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Peter Nayland Kust's avatar

"Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the State, to protect the people at large was arbitrary and not justified by the necessities of the case. We say necessities of the case because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. " Jacobson v. Massachusetts, 197 U.S. 11 (1905)

https://supreme.justia.com/cases/federal/us/197/11/

The Jacobson decision was widely cited as during the COVID Pandemic Panic as legitimizing vaccine mandates and the other examples of pharmaceutical authoritarianism spawned by during that orgy of propaganda, presenting that case as judicial endorsement of the imposition of the police power into the realm of healthcare and medical choice.

Yet a close reading of that decision reveals that Justice Harlan's logic was predicated on the realities of smallpox as an extremely dangerous disease which therefore presented a very real threat to public health and public safety. Absent those realities--what Harlan calls "the necessities of the case"--that logic evaporates and even Harlan concedes that in such a circumstance the courts could be obligated to act, and indeed had been obligated to act.

The presumption that regulatory authority ever reigns supreme in any part of our lives, and in particular in the medical choices we make, is not one which is backed by any serious reading of the law.

We should therefore not be reluctant to challenge that authority whenever we have reason to believe it is not being applied in our best interest, or where we see a risk of harm. The realm in which regulatory authority trumps personal liberty is quite a bit smaller than the reflexive authoritarians among us want to admit, and it is not unreasonable to consider a presumption of regulatory overreach as the default scenario, so that those who support a regulation are compelled to defend it and to show the compelling interest which gives it legitimacy.

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GadflyBytes's avatar

Managed care, which replaced insurance, seems like another way to centralize power over which treatments are even available, rather than to actually provide people with healthcare. We pay a huge amount of money for HMOs and PPOs and they in turn tell us how we may spend it, by portioning it back out to us, poorly, while pocketing the difference between what we need and what they allow.

It’s a huge scam, but we are held captive by the insurance cartel, and it is a cartel, as there is no longer a type of health insurance that covers just cancer or a broken leg.

They obviously collude to set prices, for premiums and treatments, determine acceptable treatments and standards of care, which traps us all, and leaves us to pay out of pocket for established alternative treatments like acupuncture, cryotherapy or massage.

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