Category Archives: Transhuman News

I do not recall, when I was growing up or as a young adult, ever thinking that the issue of vaccinations was a political issue. Now, thanks to the infusion of libertarian sensibilities into the body politic, and a culture in which choice is always the ace of trumps, vaccinations are a political football. It is to weep.

First, there was Gov. Chris Christie on a trip to the United Kingdom. He was trying to demonstrate his foreign policy bona fides I suppose, and certainly the issue of vaccines was not on the top of his list of things to be prepared to discuss while taking questions in the streets of London. But, the sudden outburst of measles stateside, which unlike Ebola is highly contagious, led to the question and, in his answer, Christie gave an unnecessary nod to parental choice. Somewhere, deep in the recesses of his intellect, there was a default switch that clicked on: When discussing family issues, do not forget to mention parental choice. And so he did. And so he looked very foolish.

Gov. Christie is not a libertarian in any meaningful sense of the word. But, Sen. Rand Paul swims in those waters, indeed we could say he was baptized politically in those waters. As if on cue, and ignoring the fact that for vaccines to achieve their medical benefit, we all have to take them, Sen. Paul turned to his binary view of the world in which the state is Leviathan, eager to devour first your rights and then, apparently, your children. The state doesnt own your children, he said eagerly. Parents own the children. And it is an issue of freedom and public health. The choice of the verb own to describe the relationship between children and parents is a little frightening. And, he does not square freedom and public health, which may make separate conclusions, on this issue, just leaves them out there like exclamation marks in search of a sentence.

The episode shows everything that is deplorable about libertarianism. First, and I invite my conservative Catholic friends to take special note of this, in Sen. Pauls binary vision of the state versus individual freedom there is as little room for civil society, and the Church, as there is in your worst collectivist nightmare. If it is all one or the other, there is no role for mediating institutions or, at least, they will quickly be relegated to the sidelines of political and intellectual discourse. Before the god freedom, all libertarians bow and grovel.

Second, as was pointed out by E.J. Dionne on one of the talk shows last night, the episode highlights another problem with libertarianism. While it can provide a certain cast of mind with a neat, tidy intellectual framework for explaining the world, once libertarianism gets applied to reality, it tends not to bear up very well. The real world exhibits nuance and conflicting values that must be weighed, it has exceptions to be sure, but more than exceptions it has an uncanny knack for requiring similar ideals to be applied differently in different situations. As an ideological construct, I am not much of a fan of libertarianism, but even if you are, you need to recognize, as Sen. Paul never really does, that in the application of those ideas, libertarianism tends to become either too rigid or too brittle to work.

Check out the eBook collection of Pat Marrin's "Francis" cartoons. Learn more.

When Pope Francis says that reality is superior to ideas, he is telling us Catholics something very important about the very heart of our faith. Our incarnational faith certainly recognizes the importance and value of reason, but it tethers reason to both faith on the one hand and real-lived experience on the other. Pope Benedict XVI emphasized this as well, stating in the opening sentences of his first encyclical, Deus Caritas Est: We have come to believe in God's love: in these words the Christian can express the fundamental decision of his life. Being Christian is not the result of an ethical choice or a lofty idea, but the encounter with an event, a person, which gives life a new horizon and a decisive direction. Saint John's Gospel describes that event in these words: God so loved the world that he gave his only Son, that whoever believes in him should ... have eternal life (3:16). The historic vocation of the Catholic Church in civil society is to provide a bulwark against any ideology that denies the human persons transcendence. And, in our day, the principle method of denying such transcendence is choice and freedom understood as ideological constructs and political tools.

Let us be clear: This cuts against both the left and the right. It always makes me laugh when I watch MSNBC and they are discussing abortion and they warn against the dangers of having the government in the examining room and then you flip to Fox, and they are discussing the Affordable Care Act and they, too, frighten everyone with the prospect of the government in the examining room. Neither side seems to even recognize the irony because their fear of government intrusion is not principled in the least.

Libertarians, at least, get high marks for consistency. But, in a culture in which choice is the preeminent value, there are many, many things that culture cannot accomplish because they require everyone to buy in, if I may be permitted a commercial metaphor. Vaccines are ones such issue. They dont work if only half the population gets them. To work, the compliance rate has to be above 97%. Of course, in Europe, where medical care actually is socialized, very few countries require vaccinations but they have an almost 100% compliance rate nonetheless. Sen. Paul can put that sociological datum into his libertarian pipe and smoke it.

Which leads to one other aspect of libertarianism today: I do not know what they have been smoking, but they have a penchant for embracing some really bizarre ideas. In an interview yesterday, Sen. Paul did his best imitation of former Cong. Michelle Bachmann. She once said that she knew a woman whose child was vaccinated and the vaccine caused mental retardation. Yesterday, Sen. Paul noted there were many tragic cases of walking, talking, normal children who wound up with profound mental disorders after vaccines. Really? This is the medical equivalent of the Gold Standard, which many libertarians also embrace, or the idea that mammoth new trees can be genetically created to deal with climate change. Libertarianism seems almost uniquely to be the part of American politics where conspiracy theories and other idiocies find fertile soil.

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A lawyer friend of mine passed along this idea,

New cause of action: Tortious Non-Vaccination.

This is when a person who could be vaccinated but chooses not to (or his parents choose not to) becomes infected and then infects someone else who could not be vaccinated such as a someone with leukemia or some other immune deficiency or sensitivity to vaccinations. What victims of Tortious Non-Vaccination should do is file a complaint seeking to certify a defendant class action and bring a claim against all Tortious Non-Vaccinators [who had gotten the disease].

I think the kind of burden of proof shifting along the lines of Summers v. Tice would be appropriate. Thus, here, a member of the defendant class would have the opportunity to, say, prove that he could not have infected anyone.

[A]nd since its a negligence claim, you target the homeowners insurance policy. Anti-vaxers insurance rates will rise to internalize the cost of non-vaccination.

Summers v. Tice is a famous tort case in which plaintiff was allowed to recover from his two fellow hunters, when he was injured by one of them but it wasnt clear which one. Usually, a plaintiff has to show that theres a greater than 50% chance that the particular defendant he is suing caused his injury; but in this instance the court relaxed the requirement. (I include an edited version of Summers below.)

Im skeptical about my friends theory. Summers, I think, is a limited exception to the general tort law rule that the plaintiff must show that his injury was likely caused by the defendant. And I doubt that Summers would be extended to a situation such as communicable disease, given how unrelated and variegated the potential tortfeasors are, how many there are, and how unlikely each one is to have injured this particular plaintiff.

I agree that if you know that D has infected P, and D failed to take reasonable precautions to prevent this (e.g., getting vaccinated), this would be tortious under normal negligence principles. (This is often litigated in sexually transmitted disease cases, but historically that came out of other communicable disease cases, where the source of the infection was known; the principle dates back to the late 1800s and early 1900s.) But if a plaintiff is suing everyone who hasnt been vaccinated and has contracted the disease some of whom had more serious forms of the disease and some of whom had less serious forms, some of whom spent a lot of time during their illness around other people and some of whom spent less, and nearly of all whom are likely not to have caused plaintiffs illness, directly or indirectly I dont think the Summers theory would or should apply to defendants.

Indeed, this pretty closely tracks the way the law deals with pollution. In some situations, particular polluters can indeed be sued under general tort law principles for harm to particular plaintiffs. But in large part because of the difficulty proving causation, the tort route is often unavailable. The law has (generally) dealt with this not by relaxing the causation requirement, but by setting up a regulatory scheme requiring polluters to take various steps to diminish pollution.

And I think pollution in general is a good metaphor for non-vaccination. Factories sometimes emit chemical pollutants. Factory owners have a legal duty to take various reasonable steps to reduce the risk and magnitude of such emissions.

Read more from the original source:
Volokh Conspiracy: Not vaccinating = failure to reasonably avoid polluting