The “Nuremberg Code” gambit

If there’s one thing antivaxxers love, it’s citing the Nuremberg Code. We’ve seen it (and I’ve discussed it here) many times before, coming from antivaxxers as diverse in their level of fanaticism as Mike Adams, who has all but called for “Nuremberg-style” trials for pro-vaccine physicians and scientists; washed up comedian Rob Schneider; the grande dame of the antivaccine movement, Barbara Loe Fisher; our recent acquaintance, “holistic” cardiologist Joel Kahn; Phil Valentine; VAXXED “documentarian” Del Bigtree; and disgraced antivax physician from the Cleveland Clinic, Daniel Neides. The examples go on and on and on. Antivaxxers invoke the Nuremberg Code so often that I’ve started calling their doing so the “Nuremberg Code gambit.” That’s why, every so often, I feel the need to revisit this topic and explain why the way antivaxxers invoke the Nuremberg Code against vaccines reveals a poor understanding of history and is a thinly disguised (actually undisguised) Godwin.

So what is the Nuremberg Code? The Nuremberg Code is a set of principles for human subjects research that published in 1947 as part of USA vs. Brandt et al (also often called the Doctors’ Trial) as one result of the Nuremberg Trials. The trial involved doctors who had been involved in Nazi human experimentation and mass murder disguised as euthanasia. Of the 23 defendants, seven were acquitted, while seven were sentenced to death. The rest received prison sentences ranging from 10 years to life imprisonment.

There are ten points to the code, which was published in the section of the verdict entitled “Permissible medical experiments”:

1. The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment. The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs, or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.^[13]
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.

The Nuremberg Code remains one of the foundations of medical ethics with respect to human subjects research. It is, however, old and has been largely supplanted, for practical purposes, by newer statements of human research ethics. It is certainly true, though, that these newer statements (which I’ll discuss in a moment) echo many of the points of the Nuremberg Code; it’s just that they go beyond it.

This brings me to Tim Noakes, who Tweeted the other day:

But where’s the reference to the Nuremberg Code? Patience. A certain person known to the blog quote-Tweeted the above Tweet, leading Tim Noakes to respond:

And there you have it! The appeal to the Nuremberg Code, or, as I now call it, the “Nuremberg Code gambit.”

Tim Noakes is someone whom I had heard of but never directly encountered before. He’s a conspiracy theorist, as described in Rational Wiki:

Timothy David Noakes (1949–) is a South African exercise physiologist, conspiracy theorist, anti-sugar campaigner, low-carb high-fat advocate and cholesterol denialist, best known for his opposition to mainstream dieting advice. Noakes has been accused of promoting dangerous and false information about vaccines and “outrageous, unproven claims about disease prevention.”^[1][2][3]

Noakes endorses a low-carbohydrate, high-fat (LCHF) diet, often referred to as the “Banting” or “Noakes” diet. Medical experts have criticized the diet as being “not based on good science“.^[4] The Noakes diet forbids all grains, most kinds of fruit and refined sugars.^[5]

His book Lore of Nutrition was described by paediatrician Alastair McAlpine as “an extraordinarily heady mix of conspiracy theory, bad science, bad writing, and persecution complex“.^[6]

What I hadn’t known before is that Noakes has a long history of antivaccine stylings, which was pointed out to me in a reply:

I shouldn’t have been surprised. (Actually, I wasn’t, at least not much.) But what about the Nuremberg Code? First, the Nuremberg Code only applies to human experimentation. Notice how each of the ten points of the Nuremberg Code mentions “the experiment” or “experimental” treatments. The Code is not about medical treatment, only medical experimentation involving human subjects.

I can’t help but note that if no “coercion” whatsoever were ever allowed for any medical test or treatment, then PKU tests for infants would be horrifically unethical, as would school vaccine mandates, and, well…I like the way Greg thinks:

Of course, antivaxxers would probably agree that no health tests or interventions whatsoever should ever be mandated for anything.

So what is the “Nuremberg Code gambit” all about? Basically, it’s one form of a favorite antivaccine trope, the appeal to “informed consent” and the claim that any vaccine mandate whatsoever violates “informed consent,” coupled with a confusion of research and treatment. Many of you have probably heard the antivaccine propaganda line that the COVID-19 vaccines are “experimental gene therapy.” You also probably know that none of the current COVID-19 vaccines, be they from Pfizer/BioNTech, Moderna, or Johnson & Johnson, have yet been granted full FDA approval. They’ve all been distributed under an emergency use authorization (EUA), while full FDA approval is being sought. As a result, because of law and regulation, in the US they must be referred to as “investigational” and can’t be represented as “safe and effective.”

This classification, however is a legal, not a scientific classification. To be granted an EUA, all of the current vaccines underwent phase 1, 2, and 3 testing, the last of which involved tens of thousands of patients in phase 3 clinical trials. Since then, hundreds of millions of doses of these vaccines have been administered with an excellent safety record. From a scientific standpoint, they are not really “experimental” or “investigational” any more. It is only legally that they are “investigational” or “experimental.” From a scientific and medical standpoint, the COVID-19 vaccines being used are now legitimate medical preventative treatments, even if they do not yet have full FDA approval.This is one reason why I really hope that the various vaccines achieve full FDA approval soon, as this will make it much harder for antivaxxers to use this particular trope as effectively, although I’m sure they’ll quickly just pivot to claiming that the FDA “caved” and approved them even though they supposedly don’t work and/or are unsafe. Antivaxxers gonna antivax, after all.

The second part of the Nuremberg Code gambit is the deceptive appeal to “informed consent.” Of course, as I like to point out, while antivaxxers like to think they are really advocating for informed consent (and probably actually do think that), in practice, what they are advocating for is something that I like to refer to as “misinformed refusal.” (I used to call it “misinformed consent” before I realized that this term didn’t quite catch the essence of what antivaxxers do.) It’s an antivaccine trope that I’ve been dealing with at least 16 years, if not longer.

Here’s the idea. Antivaxxers vastly exaggerate the risks of vaccines and even make up risks (e.g., autism, autoimmune disease, sudden infant death syndrome) that are not at all supported by science. At the same time, they deny or downplay the benefits of vaccines, portraying them as largely ineffective or claiming that “natural” immunity from the disease is far superior to vaccine-induced immunity. Thus, if parents listen to the antivaccine narrative about the risk-benefit profile of vaccines, they will believe that the risks of vaccines outweigh the benefits. They might even believe that vaccines are not only ineffective, but dangerous, deadly even. That’s where my term “misinformed refusal” comes in. It’s the refusal of vaccines based on misinformation that portrays a falsely unfavorable (and even terrifying) risk-benefit ratio.

As an aside, I can’t resist mentioning that the original gambit that Noakes used, in which he basically asked why someone who is vaccinated against COVID-19 should be afraid of the unvaccinated. It is, as has been described, well:

Basically, this is yet another example of dichotomous thinking. If a vaccine isn’t absolutely 100% safe, it’s dangerous, toxin-laden crap. If a vaccine is not 100% effective at preventing the disease that it’s designed to prevent, it’s utterly useless. Any vaccine failure at all is evidence to them that they are correct. In the age of COVID-19, this is why they constantly harp on “breakthrough cases” of the disease in the vaccinated. No vaccine is 100% effective, of course. So in the middle of a pandemic, as vaccines roll out, there will always be vaccine failures. What has to be examined is the risk of getting the disease in the vaccinated versus the unvaccinated. Utterly unsurprisingly, it turns out that, since the vaccines have rolled out and reached a significant part of the population (but not sufficiently large to result in herd immunity), COVID-19 has become a “pandemic of the unvaccinated“:

COVID-19 cases are continuing to spike in communities where vaccination rates are low, leading to what CDC Director Rochelle P. Walensky, MD, called “a pandemic of the unvaccinated.”

Walensky reported sobering numbers during a news conference Friday: The most recent 7-day average of new COVID-19 cases was more than 26,300, up 70% from the previous week. The average of daily deaths is now 211 – an increase of 26%.

“There is a clear message that’s coming through: This is becoming a pandemic of the unvaccinated,” Walensky said. “We are seeing outbreaks in parts of the country where we’re seeing low vaccination coverage.”

Also:

“Unvaccinated Americans account for virtually all recent COVID-19 hospitalizations and deaths,” said Jeff Zients, the White House COVID-19 response coordinator. “Each COVID-19 death is tragic, and those happening now are even more tragic because they are preventable.”

More than 99% of recent deaths were among the unvaccinated, infectious disease expert Dr. Anthony Fauci said earlier this month on NBC’s Meet the Press, while Walensky noted on Friday that unvaccinated people accounted for over 97% of hospitalizations.

Basically, Noakes’ “Why are the vaccinated afraid of the unvaccinated?” gambit is an old one that I’ve heard from antivaxxers as long as I’ve been paying attention to the antivaccine movement.

Let’s finish, though, by circling back from that brief digression to the Nuremberg Code gambit. As I said before, the Nuremberg Code, as important as it was historically, has largely been supplanted by the Belmont Report (published in 1976) and the Declaration of Helsinki. The Belmont Report, for instance, goes beyond the Nuremberg Code by delineating the boundaries between medical practice and research. It also rests on basic ethical principles of respect for persons, beneficence, and justice, while emphasizing the importance of voluntariness (as the Nuremberg Code), a detailed discussion of benefits and risks (informed consent), and the selection of subjects. The Declaration of Helsinki, last updated in 2013, is similar, but goes into much more detail about informed consent. It also addresses the ethics of the use of placebos, post-trial provisions, and the dissemination of results. It even addresses the use of unproven interventions in clinical practice outside of clinical trials.

More “sophisticated” antivaxxers mention other provisions:

I just discussed the Belmont Report. But what about 42 US Code 1395? When I saw that, at first I thought she was referring to the Common Rule (more on what the Common Rule is in a moment). I was actually wrong about that. When I looked it up I found that 42 US Code 1395 states:

Nothing in this subchapter shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services; or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.

(Aug. 14, 1935, ch. 531, title XVIII, § 1801, as added Pub. L. 89–97, title I, § 102(a), July 30, 1965, 79 Stat. 291.)

This is part of the law that created Medicare, actually, and the federal government is doing nothing of the sort by encouraging COVID-19 vaccination. In fact, one problem with the US is that it will likely be all but impossible to institute the sorts of vaccine requirements that would keep people safe, such as requirements for COVID-19 vaccination if you want to attend crowded concerts or fly commercial airlines. We won’t be France or Germany. The states, not the federal government, govern the practice of medicine, as well as public health mandates, such as school vaccine mandates or any other vaccine mandate. The only exceptions are areas where federal law supersedes state law; e.g., interstate commerce, air travel, federal programs such as Medicare, and the like.

But what about the Common Rule? Basically, it’s the operationalization of the principles of the Belmont Report and the Declaration of Helsinki into regulations governing human subjects research carried out by the federal government, institutions that receive federal funding, and pharmaceutical and device companies seeking FDA approval for their products. It requires Institutional Review Board (IRB) approval and oversight of human subjects research, among other requirements for ethical human research and lays out the requirements for informed consent, as well as for research compliance by institutions. In effect, the Common Rule lays out the standard of ethics that govern not just human subjects research funded by the federal government or subject to FDA regulation for FDA approval, but in essence nearly all human subjects research. Almost all US academic institutions require their researchers to adhere to the Common Rule regardless of funding sources.

So why do antivaxxers always mention the Nuremberg Code and never the Belmont Report, Declaration of Helsinki, or the Common Rule when claiming that vaccine mandates somehow violate informed consent in human subjects research? (Never mind that COVID-19 vaccines do not violate informed consent or the provisions of any of those documents describing the ethical principles of human subjects research.) The reason is simple. Neither the Belmont Report, the Declaration of Helsinki, nor the Common Rule were written or promulgated in response to Nazi war crimes. The Nuremberg Code, on the other hand, was written as part of the verdict of the Doctors Trial at Nuremberg.

In other words, the simple reason that antivaxxers point to “informed consent” for (or, as I like to call it, misinformed refusal of) vaccines along with the Nuremberg Code is because it’s a Godwin. It not-so-subtly compares physicians, public health officials, and vaccine advocates to Nazis. That’s the one and only purpose of the Nuremberg gambit. If it weren’t, in order to try to portray vaccines as “experimental” or “unproven,” antivaxxers would instead refer to the Helsinki Declaration, which is the most recent and most applicable set of ethical principals governing human subjects research. They don’t. That should tell you all you need to know about the Nuremberg gambit.