B. The Defendant is not Entitled to Qualified
Defendant argues that since he was a government employee being sued in his individual capacity for his individual acts, he is therefore entitled to qualified immunity from suit by the plaintiff. Ordinarily, government officials sued in their individual capacities are entitled to qualified immunity from suit for damages so long as their actions do not violate "clearly established constitutional or statutory rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Defendant argues that at the time Stadt was injected with plutonium without her consent in 1946, there was no clearly established right to be free from medical experimentation, claiming that the right to refuse medical treatment has only recently been recognized as a "clearly established constitutional right." See e.g., Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 111 L. Ed. 2d 224, 110 S. Ct. 2841 (1990).
But this case does not involve the right to refuse medical treatment, but instead, the right to be free from non-consensual experimentation on one's body - the right to bodily integrity - a right which has been recognized throughout this nation's history. See Albright v. Oliver, U.S. , 114 S. Ct. 807, 812 (1994) (finding that "the protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.") (citations omitted); Schmerber v. California, 384 U.S. 757, 772, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966) (stating that "the integrity of an individual's person is a cherished value of our society."); Skinner v. State of Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 86 L. Ed. 1655, 62 S. Ct. 1110 (1942) (holding that sterilization performed without consent deprived the individual of a "basic liberty."; Union Pacific Railroad Co. v. Botsford, 141 U.S. 250, 251, 35 L. Ed. 734, 11 S. Ct. 1000 (1891) (finding that "no right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."). See also Morris L. Hawk, Comment, The "Kingdom of Ends": In re Cincinnati Radiation Litigation and the Right to Bodily Integrity, 45 Case W. Res. L. Rev.977, 991-992 (suggesting that it was the intent of the framers of the Constitution to protect the right of bodily integrity). I find that under the plain language of the Fifth Amendment to the Constitution, the plaintiff had a clearly established right in 1946 to be free from being injected with plutonium by the government without her consent. The defendant, therefore, is not entitled to the defense of qualified immunity.
This same result was reached in a strikingly similar case, In re Cincinnati Radiation Litigation, 874 F. Supp. 796 (S.D.Ohio 1995) There, the Department of Defense conducted experiments on approximately 88 cancer patients between 1960 and 1972, for the purpose of determining, inter alia, the amount of radiation that could be withstood by a soldier without significant loss of ability. In holding that the defendants seeking qualified immunity were not entitled to the defense, Judge Beckwith concluded that:
the conduct attributed to the individual . . . defendants . . . strikes at the very core of the Constitution. Even absent the abundant case law that has developed on this point since the passage of the Bill of Rights, the Court would not hesitate to declare that a reasonable government official must have known that by instigating and participating in the experimental administration of high doses of radiation on unwitting subjects, he would have been acting in violation of those rights. Simply put, the legal tradition of this country and the plain language of the Constitution must lead a reasonable person to the conclusion that government officials may not arbitrarily deprive unwitting citizens of their liberty and their lives.