Compulsory Vaccination and its Limits
Vaccinations are one of the most important innovations of the modern era and have caused many horrible and widespread diseases to virtually disappear. There is now a counter movement which opposes the long held belief in the scientific community that vaccinations save lives. This new movement has its roots in an article which alleged that vaccinations were harmful and unsurprisingly, “has since been retracted, the research discredited and the author is no longer permitted to practice medicine” (Douglas, Jolley Abstract). For the purposes of this article, I will assume that vaccinations indeed do save lives. This new movement induces people to remain un-vaccinated which may cause great personal and public harm depending on the situation. The question is now whether or not the law ought to be used as a means to force people to become vaccinated. Criminal law is especially pertinent to the issue of vaccination because in many cases, people who avoid vaccination put others at risk of contracting diseases. So the important questions are, ‘when are compulsory vaccinations justified?’ and ‘how should they be enacted if compulsory vaccination is just?’ Some justifications for compulsory vaccinations are based upon harm principle rational, whereas other justifications are paternalistic. In any case I will argue that compulsory vaccinations are justified.
Let us begin by reviewing the case for compulsory vaccinations in the context that it could cause harm to others. There is a case of family autonomy, where the family decides what is best for the child. Family autonomy however is limited in that the family may not abuse the child in question. Family autonomy allows families to operate under their own beliefs, thus allowing families to make decisions that may bring harm to the child. If the family is ignorant of the facts about immunization it means that they are not abusing their child. However family autonomy is overruled by the potential harm that could be done to that child. Children cannot be considered morally responsible for themselves. Flannigan says, “parents who refuse to vaccinate their children could also be held liable for parental negligence,” (Flanigan, 22). The child cannot be held responsible for actions that they have little to no understanding of, and are not expected to have understanding of. The parents are the ones that should be held responsible because their ignorance harms not themselves, but their child. Though many of Flanigan’s proposed laws could potentially harm the child in question, it is important to note that his laws regarding mandatory vaccination aim to keep the child from transmitting disease and harming the children of others. There is no retribution motive aimed at the child in these cases. Flanigan is correct in forcing the parent to assume responsibility, by condemning non-immunization of the child to be parental negligence. Mill says “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” (Mill 14). I believe that not immunizing children, though up to the discrepancy of the parent is a case where power must be exercised over family autonomy.
The question then becomes how does one plan to enforce laws for compulsory vaccinations, at least in the case of children. Flanigan’s punishments seem to fit very well in most cases; “Fines can be used to punish wrongful behavior and also to express public disapproval for conduct.” (Flanigan 21). Fines seem to be a very good fit for this kind of behavior, because although the parent is ignorant, they are being punished for imposing a risk on their children and the children of other people. A further deterrent must be imposed as well, “all children in public schools be vaccinated even if their parents are conscientious objectors” (Flanigan 21). Though the child suffers from this law, it is important to make sure the risks that one imposes on one’s child are not imposed on the children of others. However there are cases that deserve much more severe punishment. If an individual does not vaccinate his or her child, and that child dies as a result, then the punishment should be much more severe. Nagel has an analogous thought experiment of a drunken man driving his car “he can count himself morally lucky if there are no pedestrians in its (the car’s) path. If there were, he would be to blame for their deaths and would probably be prosecuted for manslaughter.” (Nagel 29). Let us forget about the moral aspect of the moral luck argument for the sake of drawing the comparisons legally. Just as a parent imposes a risk on their child so too does a drunken driver impose a risk on those around him. In both instances they are punished with a slap on the wrist. However when the results are disastrous, when misfortune and negligence mixes together, it becomes acceptable to punish with greater severity. So just as the driver is punished with manslaughter so to should the parent be charged more harshly.
The case however becomes different when speaking of adults, adults that are accountable for themselves and thus should be allowed to harm themselves as long as they are willing to accept the consequences. The harm principle allows people to do harm to themselves. Harm can be defined as “a setback to an interest” as an interest can be defined as “resources over which a person has a legitimate claim” (Persak 58). Persak goes on to call this an objective view of harm and that this should be the term that is used to tell what harm is legally and justify laws that are made. Flanigan tries to make a case that appeals to individual liberty. She uses the harm principle; take for example her conditions on permissible compulsory vaccination. Flanigan says that vaccination has to prevent a contagious illness, and her justification was “vaccine refusal is not harmful to others because it does not increase the odds that an unvaccinated person will transmit tetanus nor does it reduce herd immunity for tetanus.” (Flanigan 14). Flanigan limits compulsory vaccinations to conform with the harm principle. The harm principle applies in this case as well because as Flanigan says not being vaccinated imposes unnecessary risks on others in the case of contagious diseases. Moreover the harm principle still applies in not allowing unvaccinated people near those with immunosuppressed conditions, increasing the risk. Considering each person has a legitimate claim over their body as per the libertarian view, which commonly uses the harm principle, imposing that risk upon them without consent can be a violation of the harm principle. If the harm principle applies in this case, then similar sanctions should be placed upon adults who do not get themselves vaccinated. A person who does not vaccinate himself and kills an immunosuppressed person, or introduces a contagious disease back into the population should be punished harshly. A fine should be put into place for those who do not get vaccinated for contagious illnesses but cause no harm to others.
The argument now turns to what can be considered a typical case outside of the cases already given. This case is definitive in that the harm principle fails to apply. Consider a perfectly healthy rational person who is under an information asymmetry about vaccinations. The lack of immunizations will not cause the virus to spread, so the risk imposed on others is little to none. In the above cases the risk that is taken is not a negligible one that is imposed on others. An analogy would be, the drunk driver, the driver that imposes this risk would still be at fault for imposing this risk, because the detriment that may occur is so great, however this typical case is more like a sober driver who, while imposing a risk, imposes a much lower risk on others. This becomes much more difficult to justify under the harm principle, because sober driving is permissible as choosing to get a vaccine of a virus that is not contagious should also be. For this I turn to soft paternalism, which can be distinctive from hard paternalism. Soft paternalism “accommodates certain state intervention, when the actor is about to inflict harm upon himself (by himself or by actions of others, to which he consented) when and only when the actor’s behavior is ‘substantially nonvoluntary, or when temporary intervention is necessary to establish whether it is voluntary or not.’” (Persak 17). To understand what voluntary means let us turn to Sandel who says that we can act voluntarily if “we’re reasonably well informed about the alternatives.” (Sandel 95). This account of ‘the voluntary’ shows that unless the individual voluntarily wants to get a disease for whatever reason, it must be the case that they have not been reasonably well informed about the alternatives. Since typically, no rational well-informed person would consent to risking disease, when they could so easily avoid the disease, we can assume that people who are unvaccinated for non-contagious diseases cannot give informed consent to non-vaccination.
Paternalism being controversial as it is: has many arguments against it, because criminal law is “one of the most intrusive and repressive acts of state power” (Persak 1). To view the arguments against paternalism, we turn to Husak. Husak lists out six constraints on criminal laws.
“Criminal laws must be designed to prevent harm…Conduct proscribed by the criminal law must be wrongful… Persons must deserve punishment for violating the law…The state must have a substantial interest in proscribing the conduct banned by a criminal law… The law must actually promote the state interest… the law must be no more extensive than necessary to accomplish its purpose.” (Husak 43).
The first condition is easily satisfied because laws would prevent harm, though it is harm to self. The conduct is wrongful because people are not acting voluntarily as has been established before. And the wrong is also a proper concern of the public, in that if something can be done to prevent involuntary harm to oneself, it should be done. It is also the case that it should be the case that the community should have substantial interest in living healthily, and proceeding with activities that would otherwise be hindered without vaccinations. The fifth and sixth constraint means that the penalties involved must actually work to increase vaccinations. These penalties that are imposed however will be similar to the ones mentioned before, thereby limiting the amount of places that a person can go, and also fining them. This provides ample incentive to be vaccinated without substantially harming the person in question. If I have satisfied these conditions, then legal paternalism becomes justified in this instance.
Compulsory vaccination under the law can be justified by both the harm principle and paternalistic justifications, which is widely accepted under the Anglo- American legal system, whereas it is also justified under the much less accepted principle of legal paternalism. Family autonomy becomes irrelevant when speaking of the severity of the risk imposed upon one’s child, and upon the children of others. The case becomes more convoluted when speaking of adults that are accountable for their actions and thus should be allowed to make their own decisions. Adults are not allowed in any case to put others at risk because of ignorance. The way to punish this is through fines and forcible alienation, due to the extreme risk imposed on other individuals. However when the disease is non contagious, vaccinations must still be enforced. This justification then changes from harm to paternalism. However I understand that this is one of the few cases that paternalism, in its soft version is acceptable due mostly to faulty consent not to get vaccinated. Compulsory vaccinations ought to be enforced as they prevent harm and ensure that decisions that are made are rational.
Douglas Husak. “Penal Paternalism.” Paternalism: Theory and Practice. New York, N.Y.: Cambridge UP, 2013. 39-55. Print.
Flanigan, Jessica. “A Defense of Compulsory Vaccination.” HEC Forum (2013): 5-25. Web. 20 Nov. 2014.
Mill, John Stuart, and John Gray. On Liberty and Other Essays. Oxford: Oxford UP, 1991. Print.
Nagel, Thomas. “Moral Luck.” Mortal Questions. Cambridge: Cambridge UP, 1992. Print.
Persak, Nina. Criminalising Harmful Conduct the Harm Principle, Its Limits and Continental Counterparts. New York, N.Y.: Springer, 2007. Print.
Sandel, Michael J. Justice: What’s the Right Thing to Do? New York: Farrar, Straus and Giroux, 2009. Print.
Jolley D, Douglas KM (2014) The Effects of Anti-Vaccine Conspiracy Theories on Vaccination Intentions. PLoS ONE 9(2): e89177 . doi: 10. 1371/journal.pone