treatment,” he wrote in a statement. He also said it was his responsibility to “rehabilitate the defendant and protect the community.”

Wagner is not the only Ohio judge to take such actions. He joined judges in Franklin and Cuyahoga counties who made similar demands.

Bodily Autonomy

As Rutherford’s case vividly demonstrates, in the wake of COVID-19, the world is grappling with the question of how much control an individual should have over their own body.

Bodily integrity, also commonly referred to as bodily autonomy, is a longstanding principle of human rights and individual liberty. In recent years, discussion on this topic has centered around the #MeToo movement regarding sexual harassment and abuse in many of our institutions. It is obvious that violating another person’s body is inherently wrong; no one questions this premise when discussing matters of sexual violence.

Yet, for too many those clear-cut lines become blurred with other issues, especially when the conversation turns to medical bodily autonomy. And history shows there is a long, troubling tradition in the US of violating the bodily integrity of Americans, particularly the marginalized and disadvantaged.

As an example, a Tennessee judge and sheriff launched a forced-sterilization program for inmates around 2017. They allowed people in jail to shorten their sentences by 30 days if they agreed to the medical procedures. They were, thankfully, sued over this and the program was overturned on constitutional grounds. The attorney who obtained justice in this case, Daniel Horwitz, said at the time, “Inmate sterilization is despicable, it is morally indefensible, and it is illegal.”

Forced sterilization among inmates isn’t the only medical crime against bodily autonomy in our past either. In 1932, the Tuskegee Experiment was launched and ran for decades. The United States Public Health Service and the Centers for Disease Control and Prevention (CDC) conducted the study, during which they lied to the 600 black male participants about their syphilis status and told them they were receiving free healthcare. In reality, they were given placebos, ineffective treatments, and denied penicillin—even as it became widely available as a treatment for syphilis. The particular case elevated the issue of informed consent in medical procedures and highlighted how far the country still had to go in respecting inalienable rights, including “The right of the people to be secure in their persons,” as articulated in the US Constitution.

Globally, human rights advocates have fought a long and uphill battle to assert these basic principles of bodily autonomy and informed consent in society.

In 1948, the United Nations passed its Universal Declaration of Human Rights. Article 3 of this Declaration states, “Everyone has the right to life, liberty and security of person.”

The timing of this Declaration is key as it came at the heels of World War II, a period during which arguably the greatest violations of human rights in modern history were committed, including forced scientific and medical experimentation on human beings on a mass scale. The subsequent Nuremberg Trials—held between 1945 and 1949—resulted in the Nuremberg Code of 1947, a set of 10 standards that confronted questions of medical experimentation on humans. The Nuremberg Code established a new global standard for ethical medical behavior. Within its requirements? Voluntary informed consent of the human subject.

Then, in 1966, the International Covenant on Civil and Political Rights declared in its Article 7: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

Forced medical procedures are an especially monstrous violation of the fundamental right of bodily integrity and autonomy. This lesson was hard-learned through the course of the 20th Century. But it seems to have been unlearned amid the panic over COVID-19.

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