Wednesday, July 27, 2011

For the People or For the Person?

One of the arguments that I hear fairly often regarding the recommended childhood vaccinations is that the government has no right to force someone to undergo a medical intervention or procedure, that personal liberties trump concerns about public health. This got me wondering how those who are opposed to vaccines in some regard and believe that vaccines should not be "forced" upon people feel about how the government should respond to someone who has a highly communicable disease.

So for them, I have a couple questions:
  • If someone has been diagnosed with a communicable disease and is contagious, does the government (city, state or Federal) have the right to detain or quarantine that person? If so, what are your reasons for thinking so? If not, why not? What happens if he/she infects others?
  • If someone has not been diagnosed (e.g., they haven't been to a physician yet, but should reasonably know that they are currently sick), but does show signs or symptoms and is contagious, can or should they be held responsible if they spread their disease and cause an outbreak? If so, why and how should they be held responsible and by whom? If not, why not?
What brought these questions to mind is that I recently reread the U.S. Constitution, which states in its opening (emphasis added):
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The way I read that, the Federal government has a Constitutional duty to ensure and provide for the well-being and health of the people it governs. But in the issue mentioned above, those having or sympathetic to the anti-vaccine stance view an individual's welfare as more important than the welfare of the public. So where should the government's role lie when these two things come into conflict?

It is well established that the diseases prevented by the recommended vaccines can pose a threat not only to individuals, but to society at large. Science has also shown, through years of study both in the U.S. and abroad, that vaccines are reasonably safe in comparison to those diseases. Given these, refusal of vaccines is a risky behavior, both personally and socially.

There is nothing wrong, in and of itself, with an individual choosing for themselves to engage in a risky behavior. People do it very frequently: choosing not to wear a seatbelt, hiking in the wilderness, opting to undergo an elective medical procedure, using the wrong tool for the job, playing mumbley-peg or what have you. When the individual's choice will only affect themselves, I have no problem. It is your health; it is your life. You can risk it how you will.

However, when your choice has a significant effect on the health or well-being of someone else, someone who was not involved in your decision, then your right to engage in risky behavior should be attenuated or even denied, depending on the impact. There will be consequences. We have ready examples of this, as well: you can choose to get drunk, but you are not allowed to drive while drunk; you can own and fire a weapon, but you are not allowed to do so recklessly; you can swing your fists in the air all you want, but you are not allowed to swing your fists into someone else. And, if you are infected with a highly contagious disease (e.g., tuberculosis or typhus), you may not be allowed to wander about in society.

The choice to not vaccinate is not simply a personal choice. It will affect others. If you choose to leave yourself susceptible to infection, you are also making a choice for every other person with whom you come in contact who is not immune. It would be like having a pistol that has a chance of backfiring, thus injuring yourself, and fires intermittently when the trigger is pulled, and then going out and randomly pointing the gun at those you meet and pulling the trigger. There's a chance that everyone will be fine, but there's a greater chance that you will cause injury to another person or even death. Leaving yourself open to preventable diseases is similar, except the bullets are microscopic, and you may not always be aware that you are pulling the trigger or that you even have the pistol. I can't imagine that any sane person would view the example with the wonky pistol as allowable. How, then, can any sane person think that leaving oneself open to a preventable disease, when you have no valid medical reason to refuse a vaccine with a long history of safe and effective use, is okay? At what point can the government step in and prevent you from brandishing your treacherous pistol?

That brings us back to my questions above. To those who read this who feel that vaccine should not be required for children to attend school or day care, that parents should be able to decide whether or not their child should receive a vaccine, based solely on personal or religious reasons, rather than for medical contraindications, and thus pose a risk to the other children in the school or day care, I really am curious of your answers to these questions:
  • If someone has been diagnosed with a communicable disease and is contagious, does the government (city, state or Federal) have the right to detain or quarantine that person? If so, what are your reasons for thinking so? If not, why not? What happens if he/she infects others?
  • If someone has not been diagnosed (e.g., they haven't been to a physician yet, but should reasonably know that they are currently sick), but does show signs or symptoms and is contagious, can or should they be held responsible if they spread their disease and cause an outbreak? If so, why and how should they be held responsible and by whom? If not, why not?
Feel free to leave your answers to these questions below, or e-mail me.


  1. The unvaccinated pose no risk to anyone since they, simply by being unvaccinated, have no illness.

    Once you have an illness you could put someone at risk, so the government, to protect the rights of others to not be put at risk, can act. The question then becomes should it act and to what degree. Is the illness the flu? I don't think you're suggesting the government quarantine each and every person coming into contact with a case of the flu. The measles? Perhaps, but it's pretty mild and most can protect themselves against it. The government doesn't have unlimited resource so to spend a million dollars to attempt to quell a small measles outbreak seems overly aggressive. Besides if it were not for the immoral act of forced vaccination, the measles might be too prevalent to contain in the first place. And if someone catches the measles from someone else who knowingly goes around with it, well, I'm sure this happens with the flu a lot but I don't see a lot of lawsuits.

    As to your final example, what's reasonable? If I have a cough should I suspect pertussis? Lots of adults have pertussis. Are we going to track them down to see who catches it from them? Other areas where the government has a role don't allow the expenditure of unlimited resources. For example if someone steals my car I don't expect the police to shut down the US / Mexican boarder and send out a police helicopter to find it. They'll fill out a report and tell me to get an alarm on the next one.

  2. Robert,

    You suggest measles is "pretty mild," yet the rate of complications is rather high. About 5%-10% of cases will have some complication, such as diarrhea, ear infection (with possible hearing loss) or pneumonia to more severe complications like encephalitis (leading to deafness and/or mental retardation) or death, at a rate of around 1-2 per 1,000 cases. The small outbreak in Minnesota (21 linked cases) had 14 of those cases hospitalized. It isn't a "mild" disease, like a cold is mild. Furthermore, once infected, a person is contagious before any symptoms appear.

    As to pertussis, yes, a lot of adults do get pertussis because they do not keep up with their booster shots (immunity from both infection and vaccination wanes in 3-20 years). And we have seen the result of that in California, with over 9,000 cases last year resulting in 10 deaths and 804 hospitalizations.

    Your opinion seems to be that the government has no authority to take preventative action, only reactive action, and that even in those cases, they still shouldn't do anything because the cost is too high and logistics unfeasible. In short, do nothing and let diseases do what they will, but that is an abdication of the government's responsibility to protect the general welfare.

  3. Robert,

    You also say that "most [people] can protect themselves against [measles]." I'm curious what you mean by this, as the only reliable means of protecting oneself from this disease are to:

    1) Gain immunity through vaccination; or
    2) Purposefully become infected in order to become immune; or
    3) Avoid all contact with people and avoid any enclosed spaces in which other people have been for at least two hours.

    Now, the first one carries some very minor risks of an adverse reaction, but is, for the vast majority of individuals, safe. The second carries much higher risks of complications than the first option, by orders or magnitude and has the added risk of spreading the disease to others. The third is the safest, but the most socially pathetic; good for hermits and lone mountain men, but a losing proposition for anyone else.

  4. You're death rate is way off. Look at France today, only 1 death per 2,000 reported cases.

    Wikipedia : As of May 2011, over 17,000 cases of measles have so far been reported from France between January 2008 and April 2011, including 2 deaths in 2010 and 6 deaths in 2011

    And those deaths appear (due to limited information) to occur primarily in those with underlying conditions. The hospitalization rate is difficult to access due to limited information. But it's at odds with both European rates today and rates in the pre-vaccine era - 48,000 hospitilizations out of an estimated 4 million cases.

    I disagree that it is the government's job to protect the general welfare. If it were there would be no area safe from government intrusion. The government is instituted to protect rights (see the Declaration of Independence) and stop aggression against the innocent. Since the unvaccinated have violated no ones rights, the government has no moral rationale to target them

  5. Robert,

    France has been fortunate that the death rate has only been half of what would be expected, though 1 death per 2,000 cases is still quite high, and it is thousands of times higher than the risk of death from MMR. Though focusing solely on deaths ignores the other complications of measles, the risks of which are also hundreds to thousands of times more likely than a serious adverse reaction to the vaccine.

    As to the hospitalization rates, I am citing the Minnesota Department of Health for the number of hospitalizations during the recent measles outbreak there, and the California Department of Health for the number of hospitalizations during last year's pertussis outbreak. These can be confirmed by them (though the Minnesota department may be slower to respond, currently, due to the state's budget crisis).

    Read again that bit I quoted from the Constitution. The U.S. government was formed, in part, to promote the general welfare. That is part of the highest law of the land. The purpose of the government is to ensure the welfare of the populace that is governed. That sentiment is also in the Declaration of Independence and the Federalist Papers.

    At any rate, your view seems to be that the role of government is to protect the rights of the individual, rather than the rights of the public. In the case of the unvaccinated, your view is that the government can take no action to prevent anyone from becoming infected, but can only take action after a person is infected, and then only in an extremely limited manner, if indeed at all. In short, the rights of the individual trump the rights of the public, and government should ideally do nothing. Is this an accurate summation of your position?

    So, if the rights of the individual trump the rights of the public, then what responsibilities does the individual have, since no right comes without some responsibility? If they are the cause of an outbreak, what repercussions should they face? If they can demonstrably be shown to have been the source of someone else's infection, and that other person suffers a serious complication or death, what responsibility does the individual have?

    You say that the unvaccinated have not violated anyone else's rights, but that is not true. By choosing to not vaccinate, you choose to increase other people's risk of disease and jeopardize their right to good health. As far as the government is concerned, they do have a moral obligation to prevent outbreaks of disease within the populations they govern, if such means are available and do not themselves pose a greater risk than the threat of the disease prevented.

    I am also still curious of your response to my second comment above regarding how to prevent measles. What are your thoughts regarding the questions I raised?

  6. The public is just a collection of people and it's people that have rights, Anyway, the public rights (held by the people that make up that public) about which you speak of are positive rights and as such indefensible. They are indefensible because they come at the expense of the negative rights of others. That's why the "right" to government funded health care is immoral - someone else must be forced to pay for it.

    As to your second argument regarding the options available to those not wanting to catch the measles, I'm not sure what you're looking for. As to the third option, that would only apply, at this time, to areas in which cases or exposures have been reported. Either way people have to look to themselves and not others for protection - regardless as to whether or not it's convenient. If it's too hard, then you'll have to risk catching a mild illness. Finally, if others see vaccines in the same benign way you do and buy into the herd immunity concept, they're free to vaccinate to protect others.

    As to the measles causing 1-2 deaths per thousand, perhaps you could, since you're so enamoured with that number, explain why it differs from today's European numbers and those of the pre-vaccine era. And remember French cases are reported and not total.

  7. your view is that the government can take no action to prevent anyone from becoming infected, but can only take action after a person is infected, and then only in an extremely limited manner, if indeed at all.

    Not exactly. I think I stated that if someone was infected or likely to be infected the government could act to restrain that persons action, therefore working to stop others from being infected. The degree to which the government responds would depend on the illnesses' severity - among other things. Personally, in regards to the measles, I'd favor limited action.

    Finally, as to one person's rights trumping others, rights coexist - with no one's rights being more important. I think Jefferson said it best with these words:

    ...rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others

    I'll respond further tomorrow to the general welfare question

  8. Robert,

    Jefferson also wrote "No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him; every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him." (

    When you choose not to prevent infection, when such means are available, you also choose to expose others to the risk of infection, as well. You are taking away their choice as to whether they wish to be exposed to a disease or not. If your choice only affected yourself, then I would probably agree with you that the government has no right to impel you to ensure your own health. However, your choice does not only affect yourself. Despite your protestations that no one person's rights are more important than another's, you are, whether you realize it or not, elevating your own rights above those of everyone else around you. Since you seem to believe that a person's right to choose whether or not to prevent illness is their own choice to make, and that you presumably believe that it does not affect others, then what responsibility comes with that right should that choice, in reality, impact someone else?

    As to my summation of your position, I believe I did get it correctly. You would place the government primarily in a reactionary position - it can take no action until an infection actually occurs, and then any action it does take should be limited or, due to expenses and logistics, non-existent.

    Regarding prevention, you stated that most people could protect themselves from the measles. I would like to know how you propose that people accomplish this, other than the three methods I outlined above.

    Finally, as regards the risk of death from measles being about 1 per 1,000 (my earlier figure of 1-2 per 1,000 combined the risk of death and encephalitis for brevity) vs. the death rate in France being 1 per 2,000, I do not have ready access to the data and other pertinent facts to properly address the difference. It may be that they have been lucky, that they have caught serious cases early enough to prevent death, that more people than average are getting prompt medical attention, that a greater portion of cases is in adults than expected, resulting in a greater proportion of milder cases, etc. Or, it may simply be a numbers game; the risk is about 1:1,000 for each person who is infected. If enough time passes and more people are infected, we may see that death rate creep closer to the expectation of 1:1,000, just as if you flip a coin 20 times, it may come up heads only 25% of the time, though the expectation is 50%, as each individual coin toss has a 1:2 chance of coming up heads. As the coin is tossed more times, the average will approach the expected odds of heads occurring 1 out of every 2 flips.

  9. Gentlemen, no need to get all Antonin "Original Sin / Original Intent" Scalia on this. Let's just see where the case law has taken us:

    Jacobson v. Mass. ( in 1905:
    The right of the individual is superseded by the common welfare. The decision also upheld the States' police powers in enforcing laws to promote the common welfare.

    Of course, Mr. Schecter will speak about laws determining legality, not morality. (Three to four steps ahead of you always, Mr. Schecter. I attribute it to my days playing chess and debating Mom's law school friends as a teenager.) We'll hit on that a little later.

    Speaking of later, in 1922, vaccination requirements were challenged. Again, the court sided with the State government. Again, the general welfare supersedes the individual right.

    Then, in 1944, in Prince v. Massachusetts (what is it about Massachusetts, Todd?), the Court said that religious freedoms that come into conflict with the well-being of a child and of society can be regulated by the State.

    It wasn't until the 60's and 70's that the Christian Scientists lobbied the New York State Assembly to allow for religious exemptions to vaccination requirements. God, being one to not mince words, brought on the Daycroft School, run by the Christian Scientists, a polio outbreak unlike any seen since in the US since vaccination started. But that's beside the point. Let's look at morality...

    Laws are not always moral. Jim Crowe laws are a perfect example of this. Other laws are moral, like a law that makes it illegal for someone to physically assault another person. Of course, this is somewhat subjective. Your views, Mr. Schecter, are that it is immoral for the Big Bad Vodoo Government™ to "force" anything upon you. But it really depends on your definition of "force".

    To my knowledge, there hasn't been a "forced" vaccination in the United States since the days of smallpox. Correct me if I'm wrong, but none of us at the health departments carry weapons. No one is holding a gun to your head saying, "Take the vaccine, mother____er!" (Samuel Jackson's voice, for effect.) See, that's my definition of "forced", where you have no option or when your only option is physical harm as retribution.

    "Forced" is not, in my opinion, when the school requires you to be vaccinated. In those instances, you have the option to pick up and go to a private school that will accept your unvaccinated 15 year-old whose never, ever, for any reason, gone to the doctor. Or you can home-school her. Her right to go to a public school unvaccinated does not legally nor morally supersede the rights of the other children to be exposed to an infection that is deadly at worse and crippling - if only for a few days - at best.

    "Forced" does not mean that you are not allowed to go to a doctor of your choice if you are not vaccinated. Your right to go to a doctor of your choice does not supersede the rights of the other patients to be protected from your potential carrier status especially when they already have underlying health conditions.

    "Forced". You keep using that term, but I don't think it means what you think it means. You're all aflutter about the federal government when it's the local and state governments that "force" you to do all these things.

    Oh, and your little quip about health departments being "vaccine dependant (sic)", they're not. You're in the business of business... I'm sure you know how much of a "profit" vaccines really are, even for the manufacturers.

  10. @Ren

    Thanks for the case law bit. I was heading there soon, but you saved me the hassle. And on the Federal vs. Local governments, good points; that's why in my original questions I mentioned city, state and Federal levels.

    One thing I've noticed, though, is that Robert seems to hold two conflicting ideas: he argues that the rights of the individuals are more important than the rights of society when it comes to the choice of whether or not to prevent disease through vaccination, yet he also acknowledges that the rights of society supersede the rights of the individual when a dangerous infectious disease justifies quarantine of the infected individual (denial of liberty).

    Another image that popped into my head yesterday was this: does the government (again, city, state or Federal) have a right to prevent an individual from acquiring and carrying around on their person an unstable, explosive substance? If so, why? If not, why not?

  11. The term "negative rights" intrigues me. I have always gone along with the idea that having rights mean you also have duties e.g. the right to bear children means you have a duty to bring them up responsibly, or the right to bear arms means you have a duty not to put those weapons where they would harm innocent people. Otherwise, society fails to function smoothly.

    I suspect that this sort of responsibility is what Schechter means by "negative rights". He doesn't like responsibility to go with his privileges? That's antidemocratic talk, pardner.

    In fact "...rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others" <- that's anarchy. And really bad English. But mostly anarchy.

  12. The unvaccinated pose quite a large risk, actually.

    I work with children with autism, so the question of whether or not to vaccinate your children is a hot issue among parents. First of all, the only major study that linked vaccinations and autism was recently debunked when the scientist admitted he made up data. Nonetheless, people want to keep their kids unvaccinated, and there are movements to create unvaccinated communities, especially in California.

    Now, take an entire community made up of families with unvaccinated children, add in a single case of a communicable disease (say, measles, or polio), and you have an outbreak just asking to happen. We had almost killed polio in this country. But people who think it's wrong to vaccinate have helped revive it.

    When there's one random unvaccinated person surrounded by vaccinated people, that person poses no real risk, because they can't catch a disease from anyone around them. But a society that is not vaccinated is a society that spreads diseases that just don't need to happen.

  13. @Tim Drummond

    Minor correction, the researcher who cooked his data, Andrew Wakefield, did not, to my recollection, ever actually admit to doing it. Others found out and displayed the evidence of his misdeeds, but I don't think even then he ever actually owned up to it.

  14. promote the general Welfare

    Defending (secure the Blessings of Liberty) liberty is the way to bring about the geneal welfare. You might think it’s the creation of a nanny state, but my reading of the preamble doesn't require contradicting the liberty part. Yours does. Either way the constitution is not something we're by living by today. After all the founders did talk about a limited federal government. How’s that working out?

    As to your Jefferson quote endorsing unwanted vaccination, that's silly. There is no way one could read the historical record and come to that conclusion. Besides if one could, it would contradict everything he'd every written on liberty. But if you have some information further expounding on Jefferson thoughts on duty, I'd love to see it

  15. @Teapot

    I'm not big on democracies. I prefer constitutional republics.

    Democracy is two wolves and a lamb voting on what to have for lunch
    Ben Franklin

  16. Tim
    The polio's back? Who knew. And I'd love some more info on these unvaccinated communities sprouting up

    I would like to know how you propose that people accomplish this, other than the three methods I outlined above.

    Why must there be more than three methods???

    In the field of law, the word force has two main meanings: unlawful violence and lawful compulsion. i.e., compulsory vaccination

    Private school doesn't get you out of forced vaccination. See state laws. Besides when the government creates a public school system and taxes you to pay for it whether you go or not it creates substantial hardships for families not attending due to the vaccine requirement. So this is simply another way the government coerces and punishes those who don't comply

    As to the morality and law let's return to Jefferson:

    I do not add "within the limits of the law" because law is often but the tyrant's will, and always so when it violates the rights of the individual.

  17. Robert,

    "Either way the constitution is not something we're by living by today."

    That is something that would surprise a good many individuals, not least of which being those who have sworn to uphold said Constitution.

    As to Jefferson, he was a big proponent of health: "An attention to health then should take place of every other object." He supported a law that created government-run health care: the Marine Hospitals. But that is a tangent. We can sit quoting Jefferson back and forth all day and get nowhere.

    Regarding the three means of preventing infection with measles I listed, which did you have in mind when you said that most people can prevent themselves from being infected? Or did you have a different option in mind? Can you please specify what specifically you had in mind, as well as your reasons for those means of prevention?

    Regarding "forced" vaccinations, Robert does appear right, at least insofar as how "student" is defined and that private schools are also subject to state immunization requirements based on that definition. However, parents still have the option to home school or private tutoring, and thus are not "forced" to immunize.

    I'm also curious of your opinion on another question I asked above: does the city/state/Federal government have the right or obligation to prevent you from acquiring and carrying around on your person an unstable, explosive substance? Why or why not?

  18. Robert, you're pretty pissed-off at the government, aren't you? I mean, seething type of anger. In your opinion, when did we abandon the Constitution?

  19. One is not allowed to endanger other people by driving on public roads without a license, which they get by showing they know how to operate the vehicle and understand the rules. One should also not be allowed to send their kids to publicly funded schools if they ignore other public health policies like protecting both their children and others from disease (unless there is a real medical exception, which means that child will depend on herd immunity).

    There are plenty of private schools (even in California) that allow unvaccinated children to attend. It is also not a coincidence that those are the schools that have outbreaks of vaccine preventable diseases.

    It was an outbreak of measles in a private high school three miles from my home that prompted me to get my younger children their second MMR vaccines early (it was the same year the age for the second dose went from 11/12 to four or five years old, they were about six and nine).

    If you want to find a private school that allows unvaccinated children, just look for the ones that have outbreaks of vaccine preventable diseases. Many of them include the word "Waldorf" in their names.

    Then there is homeschooling. So what if a parent has to quit a job to tutor the kids? I had to quit my job to deal with the multiple neurologist, therapist , and other medical appointments for my son.

    Since he had a history of seizures he was denied protection from pertussis (thanks Barbara Loe Fisher and Lea Thompson!) at a time our county was having a pertussis outbreak (again, thanks to those ladies for that!). I could not put him in a daycare, nor could I afford a nanny.

    Perhaps those who wish to ignore public health policies can gather together and create their own little schools. That way they can teach their little darlings how they are superior to the rest of us, how science does not know everything, that child mortality is higher now than it was a century ago, and that the diseases are not really that bad.

    With luck their children will not become this kind of news story.

    (Ren, to you sense I have a "seething type of anger" towards a certain group of people?)


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