California’s SB 277 & The Morality of Coercive Vaccination Programs
What Would It Mean For The New Vaccine Law To Be A Success?
By Professor Mark Navin (Oakland University)
September 10, 2015 Picture: California Air Resources Board/Flickr
This article is part of The Critique’s September 2015 Issue on Vaccines, Belief & Autonomy.
I don’t know whether California did the right thing. As in most cases of contested public policy, the correct policy choice is largely an empirical matter, and we don’t know what the consequences of SB 277 are going to be. But my epistemic humility (such as it is) need not stop me from making arguments about SB 277 and similar laws. In particular, I question what it would mean for SB 277 to be a success and I reflect on the sorts of moral arguments people have used to defend SB 277 and other laws like it.
I. What would it take for SB 277 to be a success?
SB 277 is nearly certain to decrease vaccine exemption rates in California. The law eliminates both religious and personal belief exemptions, and physicians are unlikely to authorize medical exemptions for people who do not need them. In contrast, I am less confident that Vermont’s H98 will lead to a significant decrease in exemption rates, since Vermont’s law eliminates only personal belief exemptions – and preserves religious exemptions – and since people who have merely personal belief objections are usually able to (fraudulently) receive religious exemptions. Regardless, what matters for California’s public health is not whether exemption rates decrease, but whether vaccination rates increase. And it is possible for SB 277 to significantly decrease California’s exemption rates, but do little to increase its vaccination rates. If many California parents remove their children from schools and daycare centers, rather than have them vaccinated, then these children will receive neither exemptions nor vaccines.
Suppose, though, that some parents who would have requested nonmedical exemptions prior to SB 277 going into effect will now choose to vaccinate their children, rather than lose access to schools and daycare centers. Will this vindicate SB 277? Maybe. But what if there were other ways California could have increased vaccination rates without eliminating nonmedical exemptions? For example, states can significantly increase vaccination rates if they make it more difficult to receive exemptions, even if they continue to allow some vaccine refusers to receive nonmedical exemptions. If there were another way for California to significantly lower nonmedical exemption rates (and increase vaccination rates), while maintaining universal school and daycare access, then perhaps California should have gone another way.
I am not merely speculating about potentially preferable alternatives. In just 2012, California passed AB 2109, a law that made it more difficult for parents to receive nonmedical exemptions. This law required parents to consult with healthcare professionals if they wanted their children to receive nonmedical vaccine exemptions. Preliminary results indicated that AB 2109 was working. Exemption rates were down and vaccination rates were up. I do not know what caused California’s legislature to give up on its new law so quickly, though there is reason to think that SB 277’s co-sponsors – State Senators Richard Pan and Ben Allen – were responding to the 2014-15 Disneyland measles outbreak, and were unmoved by the success of AB 2109. But if California’s legislators eliminated nonmedical exemptions because they were focused on a highly publicized event (rather than on statistical information about the consequences of AB 2109), then we have further reason to be skeptical about SB 277. (Consider that a common complaint about people who refuse vaccines is that they overstate the likelihood of rare vaccine complications because media reports and online sources make emotionally evocative examples of vaccine complications easily ‘available’ in memory. It would be striking (if not surprising) if California’s adoption of SB 277 were influenced by a similar tendency to focus on high-profile and easily recallable harms.)
But back to SB 277: We ought to pay attention to the various potential costs of this law, since alternatives to SB 277 (like AB 2109) may have been less costly. The most obvious cost of SB 277 is that some children will be denied access to school and daycare. But there are likely to be other downsides. For example, activist groups have already called for parents to pressure smaller private and charter schools to refuse to exclude unvaccinated children, on the grounds that enrollment-dependent schools will not withstand that kind of economic pressure. Another possibility is that parents will commit acts of civil disobedience and compel police to use physical force to remove their unvaccinated children from school grounds. (Even staunch advocates of mass vaccination programs may waver when they see officers carting children away from schools in police vans.) More generally, we should worry that SB 277 will alienate some parents and families from public life, and that this law will unnecessarily cultivate resentment towards government among a group of people whose dispositions already make them unsympathetic to collective projects. If AB 2109 could have increased vaccination rates without incurring these costs, then we should regret California’s decision to abandon AB 2109 so quickly.
But enough about the (unknown and relative) costs and benefits of SB 277. I now turn my attention to the different kinds of moral arguments people have made on behalf of this law. In particular, I reflect on arguments for SB 277 (and coercive vaccination, more generally) that appeal to some combination of paternalism, harm prevention, and fairness.
II. What should we think about the various kinds of moral arguments people have made on behalf of SB 277?
On paternalism: One reason to support SB 277 is because you think this law will have good consequences for children who would otherwise have received nonmedical exemptions, and because you think states should use coercion to promote children’s interests. For example, Paul Offit argues against religious vaccination exemptions because unvaccinated children are at greater risk of infection, and because parents should not have a legal right to “martyr their children.” I take for granted that there is good reason for paternalistic intervention in the lives of small children. Someone has to be their pater or mater. But we may question whether particular interventions will promote children’s interests and whether (and when) states may intervene paternalistically in children’s lives.
I’m not confident SB 277 will promote the interests of children who would otherwise have received nonmedical exemptions. First, this law will make some children worse off. Committed vaccine refusers are not going to vaccinate their children, and they may instead allow them to be excluded from school and daycare. Their children will receive an indirect benefit if SB 277 leads other parents to vaccinate their children (since that will strengthen herd immunity). But such a benefit seems unlikely to offset the harms associated with exclusion from school and daycare. Second, it’s not obvious whether children who become vaccinated as a result of SB 277 will be made significantly better off. Many vaccines do not provide a significant net benefit for healthy children under conditions of herd immunity. If the risk of infection is extremely low – because enough other people are vaccinated – then the net benefit of vaccination to a healthy child may be low. Of course, the expected benefits of vaccination to a vaccinated person will be higher when herd immunity is vulnerable or nonexistent. But even then, some vaccines may not have a significant net benefit for healthy children. For example, healthy children have almost no risk of developing serious complications from rubella; the main reason we vaccinate against this disease is to protect fetuses.
The mere fact that an act promotes a child’s interests is not usually a sufficient reason for government interference. It would surely be inappropriate for the government to kick my kids out of school if I didn’t pack healthier snacks in their lunches or read them more stories at bedtime. I don’t have a clear conception of how large the net benefits have to be to justify state interference in family life, but I think the benefits need to be significant. And if I’m right, this places pressure on advocates of coercive vaccination policies – like SB 277 – to show that vaccination is a significant net benefit for vaccinated children, or to acknowledge that their defense of coercive vaccination programs sometimes relies on other sorts of arguments, including arguments from harm prevention and fairness.
On harm prevention: Another reason to support California’s SB 277, and similar efforts to end nonmedical exemption policies in other states, is to protect unvaccinated children from infecting others. SB 277 will cause fewer unvaccinated children to be enrolled in schools and daycare centers. Unvaccinated children are much more likely than vaccinated children to infect other people with vaccine-preventable diseases. And a core purpose of the state is to use coercion to prevent people from harming each other. So, a commitment to harm prevention may seem to offer a strong justification for efforts to eliminate nonmedical exemptions, since these efforts will make disease outbreaks much less likely in schools and daycare centers. I am sympathetic with arguments for SB 277 that are grounded in a commitment to harm prevention, but I think the empirical and moral aspects of these arguments are more complicated than they may first appear to be.
It’s true that SB 277 will keep most unvaccinated children away from schools and daycare centers, but unvaccinated kids don’t have to go to school or daycare to infect people. They can infect people at church, through overseas travel, and at Disneyland. Whether SB 277 will prevent harms depends on how many more children it causes to become vaccinated, rather than how many children it excludes from schools and daycare centers. And we don’t know how effective SB 277 will be at increasing California’s vaccination rates.
Also, unvaccinated kids are not likely to infect anyone when herd immunity exists. And even if unvaccinated children do infect others, herd immunity will prevent those infections from leading to outbreaks. So, under conditions of herd immunity, SB 277 may prevent small harms, but herd immunity will continue to be responsible for preventing major outbreaks. But this means SB 277 may not prevent significant harms and, therefore, may not be a case of permissible state coercion.
If you want to make stronger case for SB 277’s potential to prevent harms, you have to show that herd immunity is vulnerable, and that SB 277 is necessary to maintain it. But this may be a difficult task, since we are currently enjoying record high national and state vaccination rates. However, these optimistic figures obscure forces that are likely to undermine herd immunity in the near future. In recent years, government programs (like Vaccines for Children) have been successful at vaccinating children who would otherwise have remained unvaccinated due to their parents’ inability to pay for vaccines. And recent successes in vaccinating underprivileged children have so far prevented rising rates of vaccine refusal from causing declines in national and state vaccination rates. But if rates of vaccine refusal continue to rise, programs like Vaccines for Children will no longer be able to compensate; there are only so many children who are under-vaccinated due to poverty. So, herd immunity may be more vulnerable than it appears to be, and a commitment to harm prevention may be a strong foundation for coercive vaccination programs after all.
To clarify: A commitment to prevent harms justifies state interventions in family life only when those interventions significantly reduce the risks of serious harms. Consider the fact that I risk injuring pedestrians every time I drive my children to school. I take for granted that the state could decrease the risks to pedestrians if it required me to walk my children to school. (This is feasible; the school is only a mile away.) But should the state be permitted to exclude my children from school if I don’t stop driving them? No, because I don’t think driving my children to school places pedestrians at a significant risk of serious harm. Similarly, someone who wants to kick unvaccinated kids out of school needs to show that excluding those children will lead to significant reductions in the risks of serious harms. Otherwise, she needs to rely on other kinds of arguments, e.g. of paternalism or fairness. Again, I think this can be done, but doing it requires more than a demonstration that SB 277 will prevent some harms.
On fairness: A further reason to eliminate nonmedical exemptions is to prevent people from unfairly free riding on the work other people have done to generate and maintain herd immunity. Here, the idea is that it is wrong for parents to let their children take advantage of the benefits of herd immunity without contributing to herd immunity (by vaccinating their children). If the state makes it more difficult to be a vaccine refuser, e.g. by eliminating nonmedical exemptions, then the state will discourage people from free riding, which is something the state ought to do. I am sympathetic with this kind of argument, but I think it faces serious problems.
To begin, it’s not clear why free riding is supposed to be wrong. The mere fact that other people have acted cooperatively to create a good (that I am able to enjoy) does not generate an obligation for me to participate in that cooperative activity and contribute to that good. After all, I don’t have to help my neighbors pay for fireworks, even though I enjoy the colorful nighttime displays my neighbors provide. And the government certainly should not use coercion to get me to pay my neighbors for putting on their fireworks shows.
But even if I do have an obligation to contribute to some cooperative activities that generate goods I enjoy, it’s not obvious how this obligation could arise in the case of herd immunity. The critic of free riding demands that people pay for the public goods they enjoy. But it’s not clear how people who ‘pay’ for herd immunity can ‘enjoy’ it. People who contribute to herd immunity – by getting vaccinated and generating individual immunity – do not receive the direct benefits of herd immunity; their individual immunity protects them. Instead, the direct benefits of herd immunity seem only to accrue to people who do not contribute to herd immunity through vaccination. Accordingly, it may be incoherent to claim that it is unfair to refuse vaccines. (Of course, it does not follow that the state should do nothing to reduce rates of vaccine refusal; considerations of paternalism and harm prevention may justify coercive vaccination programs, even if considerations of fairness do not.)
I think things are more complicated than the previous paragraph makes them out to be. First, vaccination does not always generate individual immunity. And even when it does, individual immunity can fade over time. So, vaccinated people do rely on the direct protection herd immunity provides, though they may not know they do. Second, herd immunity contributes to a wide set of goods; protecting individuals from infection is only the most immediate one. Herd immunity prevents disease outbreaks, and disease outbreaks undermine economic growth, social trust, political stability, and school attendance. We all benefit when we live in societies that are free from regular outbreaks of vaccine-preventable diseases, even if we are not individually vulnerable to infection. Fairness considerations may provide a strong foundation for coercive vaccination programs after all.
To conclude: I am skeptical that SB 277 will do much to increase vaccination rates in California, and I’m even less certain that SB 277 was California’s best option for responding to its rising exemption rates. But, as I’ve said, a lot depends on empirical considerations that we are not yet in a position to evaluate. Furthermore, I am unconvinced by some of the moral arguments that have been advanced on behalf of SB 277 (and on behalf of similar efforts to eliminate vaccine exemptions elsewhere). I think considerations of paternalism, harm prevention, and fairness count in favor of eliminating exemptions, but I think arguments that invoke these considerations must be attentive to a wider array of factual and moral considerations than advocates of these arguments sometimes suppose.