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Copyright (c) 2007 Virginia Journal of Social Policy & the Law
Virginia Journal of Social Policy & the Law


Fall, 2007

15 Va. J. Soc. Pol'y & L. 51


Gerald R. Prettyman, Jr.*


I. Introduction

A. Due Process Leads to the Belmont Report

The ethical guidelines and regulations in place today developed from the recognition for the need to balance the due process rights of individuals with society's need for medical information. Setting the balance on the due process side were two very different, but equally important proceedings involving the constitutional rights of people subjected to medical treatment and research.

The first proceeding regarded public vaccination. In 1905, the Supreme Court heard a due process challenge to a State requirement that each person receive a smallpox vaccine or face a fine or incarceration for noncompliance. 1 With regards to public health, the Court found that the State's police power and interest in preventing disease trumps any due process right. 2 The Court also justified its decision through a recited history of U.S. and international public vaccinations, including earlier unsuccessful challenges about vaccinations of children attending U.S. public schools. 3

The second proceeding regarded medical researchers relying on prisoners for medical research. In the 19th and early 20th centuries, incarcerated prisoners in the U.S. were often involuntary subjects. 4 Then came the "reported abuses of human subjects in biomedical experiments ... during the Second World War." 5 The Nuremburg Trials grimly documented some of the results, which led to the 1947 Nuremberg Code banning research on prisoners of war. 6 Later reports in the U.S. implicated the federal government in medical and psychological studies on non-consenting subjects from the 1940s and into the ...
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