Vaccinations, Freedom, Opting-Out, and the travails of Pet Ownership

This month, Ronald Bailey, writing in Reason Magazine contrasted suburban Los Angeles vaccination participation with that of the third world, raising questions of prudent family health decision-making and how to balance choice and responsibility in a free society. Earlier in the year, Reason offered contrasting viewpoints on this subject here, and it is primarily to the latter piece that I wish to reply. One reason I wanted to reply here is because I would reject both an absolute right or an absolute prohibition - I think I agree with all 3 authors that the issue is not so cut and dry. In reply, I'd like to make two points.

Surprisingly, all of the contributors seem sympathetic to allowing opt-outs, and while I join them in that regard, I have to take issue with the basis. Bailey, the one that would like to strengthen the level of public encouragement, says the following:

For the sake of social peace, vaccine opt-out loopholes based on religious and philosophical objections should be maintained. States should, however, amend their vaccine exemption laws ... This could potentially expose vaccine objectors to legal liability, should their decisions lead to infections that could have been prevented.

I concur wholeheartedly with how Jeffrey Singer deals with Bailey's "free-rider" argument, but to Bailey's credit, he relies on this justification for state requirement/inducement of vaccination much less than on the "herd immunity" argument, which is not quite the same. He informs his readers that it is often not simply the case that immunized children receive a benefit from which free-riding kids may attain the benefit of less risk of exposure, because inoculation really only probabilistically decreases exposure. We're all different physiologically, and for some of us it won't take, so the only thing we can all receive is a social network in which we encounter fewer carriers.

While I recognize this is a cogent explanation for a community interest in a critical mass of inoculated citizens, it does not follow that one's contributory obligation should depend on one's rationale for opting out. Putting the factual and legal questions aside for the moment, why should it matter if my reason is "I take issue with the medical community's findings," "I think you're injecting the Devil into my veins," or "nah, it's not for me." The last one is flimsy, but any reason is likely to depart from the prevailing consensus. I understand that limiting the reasons to religious & philosophical might at least stem the demand for exemptions, but (a) we have no reason to think it is sufficient limiting principle, and (b) it seems absurd to say, in order to better secure individual freedom, we're going to be arbitrary in selecting who can exercise more of it. 

If the basis for a legal requirement is that we need a 92% participation rate, why not just sell opt-outs. If you want to indulge your belief - nutty or informed, we won't pronounce judgment - then give up enough other wants to pay for it. If there is a social cost, you've offset it. I think this compares to another public requirement currently in abeyance: the military draft. Why should it be that someone with a conscientious objection they can document to the courts gets a pass, but someone who just plain doesn't want to give up his/her life on the battlefield should not be able to opt-out? Before you say, "a draft wouldn't work if you could opt-out", history would seem to disagree. During the civil war, a draft was for a person, who for the draftee himself, and the recipient was free to pay for a substitute. I oppose a draft, but I think if there are any circumstances in which it should be allowed, this opt-out proviso should be retained.

Of course, there was the objection - as there can be in so many policy areas - that this favors the rich, but it also provides a legally equal chance to all for that opt out, and leaves the individual free to find the way to afford it. (Who knows, in the current age, maybe you could finance it.) When we get back to vaccinations, though, we see that really isn't a problem. In the more recent article, remember that Bailey is more concerned with opt-out trends in "affluent" quarters of society. An implication is that the benefit principle and ability-to-pay principle of public finance may be in alignment.

Furthermore, I think Sandy Reider does a superb job of pointing out the idea of herd immunity is an empirical door that swings both ways: since vaccination can also weaken immunity, you could make a case to forbid people from getting certain inoculations on the same theoretical argument. Ultimately, it is a judgment call, and the real question boils down to who gets to make it, but legally part of answering this question involves considering who can be responsible. I join Reider and Singer in finding Bailey's Holmes-inspired analogy of a non-vaccinated person to a person claiming the right to walk down the street swinging his fists wholly inadequate and over-simplistic. Singer makes a teleological distinction, and Reider reminds us that the empirical ambiguity implies that "those who choose to opt in can also, as Bailey puts it, 'swing their microbes.'

My second claim is that a better analogy would be to community requirements for pet owners. We recognize the following:

• People enjoy owning pets, and gain utility from their companionship, but
• pets can cause others harm, through behavior or as a disease carrier.
• Pet-owners have imperfect control over their pets - pets are not swinging fists.

So, I ask, are microbes pets? Think about the practical implications of treating them this way for legal purposes. We make legal prescriptions in urban areas that don't apply to rural areas (i.e. chickens in the countryside = fine, chickens in Highland Park = not fine), because urban density creates different demands. Urbanites remain free to have some animals under restrictions that work for that community. These standards are imposed with the knowledge that you can escape to the countryside or less restrictive locales, and they sometimes vary by fee. For example, in my city, registering a cat that has not been spayed or neutered is more expensive than the alternative. Additionally, if your pet does something to another human, we don't just hit you with civil (or criminal) liability straight away, we look to the circumstances. Were you negligent? Did you meet ordinances and/or meet norms and customs of ownership? Was it foreseeable?

Enforcement and ascertainment of culpability presents major challenges, but think looking at microbes as pets might be a fruitful legal analogy, and I think it's certainly more useful than some maniac swinging his/her fists. It's also less biased - instead of portraying opt-out parents as fringe loons, we simply acknowledge they are taking on a responsibility. Open is the question of whether this is always like owning an untrained pit bull, or whether it can be like a leashed, trained border collie.