Risk & The Politics of Vaccination
By Professor Jessica Flanigan (The University of Richmond)
September 10, 2015 Picture: Carlos Reusser Monsalvez/Flickr
This article is part of The Critique’s September 2015 Issue on Vaccines, Belief & Autonomy
In general, public officials should try to avoid using threats and penalties to compel autonomous adults to become vaccinated. For one thing, not all conditions are so severe or communicable as to require compulsory mass immunization for the protection of the public, especially because voluntary vaccination can be sufficient to provide herd immunity. For another thing, public officials should not use coercion when alternatives, such as incentive programs and public information campaigns, can be used instead. And there are often less burdensome ways to achieve the benefits of mass immunization, such as requiring immunization for children and excluding unvaccinated people from public services and employment opportunities to mitigate the damage they can do. Though unvaccinated people would be made worse-off by these policies they are less coercive because people do not have unconditional rights to the provision of all public services.
But we can imagine circumstances, such as the potential resurgence of measles or some yet-unknown communicable disease, that could seemingly warrant compulsory mass immunization if the threat were severe enough. In these cases, where achieving herd immunity is necessary to prevent many deaths, could public officials permissibly use coercive threats and penalties to achieve mass immunization?
If I were a consequentialist, this would be an easy question. The consequentialist answer is that public officials should use coercion when the benefits achieved by coercion (however understood) outweigh the costs of a coercive policy. But I think consequentialism is false. People have rights, such as freedom of conscience and rights of bodily integrity, that cannot be violated in order to achieve a better collective outcome. When Kantians say that persons are beyond price, they mean that you could not violate a person’s rights and justify it by citing numbers such as lives saved or dollars made. To do so is to mistakenly put a price on a person’s dignity—which is priceless.
This is why vaccines are a harder case than it may seem. On one hand, people have rights of bodily integrity and freedom of conscience, and they do not lose these rights just because a lot of other people would benefit if those rights were violated. A person does not lose his right against being pushed in front of a trolley, or run over by one, or killed for his organs simply because treating him in this way would benefit other people. So you might think that a person does not lose his right against being injected with chemicals or forced to take medicine just because injecting him would help others.
On the other hand, people have rights of bodily integrity, which means that it is permissible for them (or others) to defend themselves against threats to their bodily integrity. People should be prevented from firing weapons into the air when bystanders are nearby, even if prevention requires coercion, because shooting bystanders violates their rights. Like being shot, being infected with a transmission of a deadly or severely debilitating disease is a significant violation of a person’s rights, and no amount of compensation could ever make up for this kind of a violation. So you might think that a person should be coercively prevented from transmitting deadly and debilitating diseases when transmission is very likely to harm people.
I take it that this is the core of the debate about vaccines and autonomy. We can illustrate the controversy with three cases:
Blood Conscription: Roger’s blood donation is a necessary component of a broader research database that is expected to save many lives. Because he is religious, Roger refuses to donate. Public officials use coercion to force Roger to provide his blood. Roger’s blood is added to the database and used to prevent many deaths.
Vaccination: Ray’s vaccination is expected to save many lives, but Ray refuses vaccination because he has strong moral objections to the political influence of the pharmaceutical industry. Public officials use coercion to force Ray to become vaccinated. Ray’s immunity is instrumental to the prevention of many deaths.
Gunshot: Every year members of the Remington family each fire a single bullet toward the sky, in honor of their late great-grandfather. The risk that any individual Remington’s bullet would hit a bystander is very low, but the family is very large and together the practice kills many people each year. Public officials use coercion to stop the Remington family tradition. The end of the tradition prevents many deaths.
Public officials acted wrongly when they coercively took Roger’s blood. But it is permissible to coercively put an end to the Remington family tradition. What is the difference between these two cases, and where does the right to go unvaccinated fall?
The reason that Roger has a right against interference and the Remingtons do not is that Roger is doing nothing wrong by simply existing in the world as a person with blood, and the Remingtons are doing something wrong by firing their guns in the air, even if individually each Remington is unlikely to harm anyone. For this reason, Roger is not liable to be interfered with for the benefit of other people. But the Remingtons are liable to be interfered with to prevent them from harming other people with their bullets.
One may reply that there are other explanations for divergent intuitions on these cases. For example, Roger’s conscientious objection to vaccines was religious, whereas Ray had deeply-felt political reasons to oppose vaccine compliance and the Remington family tradition was a personal commitment. Some people think that religious matters of conscience are different from political or personal commitments, but I am skeptical that this will solve our problem in these three cases. If Roger merely had a personal aversion to blood donation and the Remington’s were a religious sect instead of a family, it wouldn’t change the fact that Roger had a right to refuse donation and the Remingtons ought to have been stopped.
It also doesn’t matter how burdensome coercive enforcement is, or how deeply felt matters of conscience are. Imagine that Roger is religious, but he doesn’t really care that much and it wouldn’t be that traumatic to take his blood, while being a Remington is central to the identity of everyone in the family and the end of their tradition is a serious blow to their values from which they would never recover. Still, Roger gets to keep his blood and the family tradition is forbidden.
So is Ray more like Roger or the Remingtons? Some people think Ray is like Roger. By refusing vaccination, Ray isn’t doing anything. Like Roger, who just exists in the world with his beneficial blood, keeping it to himself, Ray just exists in the world with the unvaccinated blood he was born with. How could it be wrong to exist in the world just as you are?
This argument would work, if existing in the world were all Ray were up to. But like the Remingtons, by remaining unvaccinated Ray may take chances with other people’s lives. The Remingtons acquire guns and bullets. Ray acquires communicable diseases. The Remingtons fire the bullets in the air. Ray spreads diseases to other people. Some Remingtons kill bystanders. Some people like Ray kill bystanders. Bystanders have rights of self-defense to prevent the Remingtons from harming themselves. Public officials may permissibly prevent the Remingtons from killing people. Bystanders have rights of self-defense to prevent Ray from infecting them. Public officials may permissibly prevent Ray from killing people.
This analogy only works if a few conditions are met. First, public officials can only prevent the Remington family tradition because there is a real and substantial risk of incompensable injury. Not all wrongful injuries merit preemptive intervention. Some wrongful injuries can be redressed through insurance requirements that compensate the victims. So we are assuming that the harm is fairly substantial. We are also assuming that preemptive intervention is necessary to prevent the Remington’s from injuring non-consenting bystanders. The Remingtons don’t have a private island where they can honor their late great-grandfather without putting anyone at risk, or it is not feasible to ask them to travel there.
So too, public officials can only prevent Ray from contagious transmission if there is a real and substantial risk that the group of vaccine refuses like Ray actually will cause wrongful and incompensable injury to others that can only be prevented by requiring immunization. Therefore, this argument does not extend to all vaccines. Tetanus is not a communicable illness, so such a justification would not support compulsory tetanus vaccination. Diseases that are transmitted through sex or needles might not qualify as wrongful injuries, insofar as people are able to consent to transmission or the risk of transmission. Diseases that are extremely rare and hard to transmit, or those that are only a minor inconvenience and not an incompensable injury also will not merit compulsory vaccination for their prevention.
But in principle, insofar as remaining unvaccinated imposes risks of comparable magnitude and significance as the risks that are imposed by the Remington family tradition, people like Ray are liable to be prevented from going unvaccinated. Even though Ray, like Roger, has rights of bodily integrity that are violated by coercive medical procedures, he waives those rights when he uses his body in ways that could cause others injury.
There is a wrinkle in this story: Ray doesn’t necessarily harm anyone by going unvaccinated, he only puts them at risk. Do people have rights against being put at risk? As Rahul Kumar recently argued, we should weigh a person’s reasons for wanting to avoid being put at a certain risk of injury or death against other people’s reasons for wanting to subject them to those risks (Kumar 2015). On this account the magnitude of the risk matters in addition to the severity of the injury. So if based on what we know about each person’s circumstances it turns out that those who are put at risk by those who go unvaccinated have a stronger claim than those who object to vaccination, then it is permissible to require vaccination.
This argument is compelling, but I disagree that the reasons for wanting to subject a person to risks should weigh against a person’s reasons for wanting to avoid the risk of injury. It seems wrong to injure a person who does not consent to the injury even if you have a greater interest in injuring her than she has against being injured. When it comes to risks of injury, as with Ray and the Remingtons, no one knows if they will be the wrongdoers when they impose a risk on others, but people should try to minimize the chance that it will happen. So each person has a duty not to wrongfully injure people, which gives each person a duty to try to avoid wrongfully injuring people too. The duty to respect other people’s bodily rights against death or injury can explain why there is a duty to avoid circumstances where one might wrongfully kill or injure someone.
Put another way, when coercion is necessary, it is clearly permissible for public officials to coerce potential wrongdoers who would otherwise violate another person’s rights of bodily integrity. The vaccine case is a challenge because it is unclear who the wrongdoers are and who the victims will be. However, that doesn’t mean there are no wrongdoers or victims. Even planning to violate someone’s rights, when the plan is very likely to succeed, makes a person liable to preemptive interference. Whether preemptive interference is warranted depends on how likely the wrongdoer is to succeed.
In cases where the risk of injury is great, each person in the set of potential wrongdoers is liable to be interfered with because public officials and members of the set of potential wrongdoers cannot know whose plan will succeed. I suspect that cases like this cannot justify all forms of vaccination. But some diseases are so severe that each person is liable to be interfered with in order to prevent them. Measles is incredibly contagious and deadly. The flu shot saves thousands of lives every year. Vaccines eliminated smallpox. Vaccines may eradicate Ebola. In these cases, where the risks of contagious transmission are high and the injury is severe, compulsory vaccination can be justified.