On Personal Liberty And Vaccination

Mandatory vaccination laws raise personal liberty issues that ought to be taken seriously, but in the end, public health concerns weigh heavily in favor of laws mandating vaccination.

During a Senate hearing earlier this week. Kentucky Senator Rand Paul raised a personal liberty objection to the idea of mandatory vaccination:

Sen. Rand Paul said Tuesday that he does not think the government should require people to receive vaccinations, amid a heated debate over the growing influence of anti-vaccine groups and as Washington state experiences its worst measles outbreak in more than two decades.

Paul (R-Ky.) made similar comments ahead of his unsuccessful White House bid in 2016. On Tuesday, he was the sole lawmaker to strike a defiant tone on the topic at a hearing of the Senate Health, Education, Labor and Pensions Committee.

Paul said that he and his children have been vaccinated, and that in general, he believes “the benefits of most vaccines vastly outweigh the risks.” But he added that he supports “persuasion” rather than government-mandated vaccines.

“It is wrong to say that there are no risks to vaccines. Even the government admits that children are sometimes injured by vaccines . . . I still don’t favor giving up on liberty for a false sense of security,” Paul said.

The rise of the anti-vaccine movement, facilitated in part by social media, has prompted an alarming resurgence of measles in states across the country. The deadly disease was declared eliminated from the United States in 2000, according to the Centers for Disease Control and Prevention. But public health officials are now scrambling to keep the highly contagious virus from once again spreading out of control, particularly among under-vaccinated populations in states such as Washington, Oregon and Idaho.

At Tuesday’s hearing, Paul acknowledged that those who are not vaccinated could spread diseases to immunocompromised people. But he claimed that “there doesn’t seem to be enough evidence of this happening to be reported as a statistic.”

The recent measles outbreak in the Pacific Northwest has sickened at least 75 people, most of them unvaccinated children under 10. Globally, cases of measles are surging to alarmingly high levels, UNICEF recently warned.

But Paul appeared to play down the seriousness of the situation, asking, “If the fear of this is valid, are we to find that next we’ll be mandating flu vaccines?”

In 2015, as he was mulling a presidential bid, Paul said in interviews on CNBC and with conservative radio host Laura Ingraham that he believed the choice to vaccinate should be up to parents rather than mandated by the government.

In the CNBC interview, he claimed to have “heard of many tragic cases of walking, talking normal children who wound up with profound mental disorders after vaccines.”

“I’m not arguing vaccines are a bad idea; I think they’re a good thing,” Paul, who is an ophthalmologist, said at the time. “But I think the parent should have some input. The state doesn’t own your children. Parents own the children, and it is an issue of freedom.”

Saad Omar, an epidemiologist who is among the people who testified at the hearing, pushes back on Paul’s comments:

I testified on Tuesday before a Senate committee hearing on recent outbreaks of measles and other diseases that immunization has mostly wiped out. While most lawmakers on the panel agreed on the importance of vaccination, Paul raised significant doubts. A physician, Paul said that he and his children are vaccinated and that he believes the benefits of vaccines greatly outweigh the risks. But he also registered his opposition to mandatory vaccination, making factually dubious claims in the process.

Paul declared that the government never mandated the smallpox vaccine — conveniently ignoring, among other things, Jacobson v. Massachusetts, the 1905 case in which a man unsuccessfully challenged a vaccine mandate. Jacobson is often considered a seminal decision in public health case law.

Paul said “persuasion” would be a better way to ensure vaccination than would mandates. And he paraphrased Ben Franklin: “I still don’t favor giving up on liberty for a false sense of security” — as if protection afforded by vaccines is merely a matter of perception. He didn’t ask any questions and yielded his time after his statement. Maybe the senator’s only goal was the flood of news coverage his remarks later received.

My perspective on Paul’s comments is shaped both by my research into public health, epidemiology and immunization, and by my experience as a naturalized U.S. citizen who immigrated here after spending most of my childhood living under a dictatorship. I don’t take questions of personal liberty lightly. But Paul is wrong.

Overall, U.S. vaccine mandates strike the right balance between personal freedom and public protection. These mandates work by changing the “balance of convenience” in favor of vaccination by putting bureaucratic hurdles in the way of opting out of them.

There is substantial state-by-state variability in mandates. All states allow exemptions from these mandates for medical reasons, and all but three allow exemptions for “personal belief” or religious reasons. Starting in 2006, I and others have shown that making it more difficult to get an exemption from mandates is not only associated with lower vaccine-refusal rates but also with lower vaccine-preventable disease rates.

But what does “difficult” mean in the context of vaccine exemptions? Essentially, it means requiring administrative steps to get exemptions. For example, some states make parents provide a letter stating why vaccination is against their personal or religious beliefs. In other states, parents seeking nonmedical exemptions are required to go through physician counseling. Another option is requiring parents to watch an online educational video.

All of this is good public policy because vaccine-compliant parents not only protect their own children but also contribute to the protection of other children — including children of vaccine refusers.

Vaccine-accepting parents spend considerable effort to keep their children up-to-date on vaccines: In their children’s first five years, parents have to take kids for about seven vaccination visits. Since few vaccines are 100 percent effective, a proportion of these vaccinated children remain unprotected. This would be okay if everyone else was vaccinated, as well. But refusing parents, in the name of their own freedom, put not only their own children but other children at risk — undermining the compliant parents’ own freedom to choose to protect their children.

So is it really an unreasonable infringement on liberty to expect those who end up increasing everyone’s disease risk to make at least a fraction of the effort that vaccine-compliant parents make? Some requirements, such as physician counseling, have the added benefit of making vaccine decisions truly informed. Even in the three states that do not allow for nonmedical exemptions, the maximum penalty is not allowing unvaccinated children to attend school, often during outbreaks.

I believe Paul when he says he supports vaccination, but I suggest he reconsider his position on mandates. The Franklin quote he nodded to on Tuesday, ironically, means the opposite of what Paul was arguing. When Franklin said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety,” he was opposing the Penn family’s attempt to carve out an exception for themselves from the Pennsylvania General Assembly’s attempt to tax their lands for the collective good of frontier defense. The liberty Franklin was defending was the liberty the rest of us deserve now, too — liberty to choose to protect ourselves.

While I am generally sympathetic to the personal liberty arguments that Paul raises, I think that there is an issue regarding the risks that unvaccinated people, specifically children, pose not only to themselves to the public as a whole. As I’ve noted in several posts here recently, we’ve seen an increase in measles cases in the United States and Europe that can be linked to the ill-informed choices that parents who have bought into the propaganda of the anti-vaccination movement have made. Even if one concedes that parents have the right to make these choices for their children, that right would seem to have limit once it puts members of the general public at risk. This is especially true if they insist on enrolling unvaccinated children in public school or exposing them to other children, especially children too young to be fully immunized, people with compromised immune systems, and other members of the public who may not be vulnerable to infection by someone who could have been immunized but instead becomes infected by someone who could have been immunized but wasn’t. Perhaps if someone were not going to interact with members of the general public this argument would make sense, but if you’re going to be sending your kid out into public, and especially to public school, then requiring that they be immunized against easily communicable diseases is a reasonable one and that public health interests do end up outweighing personal liberty at some points.

Looking at this from a legal point of view, Senator Paul is clearly on the losing side of the argument. Generally speaking, the Courts have often recognized that state and local authorities do have significant authority to restrict personal liberty in the name of public health. More than a century ago, for example, the Supreme Court ruled that a Massachusetts town was within its authority to require a man to receive a smallpox vaccination. In no small part, the Court’s ruling was based upon what it saw as a de minimis violation of personal liberty compared to the extreme risk to public health that would be posed by an unvaccinated person being exposed to Smallpox and spreading the disease to other unvaccinated members of the community, such as the young, sick, and elderly. This is the Jacobson v. Massachusetts case that Omar discusses in his Op-Ed. More recently, a Federal District Court Judge in New York upheld a policy of the New York City School Board that provided that children who were not vaccinated could be barred from school during the time that there was an outbreak of a disease they were not vaccinated against.

After reading this, some will no doubt accuse me of violating my libertarian principles. The truth is that this is generally speaking a position I’ve held for as long as I can remember. Just as your right to swing your first end where my body begins, your right as a parent to decide not to vaccinate your child ends where the risk that someone else’s child, or someone who may be immuno-compromised begins. This isn’t a restriction of liberty, it’s a basic principle of public health and, as a physician, Senator Paul ought to recognize that. Additionally, I would add that there are limits to the extent to which parents ought to be able to make medical decisions for the children. When those choices are unreasonable, based on pseudo-science, and put the child and others at risk then there ought to be a mechanism for someone to step up and speak for the rights of the child. After all, the whole idea of “parental rights” is centered around the idea that parents are best situated to make decisions for their children and that because they are parents, they can generally be trusted to make decisions that are in the best interests of children. Sometimes, though, that isn’t the case, and choosing not to vaccinate a child based on discredited medical studies or pseudoscience spread by know-nothing celebrities, or refusing necessary life-saving care based on religious superstitions. strikes me as one of those times when the rights of the child and “parental rights” are in conflict. This is one of them.

Senator Paul is right to raise the personal liberty issues he did in the hearing last week, but in doing so he clearly failed to take into account the fact that no rights are absolute.

FILED UNDER: Health, Law and the Courts, Science & Technology, Supreme Court, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Dave Schuler says:

    All 50 states require MMR and DTaP vaccination before admittance to public school kindergarten. In some states that extends to private school kindergarten and day care. Either that’s not being enforced or the requirement needs to be extended.

    I agree that there is a liberty interest at stake but it’s not the only interest. There’s a public health interest as well.

  2. Kathy says:

    All the way back in late 1989, the Mexico City government instituted a program called “Hoy no Circula” (loosely, Day Without a Car), where private vehicles were barred from circulation one day per week between Monday and Friday based on the last number in their plates.

    This was done to reduce pollution. Additional steps were taken later, like emissions controls on all vehicles. The program itself changed over time. Newer vehicles, which are more fuel efficient and emit fewer pollutants, are exempt. So are hybrid and electric vehicles.

    I was not alone at the time in arguing that the program ought to be voluntary, or that there were ways around it (like keeping an older car longer as a wild card for the days when your new car can’t be used), or that it wouldn’t work at all.

    This program, which is still in force, and other measures as noted above, have succeeded in reducing pollution levels. We still have polluted air, same as every city in the world, but it’s rare these days to awake to a brown skyline (seriously), and the measured levels of pollutants have gone down. Some of it is due to newer vehicles, as also was noted above, but strict enforcement of emissions controls and keeping older vehicles off the road once a week does help.

    But I also found out, late in the 90s, that the program started out as voluntary in 1988. Without incentives or enforcement, as far as I know, which can be criticized, and with a participation rate so low as to render it meaningless.

    Now, what incentive could you use? Waive the annual car-use excise fee? It’s far less money than taking a cab to work and back once per week, or keeping an older car around. Likewise subsidies for car insurance.

    When something requires near 100% participation to be effective, you can’t count on a voluntary program. If the objective is important enough, like preventing communicable diseases or cleaning up the air, one just has to learn how to cope.

  3. steve says:

    I think the “correct” libertarian response to this is that the parents who dont get their kids vaccinated get prosecuted for assault/murder if someone else gets sick as a result of not being vaccinated. The law should make this easy to accomplish, but we know that won’t happen and they will weasel out. Besides, I suspect that most parents would rather have a live child than revenge.

    Rand Paul is a total slime on this issue. I am ashamed that the is a fellow physician. Hope there is a special place in hell for people like him who would place their politics above the lives of children.

    Steve

  4. I didn’t address it in the post, although I had been meaning to, but there is a connection between this argument and the difficulties that public health authorities are having in the Democratic Republic of Congo in combatting the latest Ebola outbreak. One of the biggest problems is that the government there is responding to the resistance to vaccination and other public health efforts with some degree of force.

    One public health expert makes the point that force isn’t always the best way to deal with these issues and that more effort ought to be spent in educating the public on the benefits and need for vaccination and listening to public health authorities. Education, they point out, works better than force in most of these situations.

  5. @steve:

    I tend to agree, indeed such a position is generally consistent with how libertarian theory deals with other so-called “externalities” that arise from human behavior.

  6. Mu says:

    The measles outbreak isn’t my greatest worry, but the story of the kid that nearly dies of tetanus and needed 2 months in the hospital to learn to walk again, that’s where “choice” moves into “criminal behavior” territory. Exposure to second hand smoke is a ground for CPS to act, but not refusal of basic protection against killer diseases?

  7. grumpy realist says:

    Anyone see the case where a young boy ended up with tetanus because his parents didn’t vaccinate him?

    All the health care he had to sop up because of this has cost over $800K so far. A tetanus vaccine shot costs $10.

    I suspect that it’s going to be health insurance companies that are going to ramp up lobbying for mandatory vaccinations. You want to purchase health insurance? Get vaccinated and make sure all your kids are vaccinated. And if I were a state politician looking for an issue to run on, I’d be banging the drum about how not getting vaccinations is anti-social and selfish if you end up dumping the resultant health care costs on your neighbours and fellow citizens. There’s only so many episodes of $800k payments a place can afford before your taxes go up.

  8. Slugger says:

    I have a circular scar on my left upper arm, and my parents had similar scars. My daughter doesn’t. The scars were the result of smallpox vaccinations that the government here and around the world pursued very vigorously. This universal policy resulted in elimination of the virus, and now no one needs that vaccine. If you want to stop vaccinations, get everyone vaccinated now! This actually works.

  9. al Ameda says:

    @grumpy realist:

    Anyone see the case where a young boy ended up with tetanus because his parents didn’t vaccinate him?

    Yes I did – Oregon.

    I live in the coastal region about 60 miles north of San Francisco and although the area is generally middle class to affluent – and at the least, populated by well-educated people who ought to know better – there are a fair number of people who are anti-vaxxers.

    This has resulted in the surprising reappearance of afflictions like Whooping Cough, generally thought to be ‘gone’ from our communities. Anti-vaxxers shrug off admonitions about the dangers of unvaccinated people and Measles. This is a serious Public Health issue, and many officials should be and are worried.

  10. Stormy Dragon says:

    Counter offer: vaccines are not mandatory, but shooting non-vaccinated people is legal on self-defense grounds.

  11. Kathy says:

    @Stormy Dragon:

    Ah, but then we’d need a simple, fool-proof way of telling the unvaccinated apart.

    How about a big, red “A” tattooed on their forehead?

    But the problem is that unvaccinated children are innocent victims of their parents’ idiocy or misguided intentions. they already face a much greater risk of catching lots of diseases most of us don’t worry about. It would be unfair to shoot them for what their parents did (or failed to do).

    On the other hand, people 18 and older can choose to get the vaccines their anti-vaxxer parents made them miss. So maybe then they can face the choice of a few shots or a red letter.

  12. Teve says:

    Throw Fortnite a few Ameros to create a powerful item you can only get if you’re vaccinated.

    You’re welcome.

  13. Gustopher says:

    I think there are civil rights issues with public health consequences, and public health issues with civil rights consequences, and I don’t know where the dividing line is.

    I’m wary of the government requiring medical procedures — whether it is being vaccinated, or being kept alive against your will, or being forced to carry a baby to term, or being forced to donate your kidney.

    On the other hand, yeah, the guy with ebola needs to be quarantined.

    I think the antivaxxers are getting so successful that they are becoming more of a public health problem than a civil rights issue. When there were a tiny number of idiots, they were mostly harmless.

    I think I am getting ok with the idea of vaccination through blow dart and repurposed tranquilizer guns. Or fencing off Spare Dakota (North, South, I don’t care) and dumping them there. There might be food in Spare Dakota. They’ll be fine.

    Hmm. Do we trust the Canadians to keep the unvaccinated from crossing the border? That might require us to use South Dakota.

  14. Lynn says:

    “Some requirements, such as physician counseling, have the added benefit of making vaccine decisions truly informed.”

    Unfortunately, some MDs have apparently been selling exemptions in those states where there is no oversight.

    https://sciencebasedmedicine.org/medical-exemptions-to-vaccine-mandates-for-sale-after-sb277-get-em-before-theyre-gone/

  15. MarkedMan says:

    You know the saddest thing about that 6 year old with tetanus? After watching their tiny child lay in a hospital bed for 47 days, much of it spasming and being fed and breathing through a tube, the parents are still anti-vaxers

  16. An Interested Party says:

    I’m wary of the government requiring medical procedures — whether it is being vaccinated, or being kept alive against your will, or being forced to carry a baby to term, or being forced to donate your kidney.

    Being kept alive against your will, being forced to carry a baby to term, and being forced to donate your kidney all do not lead to a scenario where you could give someone else an easily preventable disease/infection if only you had been vaccinated…

    @MarkedMan: Stormy Dragon’s solution seems most appropriate for those parents…

  17. gVOR08 says:

    LGM found a 2014 tweet from Trump,

    Healthy young child goes to doctor, gets pumped with massive shot of many vaccines, doesn’t feel good and changes – AUTISM. Many such cases!

    Of course this is a public health issue. Of course vaccinations should be required, compelled if necessary. What is wrong with this country that this is even an issue? (Decades of Republican, ‘The government is the problem.’ GOPus delendus est.)

  18. Just nutha ignint cracker says:

    @Kathy: In Washington State, IIRC, it’s 16 or 15 now. We have people who wanted teenagers to be able to get birth control w/o letters from their parents to thank.

  19. OzarkHillbilly says:

    “I’m not arguing vaccines are a bad idea; I think they’re a good thing,” Paul, who is an ophthalmologist, said at the time. “But I think the parent should have some input. The state doesn’t own your children. Parents own the children, and it is an issue of freedom.”

    I know I am really late to this conversation (out of pocket this past wkend), and I can’t believe I am the only one who noticed/takes exception to this, but really? Since when does a parent own their children? How can the “owning” of another human being be “Libertarian”? How odious does a person have to be to even suggest such a thing?

    I have raised 2 sons. I was responsible for their health, their education, and their welfare, but I never owned them.

    Parents own the children, and it is an issue of freedom.

    Freedom? I don’t think that word means what you think it means Mr. Paul.

  20. Kit says:

    This isn’t your grandfather’s obsession with fluoridation, but it’s the same damn regressive gene at work, now aided by the power of the internet.

  21. grumpy realist says:

    Fine. Keep your kids unvaccinated as much as you want. But make sure you have the money up front to pay for their hospitalisation and accept that you are on the hook for criminal negligence if anyone gets sick or dies from your little walking germ factory. Oh, and in the case of a disease outbreak, we can quarantine you and your children until the disease outbreak is over.

  22. Just nutha ignint cracker says:

    @OzarkHillbilly: There are some obligations that come with living in civilized and governed society. I realize that this rankles libertarians of all stripes because they seem to hold that individual liberty is the last and only important value, but that belief does not overrule the social contract.

    Good catch on the “owning children” thing. I missed it, but that’s because Rand Paul was saying it, so I stopped paying attention almost immediately. It’s good that others follow through more aggressively. But I will also note that children (and their mothers!) as chattel property is a concept that extended well into the 20th Century in Western societies and is still a common enthymeme in Evangelical Christianity. Apparently in other cohorts in American life, too.

  23. Just nutha ignint cracker says:

    @Kit: I stopped for gas in Vancouver, WA–site of the recent barring from school of 745 unvaccinated children. Next to my car was an off-road type pick up truck with the usual assortment of MAGA/NRA bumper stickers on it. One that I noticed read

    Flouride: There’s poison in the water

    Give the age of the driver as about 20 or 30 years my junior, the obsession is not just for grandfathers any more.
    Fun link

  24. Kit says:

    @Just nutha ignint cracker: What a depressing link 🙁

    Why is it that this stuff just cannot be killed?

  25. Just nutha ignint cracker says:

    @Kit: Alas, it’s because freedom embraces with it the right to be stupid and believe stupid things. I’m older now and no longer support unencumbered freedom of speech and hold a more expansive definition of what constitutes “shouting ‘fire’ in a crowded theater,” but I still don’t recommend entrusting such decisions to people like me.

    ETA: Thanks to the Internet Freedom Blah Blah Act (or whatever it was called) of the past year, that was the first link that came up searching the term “flouride.” I assume it was because that’s the link that has something to sell–the most important factor in the free Internet frontier.

  26. Kit says:

    @Just nutha ignint cracker:

    Alas, it’s because freedom embraces with it the right to be stupid and believe stupid things.

    Not to be contrary, but I’ve honestly come to the conclusion that the paths of freedom and stupidity never cross. Knowledge sets us free.

  27. DrDaveT says:

    After reading this, some will no doubt accuse me of violating my libertarian principles.

    Yup. 🙂

    The truth is that this is generally speaking a position I’ve held for as long as I can remember.

    Deep down, you’re apparently not really a libertarian.

    Just as your right to swing your first end where my body begins, your right as a parent to decide not to vaccinate your child ends where the risk that someone else’s child, or someone who may be immuno-compromised begins.

    Ah, but you have now started down that slippery slope. If a hypothetical future harm to someone else is enough for the state to be justified in curtailing your freedom, the rationale for much broader restrictions follows immediately.

    This isn’t a restriction of liberty

    Hogwash. Of course it is. It’s a flagrant restriction of liberty. The fact that you agree with it anyway is what proves you’re not really a libertarian.

    Once you agree that people shouldn’t be allowed to refrain from actions that only probabilistically (not directly) contribute to public health, you have established (at a bare minimum) that aggregate public health is more important than concrete personal liberty. At that point, all kinds of coercive laws become not merely good ideas, but necessary.

    As I have pointed out in the past, once you agree that some things are more important than personal liberty, you need a political philosophy that can identify what those things are. And once you have that political philosophy, libertarianism becomes irrelevant — the other theory answers all of the important questions, and where it disagrees with libertarianism it is libertarianism that must yield.

  28. An Interested Party says:

    @DrDaveT: What!? You mean that libertarianism is something that can’t really work in the real world!? Who knew…

  29. DrDaveT says:

    @An Interested Party:

    What!? You mean that libertarianism is something that can’t really work in the real world!?

    No, it’s worse than that. Libertarianism isn’t a thing.

    People who claim to be libertarians really mean that they place more weight on personal liberty than other people do — but when pressed for why they do that, or asked to apply those principles in specific cases, they revert to arguments that appeal to other, more fundamental principles. (Or they just assert a preference with no argument, turning their libertarianism into an aesthetic preference, as opposed to a philosophy.)

    The slippery slope adjacent to libertarianism is the steepest and iciest in all of political philosophy. One step away from Somalia takes you all the way to the bottom of the chute.