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Old 2021-09-10, 15:59   #1437
Dr Sardonicus
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Feb 2017

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Originally Posted by kriesel View Post
"No such case is here presented."
In part because the plaintiff was denied the opportunity to make a medical case in court. (See Politico article.
The ruling addresses this issue also:
Assuming that medical experts could have been found who would have testified in support of these propositions, and that it had become the duty of the judge, in accordance with the law as stated in Com. v. Anthes, 5 Gray, 185, to instruct the jury as to whether or not the statute is constitutional, he would have been obliged to consider the evidence in connection with facts of common knowledge, which the court will always regard in passing upon the constitutionality of a statute. He would have considered this testimony of experts in connection with the facts that for nearly a century most of the members of the medical profession have regarded vaccination, repeated after intervals, as a preventive of smallpox; that, while they have recognized the possibility of injury to an individual from carelessness in the performance of it, or even in a conceivable case without carelessness, they generally have considered the risk of such an injury too small to be seriously weighed as against the benefits coming from the discreet and proper use of the preventive; and that not only the medical profession and the people generally have for a long time entertained these opinions, but legislatures and courts have acted upon them with general unanimity. If the defendant had been permitted to introduce such expert testimony as he had in support of these several propositions, it could not have changed the result. It would not have justified the court in holding that the legislature had transcended its power in enacting this statute on their judgment of what the welfare of the people demands.' Com. v. Jacobson, 183 Mass. 242, 66 N. E. 719.
Uncwilly's distinction between smallpox being a long-known disease while COVID-19 is novel, may be pertinent to the issue of "common knowledge."

Thanks to the current state of medical science, the cause of COVID was identified, and, based on that knowledge, effective preventive vaccines developed in a matter of months. Compare that to the millennia between the emergence of smallpox and the discovery of a preventive vaccine, which was before the exact cause was known.

Do we deny that the viral cause of COVID, the seriousness of the disease, and the availability of effective vaccines are "common knowledge," simply because a vocal minority, egged on by irresponsible politicians and opportunists, refuse to accept them? Or do we avail ourselves of the hard-won advances in understanding contagious diseases, and in ways to develop preventive vaccines?

Polio has a 2% to 5% mortality rate in children. But when vaccines became available, people needed no urging to get their kids vaccinated. Of course, polio also paralyzed a lot of kids without killing them. That almost certainly made the disease more terrifying than its mortality rate alone might indicate.

Perhaps "long COVID" might one day play a similar role. But that would require that people get their heads out of the sand, or whatever place they've got them that the sun don't shine, and accept the reality of the situation they are trying so desperately not to face.
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