By MIKE MAGEE

For most loyalist Americans at the turn of the 19th century, Justice John Marshall Harlan’s decision in Jacobson v. Massachusetts (1905). was a “slam dunk.” In it, he elected to force a reluctant Methodist minister in Massachusetts to undergo Smallpox vaccination during a regional epidemic or pay a fine.

Justice Harlan wrote at the time: “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”

What could possibly go wrong here? Of course, citizens had not fully considered the “unintended consequences,” let alone the presence of President Wilson and others focused on “strengthening the American stock.”

This involved a two-prong attack on “the enemy without” and “the enemy within.”

The The Immigration Act of 1924, signed by President Calvin Coolidge, was the culmination of an attack on “the enemy without.” Quotas for immigration were set according to the 1890 Census which had the effect of advantaging the selective influx of Anglo-Saxons over Eastern Europeans and Italians. Asians (except Japanese and Filipinos) were banned.

As for “the enemy within,” rooters for the cause of weeding out “undesirable human traits” from the American populace had the firm support of premier academics from almost every elite university across the nation. This came in the form of new departments focused on advancing the “Eugenics Movement,” an excessively discriminatory, quasi-academic approach based on the work of Francis Galton, cousin of Charles Darwin.

Isolationists and Segregationists picked up the thread and ran with it focused on vulnerable members of the community labeled as paupers, mentally disabled, dwarfs, promiscuous or criminal.

In a strategy eerily reminiscent of that employed by Mississippi Pro-Life advocates in Dobbs v. Jackson Women’s Health Organization in 2021, Dr. Albert Priddy, activist director of the Virginia State Colony for Epileptics and Feebleminded, teamed up with radical Virginia state senator Aubrey Strode to hand pick and literally make a “federal case” out of a young institutionalized teen resident named Carrie Buck.

Their goal was to force the nation’s highest courts to sanction state sponsored mandated sterilization.

In a strange twist of fate, the Dobbs name was central to this case as well.

That is because Carrie Buck was under the care of foster parents, John and Alice Dobbs, after Carrie’s mother, Emma, was declared mentally incompetent. At the age of 17, Carrie, after having been removed from school after the 6th grade to work as a domestic for the Dobbs, was raped by their nephew and gave birth to a daughter, Vivian. This lead to her mandated institutionalization, and subsequent official labeling as an “imbecile.”

In his majority decision supporting Dr. Priddy, Buck v. Bell,  Supreme Court Chief Justice Oliver Wendall Holmes leaned heavily on precedent. Reflecting his extreme bias, he wrote: “The principle that supports compulsory vaccination is broad enough to cover the cutting of Fallopian tubes (Jacobson v. Massachusetts 197 US 11). Three generation of imbeciles are enough.”

Carrie Buck lived to age 76, had no mental illness, and read the Charlottesville, VA newspaper every day, cover to cover. There is no evidence that her mother Emma was mentally incompetent. Her daughter Vivian was an honor student, who died in the custody of the John and Alice Dobbs at the age of 8.

The deeply embedded roots of the prejudicial idea that inferiority is a biological construct was used to justify indentured servitude and enslaved Africans traces back to our very beginnings as a nation. Our third president, Thomas Jefferson, was not shy in declaring that his enslaved Africans were biologically distinguishable from land-holding whites. Channeling Eugenic activists a century later, the President noted his enslaved Africans suitability for brutal labor was based on their greater physiologic tolerance for plantation-level heat exposure, and lesser (required) kidney output.

Helen Burstin MD, CEO of the Council of Medical Specialty Societies, drew a direct line from those early days to the present day practice of medicine anchored in opaque decision support computerized algorithms. “It is mind-blowing in some ways how deeply embedded in history some of this misinformation is,” she said. She was talking about risk-prediction tools that are commercial and proprietary, and utilized for opague oversight of “roughly 200 million U.S. citizens per year.” Originally designed for health insurance prior approval systems and managed care decisions, they now provide underpinning for new AI super-charged personalized medicine decision support systems.

Documented misinformed and racially constructed clinical guidelines have been uncovered and rewritten over the past few years. They include obstetrical guidelines that disadvantaged black mothers seeking vaginal birth over Caesarian Section, and limitations on treatment of black children with fever and acute urinary tract infection, as just two examples. Other studies uncovered reinforcement of myths that “black people have higher pain thresholds,” greater strength, and resistance to disease – all in support of their original usefulness as slave laborers.

Can’t we just make a fresh start on clinical guidelines? Sadly, it is not that easy. As James Baldwin famously wrote, “People are trapped in history and history is trapped in them.” The explosion of technologic advance in health care has the potential to trap the bad with the good, as vast databases are fed into hungry machines indiscriminately.

Computing power, genomic databases, EMR’s, natural language processing, machine based learning, generative AI, and massive multimodal downloads bury our historic biases and errors under multi-layered camouflage. Modern day Dobb-ists have now targeted vulnerable women and children using carefully constructed legal cases and running them all the way up to the Supreme Court. This strategy was joined with a second (MAGA Republican take-over’s of state legislatures) to ban abortion, explore contraceptive restrictions, and eliminate fertility therapy. It is one more simple step to require encodement of these restrictions on medical freedom and autonomy into binding clinical protocols.

In an age where local bureaucrats are determined to “play doctor”, and modern day jurists are determined to provide cover for a third wave of protocol encoded Dobb-ists, “the enemy without” runs the risk of becoming “the enemy within.”

Mike Magee MD is a Medical Historian and regular contributor to THCB. He is the author of CODE BLUE: Inside America’s Medical Industrial Complex (Grove/2020).