A Defense of Compulsory Vaccination

Author states: "I develop an analogy to random gunfire to illustrate this point. Vaccine refusal, I argue, is morally similar to firing a weapon into the air and endangering innocent bystanders."

Paper 3. A Defense of Compulsory Vaccination by Jessica Flanigan

COMMENTS

Harvey Berman  May 24, 2020 at 8:01 AM

Post by Harvey Berman: Flanigan’s entreaty is less a paper on health care policy than it is a pasty exercise in creative writing, the aim of which is to convince us that the threat of infection in an epidemic is analogous to the threat of being hit by a bullet shot into the air by …. “celebratory gunfire,” an uncommon practice in civilized society, but typical in those regions of the middle east where other forms of entertainment are apparently limited. Yes, at my Bar Mitzvah, after the lighting of the candles, the rabbi, and my father and his brothers broke out their Colt six-guns and shot up the catering hall with mitzvah-invoking gunfire and klezmer music and the women whooped it up with the gun-totin’ men.

It is hard to find any aspect of “celebratory gunfire,” in which a single bullet shot into the air compares with reproduction of infectious disease. A single individual with measles can infect up to 18 separate individuals, and that is on a bad day. A single bullet? You do the math.

But to take the high road, Flanigan does provoke an important question: What is the power of government to curtail civil liberties during a time of pandemic? His solution—that everyone gets vaccinated if there is even a remote threat of harm—lacks resolution in a geographically large and culturally diverse nation. Nor does he acknowledge the landmark Supreme Court decision — Jacobsen v Massachusetts (1905) — permitting states (not the federal government) to require mandatory vaccination as a means for promoting public health, thus preventing mass infection as opposed to some circumspect entitlement or right to be “free from harm.” The constitution is clear: its purpose is to protect liberty, not to prevent harm to a single individual from an unpredictable dubious action.

Today, there is a problem with Jacobsen v Massachusetts: 100-years-ago there was no social media, there was no anti-vaccination movement led by fire-hose amounts of mis- or dis-information, and there was no need to be reminded of the perils of infectious disease. Infectious disease was a daily concern in the early 20th century. Today, smallpox is nearly forgotten; tuberculosis was forgotten but is making its return, and polio is unknown to today’s medical students. As such, anti-vaxxers are virtually free to disseminate misinformation, which is welcome in some — mostly affluent — communities.

The question for me is not whether or not to mandate vaccination, because there are sensible cases where it is not medically appropriate, but to ask how far government can go in mandating certain medical procedures. We already implement laws mandating helmet and seatbelt use. We mandate fluoridation of water. Would Flanigan go so far as to mandate inclusion of other “beneficial” drugs in water? During the Vietnam war, the CCNY historian Kenneth Clark thought that president Johnson should be given Valium so that he would be less warlike. It is to be remembered that schizophrenics, according to Lawrence Gostin, cannot be subjected to compulsory treatment with anti-psychotic medication, even though physicians may believe it to be in the patient’s best interest.

So, how much infringement on first-amendment rights should be tolerated during a pandemic? As much as during wartime?

REPLIES

Stephen Kershnar May 24, 2020 at 9:48 AM
Harvey and Phil:
(A) If you were a legislator or, perhaps, a powerful governor, would you require people to take vaccines against smallpox, tuberculosis, or polio if they were to make a comeback?

(B) Do you think there should be a continuum of penalties for a refusal to take the above vaccines, for example, employment restriction, prohibition on attending public schools, or fines?

Let's do it to them before they do it to us,
Steve K

Jack Freer May 24, 2020 at 1:33 PM
Harvey, celebratory gunfire at a Bar Mitzvah is a cultural variable. I’m sure Kinky Friedman (https://forward.com/culture/books/321037/kinky-friedman-rides-again/) wouldn’t find it so strange.

Harvey Berman May 24, 2020 at 3:04 PM
No, he wouldn't. But then, and "n" of 1 is not a cultural variable. But I do like some of Kinkela's song titles, which I am not sure I should repeat here (not knowing which parts of the U. S. will be reading this).

Phil Reed May 27, 2020 at 11:35 AM
Steve,
I would not be inclined to require vaccines backed up with stiff penalties but only on practical grounds that it would backfire and be ineffective.
Phil


Stephen Kershnar May 28, 2020 at 9:46 AM
COERCION TO SUPPORT SMALLPOX AND POLIO VACCINATION
Phil:
Because you reject Flanigan's argument (because it is an omission, does not originate the danger, and is the result of multiple causes), I wonder why you would use coercion to require people to require vaccines for smallpox and polio?
Is it because of a consequentialist override of deontological duties or something else?
Best,
Steve K.

Stephen Kershnar May 24, 2020 at 9:30 AM

JESSICA FLANIGAN’S THEORY OF RIGHTS – PART 1

No Right
(P1) There is no right against harm.
(P2) If (1), then there is no right against harm or risk of harm.

On the counterfactual comparative theory of harm, refusals to benefit and right-respecting harm are still harms, but there is no right against them.

Best,
Steve K

Replies

Bob Kelly May 26, 2020 at 4:10 PM

Steve, I don't see why failures to benefit have to be 'harms' in the way you seem to be using the term there. By failing to give you my tennis racquet, it is plausible that I don't cause you to go into a worse state, but instead omit from putting you into a better state. I don't *proactively* harm you (as we might call it). Instead, I *passively* harm you. Call it whatever we want, the point is that these seem very different. If so, not having a right against passive harms like refusals to benefit may not entail anything about our rights against proactive harms like infecting someone with a contagious illness.

But my main question is whether you can say more about why (P1) is true? (P2) is not illuminating since it is tautological, and the support underneath it cannot cover all conceptions of harm. So could you say more about why the more general version of (P1) is true?


Stephen Kershnar May 28, 2020 at 9:52 AM

Bob:

As always, excellent point.

The counterfactual comparative account of harm (CCA) holds that an event, E, harms a person, S, if S does worse when E occurs than when it does not occur.

You're refraining from giving me your tennis racket makes my life go worse than if that event does not occur.

Hence, you're refraining from giving me your tennis racket harms me. It does not infringe my right.

Even if we reject CCA and view a harmful event as causing me to do worse (my view), this result still gets intuitions wrong.

A outcompetes B for C's love. This causes B's life to go very badly. A has harmed B, but he has not infringed B's right.

I hope the writing is going well.

Best,

Steve K

Bob Kelly May 30, 2020 at 2:07 PM

Steve,

Thanks for the reply. Two things. First, I don't think (or at least don't yet see) that your response addressed the first point. The suggestion was that there is just a disagreement about what to call these different types of harms. If CCA is true, then sure, they are both called 'harms'. But my suggestion was that they are different in an important sense. For instance, one is proactive and the other passive. If so, then even if you are right that we don't have a right against failures to benefit (passive harms), this may not tell us anything about whether we have a right against proactive harms. Whether we call them both 'harms' as CCA would have us do is, I think, irrelevant. They may be different enough such that learning about how rights relate to one type may not tell us about how rights relate to the other.

This leads to the second question. I'm not sure why (P1) is true still. You seem to have just restated that it is true. I was hoping you could elaborate on why no right against any kind of harm exists. Failure to benefit maybe seems more intuitive that a right infringement is not present. Causing harm is less intuitive, but I see why you'd think your case is intuitive. But suppose the harm that A causes B is intentional, or reasonably foreseeable, and that A can avoid it and there is little cost to doing so, and so on. It's now much less intutiive to me that the harm was not a right infringement. That doesn't mean there is one, it just means I want to know more about why we should think (P1) is so obvious, especially construed as general as you want it to be.

Thanks.

Phil Reed May 24, 2020 at 9:32 AM

The best that can be said for the central analogy of this paper is that the author succeeds at making both cases take place on a national holiday. Independence Day and Memorial Day really do have a lot of similarities.

Unfortunately, though, celebratory gunfire is not like refusing vaccination.

Perhaps most importantly, refusing vaccination is an omission. People who don’t vaccinate fail to do something. People who fire a gun into the air do something. People who give other people a small pox blanket or have unprotected sex do something. Mention of “omission” is entirely omitted in the paper. Even if Flanigan rejects the significance of the act/omission distinction, this deserves discussion. This dissimilarity has important public policy implications. It’s arguably easier to enforce the prohibition of acts than the prohibition of omissions.

A second dissimilarity is that the harm caused by the gunfire originates with the person shooting the gun, unlike the harm caused by not vaccinating. Flanigan says (p. 10) that “nature” and an agent’s decision both play a causal role in each of the cases. That is true (if nature is construed in the loosest possible way), but only in the gunfire case does the agent initiate the causal chain. Initiation arguably has important responsibility implications.

Relatedly, a third dissimilarity is that the harm caused by failure to vaccinate is not caused by a single agent’s decision. Even in cases where we can identify a single individual who passes on a disease to someone, that non-vaccinator passes on the disease in part because others refused to vaccinate. That is, non-vaccination (like overfishing, p. 12, and climate change) gives diffusion of responsibility. But in the celebratory gunfire case, the harm is caused solely by one person. There is no diffusion of responsibility. This dissimilarity also has important public policy implications.

These three dissimilarities are striking and seem to me more obviously relevant and significantly more problematic than the dissimilarities Flanigan discusses and dismisses on pp. 10-13.

It’s always fun for academics to pile on anti-vaxxers, but the analogy on which the argument rests simply does not work.

 

Replies

Stephen Kershnar May 24, 2020 at 9:56 AM

Phil:

Excellent points and well-stated. Two questions.

(1) Are you opposed to good samaritan laws on the basis that the bad samaritan (a) performs an omission, (b) the harm originates outside of him and (c) is not caused by his decision?

(2) Is taxation is different in kind rather than degree than a vaccination requirement?

A crude estimate is that aggregate taxation in the US likely means that some people work three, and perhaps four, out of ten hours for the government.

Best,

Steve K

Jack Freer May 24, 2020 at 1:48 PM

Phil, I absolutely agree on the commission / omission distinction here. Specifically, this is a plan for public policy, and as others have pointed out, the penalty / legal remedy for violators must be carefully thought out. Rounding up anti-vaxxers and their kids, and shooting them with vaccine-dipped darts probably won’t work. Indeed, it would probably produce more resistance.

David H May 24, 2020 at 5:42 PM

Phil

In regards to your first disanalogy, I think her point is not vaccinating weaponizes the person who then goes to (let's assume a non-private) party and sheds virus on others. so the omission of not vaccinating is soon followed by the act of unintentionally infecting other. It is like a bomb being activated by omission and then carrying it to the public space where it explodes. Or imagine the shooters omitted to put in blanks or rubber bullets etc. and then shot up in the air.

And in regards to your third disanalogy, she does mention that the non-vaccinator is not just a threat to fellow non-vaccinators as you observe, which might seem to remove liability, but also those who vaccinate with vaccines that aren't 100% effective

She does move too quickly from you have no right to infect people to no right to refuse vaccination. There is no reason given why we shouldn't infer that rather than undergo a mandatory vaccination anti-vaxxers may have to shelter at home in a gated community and private school with anti-vaxxers. So her necessity condition #3 may not be met

Other disanologies that might be interesting to explore is that not shooting, unlike vaccinating, is not all or nothing. You can shoot elsewhere or with blanks or rubber bullets, while vaccinating is all or nothing. She is asking non-vaccinators to give up more than shooters - bodily integrity, perhaps religious beliefs, and rendering them complicit (admittedly very remote, meditated material complicity) with some vaccines that are produced from aborted fetuses. The latter, ironically, ties in indirectly to the self defense and defense of others exception if it encourages further production. I will return later to the complicity issue, which, in the end may not be damning to Flanigan's thesis, but certainly warranted mention. It is rather surprising that wasn't addressed or just meant to be included in the basket category of religious objections

Stephen Kershnar May 25, 2020 at 9:46 AM

Phil, Jack, and David:

COMMISSION/OMISSION VS. CAUSING/NOT CAUSING

I don't think Phil's objection based on the commission-omission distinction works for two of Flanigan's suggested remedies. These remedies prevent commission-like activity with the virus.

(1) Going to school

(2) Working in jobs that have access to others, including the immunosuppressed

An omission can be a right infringement if one has agreed to it or there is an antecedent duty. Consider, for example, not paying taxes or neglecting one's child. Perhaps these do not apply here (bad news for those who supported the Obamacare fine or tax).

Imagine one had a type of radioactivity that would cause people's houses to sag and partially collapse if one walked by and, knowing this, a person walked down a rowhouse street. While this might be an omission, it is a causing rather than a not causing.

For non-consequentialism that does not focus on rights (an inferior kind), the relevant distinction is causing/not causing. The walker is on the wrong side of this distinction.

An unvaccinated walker is similar to the radioactive walker. As a result, she may be fined (she's a public and private nuisance) and made to pay liability.

Best.

David H May 25, 2020 at 1:24 PM

Steve,

I don’t think the causation/non-causation dichotomy is a helpful distinction – at least not without a lot of qualifications. On some theories of causation, regularity and counterfactual dependence, perhaps even omissions will be causings. If the theory of causation requires some “oomph”, a physical transmission of force, then omissions are not causes; However, one doesn’t capture the difference between killing and letting die with the causing/non-causing distinction as causing death would make all withdrawals of aid into killings while a more intuitive distinction is actions are cases of letting die if the person providing the aid withdrew it. Killing would involve (re)initiating/(re)imposing a fatal pathology that one wasn’t preventing. Moreover, a non-consequentialism that doesn’t focus on rights might make intentions important. Some killings and letting dies are intentional, some aren’t. People have a right not to be killed but they are wronged far more if the killing is intentional than not. I hope I don’t regret giving you an opportunity to rant about the irrelevance of intentionality. Please direct your response to Phil

Stephen Kershnar May 26, 2020 at 11:47 AM

FOR NON-CONSEQUENTIALISM THAT IS NOT RIGHT-BASED, WHY CAUSATION ALONE MATTERS

David and Phil:

As always, excellent points.

If rights do not alone govern non-consequentialism, and I think they do, then causation/non-causation matters and commission/omission and intention/mere foresight do not. Here are my two arguments.

OBJECT-CENTERED MORALITY.

(1) If non-consequentialism is true, then the wrongness of an act depends on, and only on, something affecting person who is acted upon (action-object).

(2) If wrongness of an act depends on, and only on, something affecting person who is acted upon, then the wrong-maker is, and only is, causation/non-causation.

(3) Hence, if non-consequentialism is true, then the wrong-maker is, and only is, causation/non-causation.

Causation is the way in which an event or object affects other things. I do not think omissions are causes and strongly suspect that neither do you.

The commission/omission and intention/mere foresight factor affects another only via causation.

INTEREST-BASED NON-CONSEQUENTIALISM

(4) If non-consequentialism is true, then the wrongness of an act depends on, and only on, whether something sets back someone’s interest.

(5) If wrongness of an act depends on, and only on, something sets back someone’s interest, then the wrong-maker is, and only is, causation/non-causation.

(6) Hence, if non-consequentialism is true, then the wrong-maker is, and only is, causation/non-causation.

A person does not have an interest in what the agent performs a commission or omission except in so far as it has a causal effect on him. A person does not have an interest in what an agent thinks about him except in so far as it affects his pleasure or, perhaps, an objective list good. Except in the possible case of friends and lovers, there is no basic objective-list interest in an object in what an agent thinks about an object.

If this is correct, then commission/omission does not matter. If intention/mere foresight matter at all for wrongness, they matter only in terms of friends and lovers. This has nothing to do with vaccination.

Best,

Steve K

Bob Kelly May 26, 2020 at 4:42 PM

Steve,

Why think that these two theories exhaust non-consequentialist options? I suspect this leaves any virtue theory out completely. But setting that aside, it's not clear why wrongness would depend on and only on someone acting on and affecting some other person. That almost sounds like it lends itself to consequentialism, at least some versions. But what about one's character? I suspect you'll say that this confuses responsibility with wrongness. Maybe the same response for intentions and other possible wrongmakers? Can this do all the work youd need it to in order to explain away every other plausible non-consequentialist wrongmaker?

And the explanation under the second argument seems incorrect. Of course someone could have an interest in whether someone does something by commission or omission. If by 'interest' you mean something like 'those interests that align with the correct moral view', then we would need to know what the correct moral view was (e.g. including whether causation/non-causation alone determined wrongness), and so the support for the argument begs the question. What else did you mean by 'interest' given my example? Some cases supporting DDE and the like are intuitive, even if you think the view ends up being wrong. Also, lots of people subscribe to such views. I think this amounts to two pieces of evidence in favor of there being people with an interest in whether someone does something via commission vs omission, or intentionally vs. unintentionally.

David H May 26, 2020 at 10:05 PM

Steve

I really don't know how to respond other than point out that to me and probably most people that it matters immensely to the wrongness of the act whether someone is killed intentionally or not, despite the cause being the same. It is usually a disrespect of the other that enables one to intentionally kill an innocent. That seems far worse than unintended killings. It involves a disregard of an intrinsic good or something like that. If you want to put it an terms of interests, I would say someone has a greater interest that their value not be disregarded and their death brought about as a result of that contempt or indifference as opposed to their death being brought about as an unintended consequence of some action that prevents. some evil. Their interest is not just to remain alive which is thus set back equally in both cases

It also matters immensely to morality of a death whether someone is killed or allowed to die though the action can be causally indistinguishible in that it involves withdrawing support. Let's say I am withdrawing support for someone that I am keeping alive by pressing on the wound. Fatigue sets in and I try to withdraw my hand but it spasms and locks up. I use my other hand to withdraw the hand. Compare this to someone who was not saving the person and pulls my locked up hand off. The same physical causation, morally quite different. He kills the person who would have been fine without him coming on the scene. He interferes with his life etc. I let someone die who dependent upon my help to remain alive. He didn't have a life independent of my efforts. If the police know all the relevant information and can only stop the death by shooting, it seems more plausible they can shoot the person who is killing than the person who is letting someone die.That suggests one is worse than the other

Omissions are causes if you mean by cause 'making a difference, bringing something about. I stop bailing out the boat, I cause it to sink. I have made a difference. If causation involves the exercise of a power that transmits force, than it is a different story. Causation can't distinguish letting someone die from killing unless you consider all withdrawals of aid to be killings which is not plausible

Phil Reed May 27, 2020 at 11:50 AM

This has been an interesting thread and I wish I could comment on everything. Naturally, David is right and Steve is wrong that intention is relevant to wrongness.

I read David's first comment above as saying that there is a commission in the non-vaccinator's case, viz. "the act of unintentionally infecting others." I don't think this is an act, just like metabolizing food is not an act.

Now, the non-vaccinator does perform an act: he goes to the party. But this act only causes the harm when conjoined with the omission (not vaccinating). And unlike the STD case, there are an indefinite number of acts that would have to be prohibited to prevent the harm: non-vaccination cannot be conjoined with going to parties, going to school, going to the elegant and exclusive J.P. Bullfeathers, etc. And that is wildly different from prohibiting random gunfire (as it is different from prohibiting just the omission of vaccination).

Stephen Kershnar May 28, 2020 at 10:15 AM

Bob, David, and Phil:

YOU DON'T OWN ME. ON WHY COMMISSION AND INTENTION DO NOT MATTER

Great points.

(1) David and Bob argue that people have an interest in whether someone acts with a commission or omission or whether they act intentionally or with mere foresight. Bob fills this out in terms of character. David fills this out in terms of respect (not having one's value disregarded).

There are three problems with this (correlative duty, intensifier theory, and blameworthiness doing all the work).

(a) Correlative Duty. If I have a right that people not think about me in certain ways when acting, then people have a duty to think about me in certain ways when acting. Yet, intuitively, I have no right with regard to how someone thinks about me. I don't own someone's mind or labor.

I own my body and property and the mere trespass on it is right-infringing even if it is blameless. Consider, for example, Joel Feinberg's cabin case. Similarly, if a fat man is involuntarily thrown down a well at me, I (like Nozick) can use my ray gun to disintegrate them.

(b) At most commission- and intention- are wrong-intensifiers. But I don't see any evidence for this other than intuitions that are more naturally interpreted as blameworthiness indicators.

(c) Blameworthiness. Let's say we interpret intention as making someone blameworthy, but not making his action wrongful. What do we lose by this concession? Not much, if anything. We have a broad based interest in people not having a bad will toward us as a reliable harm indicator. Plus, we have reason to end our relationship with them. This can account for the intuitions that we mistakenly assign to a wrong-intensifier.

(2) Phil's argument also ignores rights. He argues that the non-vaccinator does not cause harm even if he goes to a party populated by the immuno-disabled because it is accompanied by an omission and there is an indefinite number of acts that would have to be prohibited to prevent the harm (e.g., public schools).

Consider a person who goes to a party with a .45 loaded with hollow points and leaves it on the table near a bunch of 13 year-old boys. The boy then accidentally shoots two other boys. In this case, the gun owner goes to the party, but omitted to leave his gun at home or not leave it on the table. There are an indefinite number of acts that would have to be prohibited to prevent the harm (the people who made the gun, sold it, failed to vote for legislators who have no respect for 2nd Amendment in particular or the Constitution in general, etc.).

Here I am guessing Phil would think the gun-owner might be subject to a fine for leaving the gun around or liable after the fact. If so, then I am not following his argument.

In summary, blameworthiness does all the work we want and need from commission and intention without third parties owning our minds and labor.

Best,

Steve K

Stephen Kershnar May 28, 2020 at 10:25 AM

FOR COMMONSENSE CAUSATION

David:

If you do not think that causation as similar to force, momentum, etc., I ask you the following question.

Today, you did not kill your mailman. You probably didn't even think about doing so. Let's assume he lives until he's 100. Did you cause him to live a long life? Did you cause everything he does from tomorrow onward. Intuitively, the answer is no.

Also, the difference-making test (depends on how one individuates events) might not allow an overdetermined event to be caused by any one of its causes (it made no difference).

Best to look at cause in the commonsense way.

Best,

Steve K

David H May 28, 2020 at 12:59 PM

Steve

I am not so much interested in regimenting causation talk as I am in distinguishing killing and letting die and causation is not much help in the cases of withdrawing aid that are killings as opposed to those that are death allowings.

I don’t like to think of omissions as causes but many people do and they do so in way that doesn’t make me the cause of the long life of the mailman living beneath me. For instance, when

Honore and Hart discuss on omissions as causes and emphasize that not only actions but also negative states, static conditions and omissions can be causes: "there is no convenient substitute for statements that the lack of the rain was the cause of the failure of the corn crop, the icy condition of the road was the cause of the accident, the failure of the signalman to pull the lever was the cause of the train smash.”p. 29

"and what is taken as normal for the purpose of the distinction between cause and mere conditions is very often an artefact of human habit, custom or convention. This is so because men have discovered that nature is not only sometimes harmful if we intervene, but it is also sometimes harmful unless we intervene, and have developed customary techniques, procedures and routines to counteract such harm. These have become a second 'nature' and so a second 'norm'. The effect of drought is regularly neutralized by governmental precautions in preserving water or food; disease is neutralized by inoculation; rain by the use of umbrellas. When such man-made conditions are established, deviations will be regarded as exceptional and so rank as the cause of harm. It is obvious that in such cases what is selected as the cause from the total set of conditions will often be an omission which coincides with what is reprehensible by established standards of behaviour ..." (p. 31)

J.F Stephens, the leading Victorian criminal jurist, “killing meant causing death directly, distinctly, and not too remotely,’ whether by act or omission.” (p.88 in Guyora Binder’s “The Meaning of Killing”)

David H May 28, 2020 at 2:07 PM

Steve

Intentions and wrongmakers.

There is no wrongness, just harm, without intentions of moral agents. Lightening can’t wrong the person killed or violate their rights. Animals can’t wrong the person they kill and violate their rights. Only a moral agent with intentions can wrong someone.

Duress, provocation, crimes of passion may make it that killers may be excused or responsibility could be diminished without the wrong being less. Would an incompatibilist say the wrongfulness of intentional killing is eliminated with determinism or just blameworthiness? I think only the latter.

Reckless killings wrong someone, violate their rights not to be killed, but just don’t wrong them as much as intentional killing. But the reckless killer’s character could even be worse than the intentional killer. Perhaps only the reckless is disposed to have no regrets or if given the opportunity would have intentionally tortured and killed the person he happened to just recklessly kill.

Stephen Kershnar May 30, 2020 at 9:52 AM

CONTRUCTIVISM ABOUT CAUSATION CANNOT BE USED TO SHOW THAT OMISSIONS ARE CAUSES IN A WAY THAT YOU AND I CARE ABOUT.

David:

Another great point.

Hart and Honore’s theory supports my view in the following way. They argue for the following propositions.

(1) Whether an omission or stasis is a cause is contextual.

Specifically, it depends on a number of things, one of which is that in which we are interested. I am assuming this in part determines custom and convention. On their account, then, causation depends on the way in which we think about the world.

(2) What is a cause depends, at least in part, on the way in which we think the world.

A constructivist theory of cause will establish that omission is a cause, but only if you are willing to accept constructivism. I reject it. I suspect you do too.

For instance, if we have a custom or convention with regard to Jewish centers and power forwards who kill their mailman, would it then be the case that your restraint caused his grandchildren to enjoy summer camp because you didn’t kill him in the 1982? Nope.

Best,

Steve K

Stephen Kershnar May 30, 2020 at 9:53 AM

INTENTION IS AN ESSENTIAL CONDITION FOR AN ACT. IT IS NOT A WRONG-MAKER.

David:

As always, excellent points.

Let us first consider your first claim.

(1) An act is wrong only if it is done with the intention of a moral agent.

You have given a necessary condition for wrongness.

Consider the relevant issue: What type of intention makes an act wrong? Does the intention have to be to (a) harm the victim or (b) do something wrong?

It cannot be (a) alone. If A goes to shoot B, but misses and shoots C (assuming B and C are innocent), A wrongs C.

It cannot be (b). If A thinks he is morally permitted to shoot B for blasphemy, but he is not, his act is wrong even though he did not intend to do something wrong.

Perhaps you would respond it is merely acting from an intention, whatever it may be. I respond that this is a necessary condition to have an act (stealing the idea from Donald Davidson) and not a wrong-maker. Also, the fact that you cannot specify the relevant type of intention is a wrongness-intensifier should give us both pause.

In short, you have not established (2).

(2) An act is wrong because of the intention with which the agent acts.

You next argue the following two propositions.

(3) A blameless act (via duress or provocation) can be wrong.

(4) Hard determinism allows for wrong acts.

Proposition (3) is compatible with my position. It is because (when not overridden) right-infringing acts are wrong. This does not show intentions are relevant. The same is true for (4).

In any case, I think (4) is false for several reasons. First, if ought implies can, at least in a two-way sense, then there are no wrong acts. The arguments to the contrary (see, for example, John Martin Fischer’s argument) are unconvincing. Second, we do not think that non-human apes act wrongly even though they act with intentions and, arguably, infringe other apes’ rights. This is because they are not morally responsible agents.

Best,

Steve K

Bob Kelly May 30, 2020 at 2:45 PM

This is an interesting discussion. I wonder though what the real disagreements here actually are. Phil tries to object to the analogy by saying that non-vaccination is an omission and random gunfire is a commission. Steve thought this distinction is irrelevant to right infringements (and hence wrong-making). However, I wonder if two points are relevant here.

First, while this deviates some from Flanigan's conclusion, why think that the omission of non-vaccination is all that matters? I get that she is trying to establish mandatory vaccination. But even she says that this may not mean forcing vaccination. It may just mean implementing other consequences. So, the conclusion might be: if you omit from being vaccinated, then you will be subject to certain consequences. Why can't we just further add that those consequences will only matter if you perform certain actions (like knowingly exposing yourself to risk of infection or risk of spreading infection). For instance, we can't force you to get vaccinated, since someone may omit from vaccination but stay in their house and never come out. But once you perform an action that, given your non-vaccination (and maybe certain knowledge or reasonable foresight), would violate others' rights against not being harmed by illness, then we can intervene (and stop you, or fine you, or maybe even preemptively keep you from so acting by banning you from things). It would still come down to whether people have a right against not being harmed in this way (e.g. by another's negligent action). But at least we would avoid disagreements about the relevance of act/omission to wrong-making.

Second, I'm just not sure it matters whether we call omission a 'wrong-maker' (i.e., for Steve, a 'right-infringement maker') or a 'blame-maker/-intensifier' or whatever else. As long as you think omissions matter to whether we can morally respond in some way, then why does it matter if omission or intention makes an act wrong as opposed to making it morally bad, vicious, harmful, or what have you? As long as it is morally relevant, I don't see why the disagreements above make much difference. The non-vaccinator might, by omission, cause a ton of harm that we should be interested in stopping. Maybe if it can't be a right-violation then we can't do certain things. But we may be obligated to do as much as we can without unnecessarily violating the non-vaccer's rights. If Bruce Banner omits from taking his Hulk-restraining meds, then we seem permitted to do SOMETHING to stop the carnage that may ensue. Depending on the potential harm, maybe we can't hold him down and shoot him up with the meds. But maybe we can ban him from public gatherings, especially if Banner has foresight about the consequences and if Hulk is responsive to motivating reasons (which he may not be, but non-vaccers are).

David H May 30, 2020 at 7:58 PM

Steve

My point #3 was responding to your claim that intention is only relevant to culpability, not wrongness. So I imagined a case where culpability was diminished but not wrongness. I conjectured the reason wrongness wasn't decreased because there was still the intention to act against an intrinsic good, despite the stresses or pressures.

You may claim that there was not a reduction in wrongness because there is a right violated, regardless of whether it was intentional or not, blameworthy or not. But my initial point is that if only creatures capable of intentionally respecting or disregarding value can wrong others, then it is not a surprise that if such intentional capabilities are necessary conditions for wrongness that wrongness will fluctuate with the extent to which one disregards, destroys or respects value

I am not claiming that only intentional acts can wrong, but only that those capable of intentionally disrespecting and respecting value can commit wrongs. A can unintentionally kill C when shooting at B. A's disregard of C's value is wrong, only because A is capable of intentional moral agency, but not as wrong as intentionally killing B. An act that is an intentional destruction of value is more evil than an act that is an unintentional destruction of value. That is why retributivist punish intentional killlings more severely than unintentional killings

Non-consequentialists care about the killing/letting die distinction. It doesn't map onto the doing/allowing, acting/omitting, causing/non-causing distinction. Whatever the proper account of causation, it won't be relevant to the killing/letting die distinction as "killing" can't be defined "as causing to die." That is why I took issue with your claim "(3) Hence, if non-consequentialism is true, then the wrong-maker is, and only is, causation/non-causation."

Phil Reed May 24, 2020 at 9:33 AM

I’m also surprised to learn that we are entitled to a disease-free environment. We need to inform the novel coronavirus.

Flanigan says on p. 11, “As I argued earlier in this essay, people have entitlements against being made sick by others.” Does anyone know where this earlier argument is?

Replies

Neil Feit May 24, 2020 at 9:48 PM

I suppose that if it's anywhere, it's on the top of p. 6. She might think the entitlement derives from the duties that others have not to harm innocents.

Phil Reed May 24, 2020 at 9:33 AM

Flanigan devotes an entire section to the alleged opposition to vaccination from religion. This is a myth. There are no common religious objections to vaccinations, as a cursory examination reveals.

https://pubmed.ncbi.nlm.nih.gov/23499565/ https://slate.com/technology/2015/02/religious-exemption-for-vaccines-christian-scientists-catholics-and-dutch-reform-church.html

Flanigan might mean that anti-vaxxers tend also to be religious. Or perhaps she is using “religion” as a stand-in for conscience or philosophy. Either way, it’s sloppy.

 

Stephen Kershnar May 24, 2020 at 9:37 AM

JESSICA FLANIGAN’S THEORY OF RIGHTS – PART 2

Right versus Risk of Right

(P1) The risk here is the risk of a right infringement.

(P2) The risk of a right infringement is not itself a right infringement.

(P3) If (P1) and (P2), then there is no right infringement

Distinguish the following.

(a) Harm

(b) Risk of harm

(c) Risk of right infringement

Even if there were a right against harm [(a) is true], there is no reason to believe that there is a right against risk of harm [(b) is true].

Argument #2a: Similarity. To see this, consider that (b) is more similar to (c) than (a).

Argument #2b: Setback. A risk does not by itself set back someone’s interest or autonomy as relates to their body or property.

The problem of risked harm or right-infringement (for example, celebratory gunfire) is a problem for rights theory, not a paradigm instance of a right infringement.

I should note that John Oberdiek provides an interesting argument that some risks are right-infringing because they set back an interest in autonomy.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1475345

Best,

Steve K

Replies

Bob Kelly May 26, 2020 at 4:47 PM

Steve,

I paste my comment from the email exchange below. I don't know if I quite understood the response? Can you say more?

Here is the comment:

"it seems like the content needs to be filled in to know this - in other words, (b) is not necessarily more similar to (c) than (a). Here are examples. For (b), I softly poke you with a needle in the arm (with your consent) but inadvertently hit scar tissue and so it doesn't hurt you (but would have hurt had I poked 1 mm to the right, so it risked harm since I didn't really control the placement to that degree). For (a), I do the same thing to David (with his consent), but it hits normal flesh and so slightly hurts. For (c), you are dating a twin who soberly consents to you engaging in sex with her while she is drunk. Her sister has given no such consent to you. You see her and her identical twin sister both very drunk, and are not positive who is who. You take the 50-50 shot and lead one into the bedroom and engage in sex. It ends up being your girlfriend after all, so no right is violated.

It seems like (b) is more like (a) than (c) here."

Stephen Kershnar May 28, 2020 at 10:31 AM

Bob:

Good point. Still, I don't see why in the dating twins case I harm anyone. No one's bodily right is trespassed. Nor does any other harm occur. I would not owe compensation or be subject to punishment (if harm were to ground these responses).

I am reckless and, therefore, blameworthy. Perhaps I should apologize not because I acted wrongfully, but to re-establish a good relationship with the girlfriend.

If this is true in the girlfriend case, then it seems true in the sister case.

By analogy, you flip a coin (heads you do it, tails you don't)as to whether to play Russian Roulette on Jones when he is sleeping. It comes up tails. Have you harmed him or infringed on his right? I don't think so. How is playing Russian Roulette any different?

Best,

Steve K

Bob Kelly May 30, 2020 at 2:52 PM

Steve,

The claim is not that you harm or wrong anyone in (c) (the twin case), or in your Russian Roulette case. The claim is that (c) seems super different from (b), and more specifically, that (b) seems much more like (a) than like (c), contrary to your claim #2a in the original post.

Stephen Kershnar May 24, 2020 at 9:39 AM

CRITERION FOR UNDUE RISK

Backdoor Consequentialism

(P1) The threshold for sufficient harm or risk of harm is set by a cost-benefit analysis.

(P2) If (P1), then there is no right infringement (wrong, if any, is consequentialist).

The cost-benefit analysis can be seen in Flanigan’s discussion of probability and magnitude of harm (see p. 13 n. 9) and aggregate contributions – traffic and overfishing (see p. 12 para. 4). For example, there is no right that people with colds or other minor diseases stay away from the immunosuppressed.

Too Broad

(P1) If a cost-benefit analysis is used to set the threshold for a right against harm or risk of harm, then contagious behaviors can be banned.

(P2) If (1), then the purported right is too broad.

Divorce is contagious (see link below) and bad for children. If her argument works and the risk of harm is great enough, then we should restrict divorced parents from being around young married parents, fine them, and make them liable for the harm to children. Ditto for obesity, including one's children.

https://www.pewresearch.org/fact-tank/2013/10/21/is-divorce-contagious/

https://www.webmd.com/diet/obesity/news/20180123/is-obesity-contagious#1

This result is too strong.

Best,

Steve K

Replies

Jack Freer May 24, 2020 at 5:23 PM

Steve, use of the word "contagious" in regard to behaviors (like divorce) is intentionally hyperbolic. It wouldn't surprise you to see "contagious" in quotes relative to divorce; you would never see the quotes in regard to syphilis.

The decision, however, to curtail civil liberties is not based (solely) on whether it is contagious. Rather, it is a complex calculation of risk and benefit. Even behavioral "contagious" "diseases" (like hate speech) might be deemed dangerous enough to act. There is, of course, no consensus on the threshold. Historically, the US has tolerated outrageous speech (on principle), which other western democracies have deemed illegal.

Stephen Kershnar May 25, 2020 at 9:55 AM

Jack:

As always, excellent points. However, I have to disagree for a couple of reasons.

(1) The definition of contagious includes, "exciting ... similar conduct in others."

https://www.merriam-webster.com/dictionary/contagious

So I'm not sure why the word would need to quotes around it.

(2) If the decision as to what to curtail were to result from a cost-benefit analysis, then we are not acting on the basis of rights, but rather on something like an economic calculation. Perhaps this is the way to consider the issue, but Flanigan gives us a right-based argument.

(3) If we use a cost-benefit analysis, we would need a calculation (however crude) as to whether to quarantine or restrict the divorced and obese. In contrast, I suspect we should reject this out of hand.

(4) Flanigan might argue that we should use a cost-benefit analysis only if we have a causing (or commission) action. The justification here would be odd. There is no good reason to require both.

Best.

Harvey Berman May 24, 2020 at 2:24 PM

I wonder, considering how sloppy the analogy as per Phil, would any of you real philosophers, as editors of a journal approve this paper for publication. I was unable to get past my initial response upon reading and re-reading the arguments in this paper, that was little historical substance in it.

Yet, what I find interesting is how much I learned from the posted comments.

Finally, consider the difference between two types of vaccinations:

1) those that are medically necessary (measles, smallpox)

2) those are necessary in practice, or practically necessary (HPV)

So, to answer Steve, I would mandate vaccination for the former, with the provision that the vaccine was determined to be effective.

Which is to ask: Who would risk any new COVID vaccine that the president recommended?

Harvey Berman May 24, 2020 at 2:27 PM

Yet, I wish to ask:

How far can a government go in curtailing civil liberties during a heath crisis?

That question is a the heart of the protests in Michigan where, talk of celebratory gun fire, men appeared wearing all sorts of rifles and firearms.

 

David H May 24, 2020 at 9:31 PM

Steve,

Do you think I have some right infringed if others are so contagious with a life threatening disease that their presence in public means that the only reasonable way for me to maintain my health is for me not to go to work, stores, school, church, doctors, parks, voting places etc? Or do I have no right infringed unless I actually get sick? It thus seems that I have a right not to have such risks imposed or I have a right that others not make make it so difficult for me to satisfy some other right to vote, associate, practice religion, earn a livelihood etc.

Replies

Stephen Kershnar May 25, 2020 at 10:12 AM

David:

GENERAL PRINCIPLE / DILEMMA

Great points.

(1) Here is my general principle: If X justifies right Y, then Y is infringed only if X is set back.

Do you disagree with this principle?

A mere risk of setting back of an interest or autonomy (X) cannot be a right infringement because it does not set back whatever justifies a right. If a person has an interest in not being in fear, then imposing a risk that causes someone to be in fear might be a right infringement. This does not happen if he does not know about the risk, however grave (e.g., Russian Roulette on the sleeping).

(2) Do you think that the risks that are acceptable or unacceptable depend on something other than a cost-benefit analysis?

(a) If yes, then it is hard to see why we should exclude relevant factors or give some of them undue weight when multiple factors are in play. By analogy, consider how we would apply a strict-scrutiny analysis to a government proposal to restrict certain protected speech.

(b) If no, then do you think that a right can rest on, and only on, a cost-benefit analysis? I suspect your answer to this question is no, so we're back to (a).

David H May 25, 2020 at 3:46 PM

Steve,

You can have interests that are frustrated that you are unaware of being frustrated. If some interests are of sufficient importance for rights then perhaps your interest in not being put in a dangerous scenario, even if you are unaware of it, could be set back and the correlated right violated. The reason need not be you want to avoid fear which requires experience. For example, you could have an interest and a right that someone not make an attempt on your life even if you are unaware of the failed attempt. The attempt expresses contempt; even recklessness can express disrespect. So maybe people have rights against some risks because they have fundamental interests that such rights protect

Stephen Kershnar May 26, 2020 at 11:55 AM

THERE IS NO RIGHT AGAINST RISK BECAUSE RISK PER SE DOES NOT SET BACK AN INTEREST

David:

Good points.

I am not sure how you would respond to the dilemma about risks.

Even if you have an interest in something you need not be aware of, why do you have an interest against unsuccessful attempts to injure you?

Either this rests on an interest against risk per se or it rests on an interest against another's attitude toward you. Neither is attractive.

(1) It is hard to see why a risk per se makes my life go worse.

(2) If the interest in not being exposed to risk were based on an interest in another not having an attitude toward oneself, then (a) this is not tied to risk per se (risk is contingently connected to an attitude) and (b) inadvertent risks would not be wrongful.

Consider, for example, when A tries to play Russian Roulette on B but accidentally plays it on C. If you tell me that A did not wrong C because of the absence of an objectionable attitude, then I think you have given an implausible version of the right against risk.

Best,

Steve K

Neil Feit May 24, 2020 at 10:17 PM

I'm inclined to agree with Flanigan that there can be cases where infecting someone is wrong. As Steve K points out, we probably do not have a right not to be harmed per se, as many examples show. But the argument can be given without rights-talk, I think, and infecting can be wrong because it is a kind of bodily invasion broadly similar to the gunshot case. I agree with David H that the move from infecting someone being wrong, to not vaccinating being wrong, is too quick. But maybe Flanigan does not need anti-vaxxers' behavior to be wrong, or for them to have no right to refuse vaccination. If they are blameworthy even without wrongdoing (perhaps like the shooters whose bullets don't harm) and their behavior results in significant harm to others or substantially increases the risk of such harm, this seems to give some good reason to think that mandatory vaccine policies are permissible.

Replies

Stephen Kershnar May 25, 2020 at 10:19 AM

Neil:

Great point.

Still, I wonder whether rights-talk is necessary to establish wrongness here. Mere body invasion isn't wrong. Consider, for example, surgery and voluntary sex. Nor is harm sufficient for wrongness as your own work shows. Ditto for blameworthiness. It is conceptually distinct from wrongness.

If (a) individually body invasion, harm, and blameworthiness are not wrong, why would (b) the conjunction of them be wrong?

Flanigan is sneaking in consequentialism through the back door.

Best.

Neil Feit May 26, 2020 at 11:35 AM

An unjust bodily invasion would be wrong. If you think rights are needed to make sense of that, then yes, rights would be needed at the first step, which is to establish the wrongness of one person infecting another. Even though Flanigan moves to the wrongness of not vaccinating from this first step, I was trying out the idea that this isn't necessary.

Stephen Kershnar May 26, 2020 at 11:57 AM

Good point. I have to agree. Best.

Bob Kelly May 25, 2020 at 6:14 PM

Test post

Replies

Phil Reed May 27, 2020 at 12:03 PM

Great post Bob! pass.

David H May 27, 2020 at 2:41 PM

Indeed. Flawless. Rob is the only one of us who can claim that it is impossible for his post to have any errors. Heck, it took me three tries to post these four sentences without any obvious spelling or grammatical errors. I thought it was safe to publish without preview.

Bob Kelly May 30, 2020 at 2:54 PM

Test reply.

David H May 26, 2020 at 12:19 AM

Hypothetical anti-vaxxer concerned about past complicity:

I mentioned in an earlier post that I wished Flanigan has considered the complicity objection to vaccines that are made from aborted fetuses. The vaccines for rubella, chickenpox and hepatitis A are derived from aborted fetuses and there is no alternative vaccine. https://www.ncbcenter.org/resources-and-statements/faq-on-the-use-of-vaccines?rq=vaccines . I will create a hypothetical anti-vaxxer that has backward and forward looking complicity concerns. Even if complicity is not an issue, the example may extend Flanigan’s exemption from vaccination in defense of others, though she thought the only example of this was pregnant women who shouldn’t take the MMR vaccine for the sake of their fetuses. Ironically, anti-vaxxers may be opting out for the sake of fetuses that may be used to produce vaccines or aborted as a result of laws that allow other fetuses to be sources for vaccines.

Case 1: Jones unjustly kills Smith to obtain an organ to save the life of Mrs. Jones.

Case 2: Jones unjustly kills Smith and sells Smith’s organs to defray his costs

Case 3;Jones unjustly kills Smith at Mrs. Smith’s urging and she donates husband’s life-saving organs

Justice typically involves thwarting the unjust aim of the criminal and so provides a prima facie reason not to help Jones fulfill his evil plan in case 1 by facilitating the organ transfer.

Jones may not kill Smith if he knew he would lose money in case 2.

Mrs. Smith has no standing as a proxy in case 3 to decide what should be done with Jones’ body since she showed no proxy-like concern for her husband. It is wrong to donate body parts without consent despite what Delaney and Hershenov said in a Kennedy Institute Ethics Journal paper. (Anyway, a conference anthology referee said they didn’t actually believe what they wrote and so should be the only conference paper not accepted in the anthology)

Case 1* Rogue Planned Parenthood clinic pressures staffers to increase unjust abortions to earn the money that the pharmaceutical pays for body parts

Case 2* Planned Parenthood unjustly kills fetus and then sells remains to pharmaceutical vaccine maker to defray costs without which they may not have been able to stay in the abortion business

Case 3* Woman unjustly aborts and decides to donate body parts without aborted’s consent

Given the reasoning above, one might share the pro-life anti-vaxxer’s complicity concerns. I suspect the evils of material complicity in cases 2 and 3 are not proportionate to the evils prevented by vaccination. Anyway, case #1, # 2 and #3 are not true of the actual fetal remains used in the known vaccines so I reject the hypothetical anti-vaxxer’s argument. But what if it were historically accurate?

David H May 26, 2020 at 12:21 AM

Hypothetical anti- vaxxer concerned about future complicity

Flanigan allows non-vaccination in defense of self or others. She writes of the latter that “The only case where his condition is relevant is vaccination requirements for pregnant women.” I wonder if there is not an extended sense of defense of others. Consider the following with apologies to Bernard Williams: Pro-life Jim believes fetuses have the moral status of persons. Jim is threatened to participate in an abortion by a South American captain who threatens to otherwise bring about the abortion of many Indians by dosing Jim with a contagious feticide that will spread with virus like probability to any pregnant woman Jim approaches. Does Jim have to participate in the deliberate abortion? If not, perhaps the anti-vaxxer doesn’t have vaccinate if there is a sense in which the contribution to the vaccine produced from the aborted fetus is close enough to the action that Jim is asked to further position.

Imagine Pro-lifer Jim is not performing the abortion but provides necessary material aid (money) without which the Captain can’t pay for the abortion. People may have some sympathy that Jim can refuse to intentionally provide the means to an unjust killing. Now imagine that paying for a vaccine made from an unjust abortion will make it more likely that pharmaceuticals will pay for fetal remains in the future rather than pursue vaccines from other sources which enables abortion clinics to stay in business or at least the payments incentivizes increasing their lethal business; the pharmaceuticals use their corporate resources to advocate continued legalization of abortion and destruction of frozen embryos; and there is a slight possibility that beneficial uses of embryo remains in vaccines will encourage woman to fatally dispose rather than preserve frozen embryos and make it easier for fence sitters to favor abortion. So the anti-vaxxer refuses to get vaccinated and then risks becoming an unintentional virus spreader. Our anti-vaxxers are not sharing the intentions of those who abort or advocating abortion so are not formally complicit but are refusing to deliberately do something that makes it possible for others to intentionally unjustly kill fetal people. As a result, they don’t vaccinate and unintentionally make it more likely they spread a fatal virus to innocents. Is deliberately refusing to provide material aid that enables others to engage in unjust intentional killings a good enough reason to not vaccinate? I doubt it but I am interested in what others think. Anyway, since Flanigan allows mothers not to vaccinate to save their fetuses, is my hypothetical anti-vaxxer refusal likewise a defense of others?

Catherine Nolan May 26, 2020 at 7:04 AM

Apologies for jumping in late here. I tend to agree with Neil (and Flanagan) that it can in some cases be wrong to infect others with a disease.

I also have the same sense that Steve does that Flanagan is including some cost-benefit analysis in assessing wrong-doing. I think this is absolutely necessary to make her point, though: as well as the four criteria that she offers, I think she needs to take into account the seriousness of the disease, the risks of vaccination, and the level of contagion, all of which are on a spectrum. Ought we to vaccinate everyone with the HPV vaccine in order to prevent the spread of warts? What if the vaccination has risks that are just slightly below the risks of the disease? What if contagion is possible but unlikely?

To go back to her (admittedly flawed) analogy of gun shooting, we don't ban water guns, though those cause (minor) harm, nor do we ban cap guns, though some people are prone to heart attacks or panic attacks at the sound. Likewise, we shouldn't mandate vaccines for all diseases that could harm another. Less contagious diseases could be compared to shooting in less crowded areas - and we definitely allow target practice and hunting.

If we don't use some kind of cost/benefit analysis, I have the same worry that Steve does, that we will end up attempting to force all kinds of behavior in order to minimize contagion. I don't think we need to look beyond disease contagion, though: why don't we mandate hand-washing, gloves, or masks (and not just during pandemics, but always, since there are always viruses making the rounds)? Should we just keep everyone in a bubble - not for their own sakes, but so they can't go out and infect anyone else?

A final minor annoyance of mine was when vaccination for STIs were ruled out by her second condition (that those exposed to the disease do not make themselves liable to the risks). What about instances of rape? Either she would need to qualify this by assuming that the non-vaccinated engages in minimally good behavior in all other ways (e.g. not raping people), which would be unrealistic, or she would end up in an extreme kind of victim-blaming where if someone has an STI they must have somehow consented to this. She does try to make an exception for children, who can't consent to sex, so I don't know why she doesn't take this to adults who haven't consented either.

At any rate, couldn't this condition rule out most of the need for vaccinations in other cases, too? If your child has leukemia, for instance, you acknowledge and accept certain risks by putting him in childcare. If you are human, you acknowledge and accept certain risks by leaving your home, going to work, taking public transit, celebrating Independence Day with your neighbors, etc. Why does she distinguish between the risk of having sex and the risk of going to a party on a national holiday?

Replies

Stephen Kershnar May 26, 2020 at 12:04 PM

Catherine:

I agree. I think she is trying to give a right-based argument and then filling out the conditions when the right is infringed and, when infringed, what its infringement calls for in terms of a cost-benefit analysis. I wonder why she would think this would work.

I hope life is treating you well and that you guys got out of Italy quickly and safely,

Steve K

Catherine Nolan May 27, 2020 at 1:49 PM

Thanks! Actually, we're still in Italy - we decided to sit it out, and it hasn't been horrible. The kids have an entire abandoned college campus to run around on, and the restrictions are loosening up now. They're trying to schedule a fall semester here, so it didn't make sense to find a new place to rent in the States or Canada.

David H May 26, 2020 at 9:35 PM

Catherine,

It is great to have you join in. Do you think you have a right that someone not attempt to kill you or JUST a right that they don't actually kill you? If the latter, is the reason the attempt is objectionable only because attempts increase risks? If attitudes to risks and benefits change, would it become permissible to attempt to kill someone or could there be a violation of their rights even when the attempt kill someone fails?

Catherine Nolan May 27, 2020 at 2:13 PM

David - I don't normally think in terms of rights (sorry Steve), but I do think it is wrong to attempt to kill someone else, and ot just because it increases risks, but because it involves wrong intentions. I may be misreading here (and I'm not completely wedded to these positions) but I don't think that attitudes to risks and benefits would ever make attempting to kill someone (assuming that this is not self-defense) permissible.

Speaking of self-defense, I wonder if a more plausible case can be made for vaccinations using self-defense: suppose an innocent aggressor can be stopped if you poke them with a needle; wouldn't that be a legitimate use of force?

Alternately, if one wants to talk about a right to bodily integrity, couldn't one say that a Typhoid Mary is unintentionally violating her victim's bodily integrity and that one could violate her bodily integrity by forcibly vaccinating her in order to prevent this? Though maybe this would lead right back to Flanagan's argument.

Jack Freer May 27, 2020 at 6:30 PM

It may be helpful to specify exactly who the patient is for each decision. For most, there will be two “patients,” the one receiving the vaccine and the other is the public. The decision, therefore, is made by the human receiving the shot AND by the public (in the form of its elected representatives). The balance of risks/benefits (in the latter decision) are those of society’s. Hence, it is unfortunate, but totally acceptable that some are injured (even fatally) by the vaccine, as long as considerably more are prevented from lethal harm.

This disconnect is confusing to people if not explicitly explained. When personal and public health decisions clash, there is no easy reconciliation. Hence, when someone decides they don’t a shot (the first question many patients ask is: “will it hurt?”), they scramble for the escape clause. In their wisdom, legislators decided religious objections are sufficient (despite the absence of evidence, as Phil points out). Therefore that’s the way out for people who wish to avoid it (nobody has to produce a letter from their shaman etc).

Failing to understand (or perhaps , care) who the patient really is explains anti-face maskers as well.

Jim Delaney May 26, 2020 at 12:58 PM

My apologies for jumping into this late. My major concern, which was brought up in some of the earlier posts by Phil and others, is with the gunfire analogy. If there is a right against being harmed by the risky behavior of others, then I think it is reasonable that we would restrict the behavior of shooting a gun in the air in celebration. But the case of compelling someone to be vaccinated isn’t directly restricting the behavior of spreading disease. It is restricting the behavior of spreading disease indirectly, by injecting someone with a substance. It seems a little strange to call spreading disease “behavior” but it would be the acts of coughing in close proximity to others or something like that.

Compelling someone to be injected with a substance (or inhaling it, or taking a pill, etc.) seems to violate the right to bodily integrity. The right to control what happens to one’s body and what goes into it is standardly understood to be one of the most fundamental in talk of rights. Admittedly it is very small, but there are risks of having a bad reaction to vaccine (obviously though, there is no credible evidence to support the sorts of risks that anti-vaxxers typically raise). It does not seem that there are any risks at all in restricting the someone from engaging in the behavior of shooting a gun. And even if there is no risk, I still have a right against people violating by bodily integrity by laying hands upon me. So an important part of where the analogy breaks down for me is that there is plausibly a right to bodily integrity that is violated in the vaccine case that is not violated in the restriction of gunfire case. Flanigan does discuss bodily integrity at the end of the paper, but I don’t see that she really addresses this point She instead goes into a discussion of informed consent (she seems more concerned to distinguish her cases from paternalism). I do think consent is important. There might be a difference between pinning someone down and forcibly injecting them, and compelling them to be injected by threats. But if these threats are coercive then consent is not valid and the right to bodily integrity is violated. It’s easy to come up with examples.

So I am left in the position that David expressed earlier. Even if there is a right against being harmed by others by their spreading disease, the gunfire analogy doesn’t get you to compulsory vaccination. At best, it gets you to preventing harm by directly restricting behavior that puts people at risk, like coughing on them, or getting within six feet of them, or possibly not wearing a mask. Wearing a mask is putting something on/in contact with your body, but it does not seem as invasive as a vaccine. And if we compel people to wear clothes with indecent exposure laws, then a mask seems pretty unobjectionable. Incidentally, people have been charged for coughing on other people during the pandemic (https://www.nytimes.com/2020/03/25/us/coronavirus-terrorism-nj.html). I suspect in most cases this happens when the person is intending to threaten the other person.

I am not convinced that the gunfire analogy can establish compulsory vaccination. But I am wondering if others think it can justify social distancing measures in public places, masks, etc.? I suppose I am inclined to say yes. To me it seems fairly obvious that we are justified in enforcing these measures and compelling people to adhere to them. There is of course a lot of opposition to it, at least when one turns on the news. Maybe the people who object to them have no problem firing guns into the air?

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Bob Kelly May 26, 2020 at 5:25 PM

Jim,

Rather than make my own post of my reactions, I will echo you here in saying that I had a lot of similar feelings as those expressed above, and then address your last paragraph as a way of expressing my concern with the paper.

Yes, the move from the analogy to the conclusion was quick. But I also agree with you that I am inclined to answer "yes" as well to the question of whether the analogy justifies other (weaker?) measures--or at least a weaker moral conclusion if not specific measures. In other words, I find the cases and the analogy pretty intuitive at some basic level. But this leads me to my worry with the paper. I just didn't really see Flannigan do much beyond riding this surface intuition about the analogy. In many of her responses to objections, including the ones based in rights to integrity and consent and so on, she simply (implicitly) falls back on the intuition. For instance, in response to a rights-based objection she says:

"But the principle of informed consent does not go so far as to justify harming others with one’s medical choices (O’Neill 2004). Just as patients’ rights do not entitle a person to willfully contract a contagious illness and expose others to the risks of transmission, informed consent does not entitle patients to expose others to the risks of transmission with their refusal choices."

Well that's just what we're trying to figure out, I thought. I felt this way through most of the paper. She starts with the (or rather, her) intuition about these cases, and then at each bump it's as if she says, "yeah but I mean we have a right not to be harmed or put at risk by people with contagious diseases--just like the random gunfire case, you know. It's harming and risking harming people. That's wrong." She even does this in response to some of the disanalogies and not just the rights-based objections, like when she says in response to the probability disanalogy that we would still have the same intuition if gunfire was less likely to harm people than it is. The same response is given to the potential disanalogy that individual people contribute a negligible amount of harm. She just modifies the gunfire analogy and moves on.

In short, I think there is a super plausible position to be held in there that falls somewhere above doing nothing and somewhere below forcing shots into people. Maybe it's her fines. Maybe it looks more like masks and social distancing measures as you suggest. The problem is just that she didn't really defend any of it with much substance.

Jack Freer May 28, 2020 at 11:31 AM

New poll out today says that "about half" of people would get a Covid-19 vaccine: https://www.theguardian.com/world/2020/may/27/americans-covid-19-vaccine-poll

How does this influence our thinking about mandatory vaccination? Make it more necessary? Make it more difficult politically/practically?

If a safe, effective vaccine were available, would it be fair to treat those who refuse differently from others (for example, deny certain modalities such as ICU bed or ventilators, or charge higher health insurance premiums)?

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David H May 28, 2020 at 3:05 PM

Jack

That is a worrisome poll. I said in the earlier Wasserman blog discussion in response to a post by Jim Delaney that medical resources shouldn't be distributed according to patient's virtue but mentioned one exception and that is if both parties need a scarce organ and one is to be blamed for causing the other's organ failure. I think I might thus be committed to saying those anti-vaxxers (perhaps qualified for those who don't take vaccines for reasons of self defense or complicity concerns) who are to be blamed for the other's disease might go to the back of the queue in relation to that person, but not in relation to others with the virus whom they didn't infect. So someone's folly in engaging in risky behavior doesn't put them back of the queue despite their taking resources that would have gone to conscientious and prudent citizens, but being morally responsible for someone's ill health may make them lose out relative to the person they wrongfully harmed. But I am not sure how principled is the distinction between anti-vaxxer A negligently harming B directly (infecting B) and the anti-vaxxer's irresponsibility indirectly hurting someone else C who needs but doesn't get the same virus fighting medical resources as the now infected anti-vaxxer A just because C isn't infected by the anti-vaxxer A or infected by someone who can trace his infection back to A

Jack Freer May 28, 2020 at 5:25 PM

David,

The problem you describe is probably only one of many difficulties with re-distribution of resources as a response to non-vaccination. The more logical remedy is adjusting the health insurance premiums upward (as one might do for smokers). It doesn't really matter precisely which individual one is complicit in making sick. That is probably unknowable. What we do know is that an unvaccinated individual will almost certainly raise the total societal health care costs (by a finite, if unknowable, amount).

David H May 28, 2020 at 5:54 PM

Jack

Do you think the higher premiums are a moral tax or just like predisposing conditions, an indicator of greater likelihood of higher costs? Higher premiums, if somewhat prohibitive, could mean some people will get less medical care than others as a result of their vices. But the vice qua vice is irrelevant, it is just the probability of needing more expensive care. So it isn't a moral tax or rationing on the basis of the person's worth, value or desert. I am most interested in whether evaluative judgments about anti-vaxxers should play a role in access to beds, procedures, ventilators, remsdesivir, etc.

Jack Freer May 28, 2020 at 6:58 PM

David,

Probably most instances of moral taxation (booze, tobacco) share an element of behavioral influencing —while the revenue generated is not insignificant, reduction in the (undesirable) behavior seems the primary goal. This might further moral, health and/or esthetic ends. To the extent that the tax does not discourage the behavior, it is less justifiable since it would penalize the most vulnerable.

Although I initially mentioned access to treatment as a possibility, I think that could only be a factor for scarce resources (and even then, only as part of a comprehensive allocation system).

Harvey Berman May 30, 2020 at 1:22 PM

To get back to the original question which caught my attention was the accommodation of non-or-anti-vaxxers:

The Guardian article is not worrisome and seems more sensational than it really is. The poll shows that there will be only 50% uptake of a potential COVID vaccine. That is no different than the uptake of the seasonal flu vaccine. Vaccination coverage varies by states, there being states where the vaccination coverage barely reaches 45% for both children and adults and others where it approaches 85% https://www.cdc.gov/flu/fluvaxview/coverage-1819estimates.htm. But in the same Guardian article it notes that 30 % of respondents were unsure if they would or would not take the vaccine. And concern was if the vaccine — rushed at “warp speed” — was safe.

The uncertainty or fears are not without justification, as there have been defined incidents during which vaccines caused harm. The Cutter incident (1955) in preparing the polio vaccine; a rotavirus vaccine withdrawal in 1998 by Wyeth Labs due to a rare GI condition https://www.historyofvaccines.org/index.php/content/articles/vaccine-side-effects-and-adverse-events.

All of which is to say that the original question remains unanswered: What should done in controlling highly contagious infectious disease if people decline the vaccine? And in addressing this question is it sensible to distinguish medically recommended vaccines (Diphtheria, measles) which can travel through a population without intimate contact, versus those vaccines recommended in practice (HPV), which can be abated through behaviour modification?

Harvey Berman May 30, 2020 at 1:27 PM

I would mandate vaccination for children in close contact (schools and playgrounds, etc) and would exclude religious exemptions, particularly because there have been Court of Appeals cases in NYS requiring justices to define legitimate versus fly-by-night religions.

But even here I have a slippery slope concern. If a vaccine can be mandated, how far can the mandate go, or at which is there a clear boundary? Can the government mandate drug treatment for certain conditions other than infectious disease? Mental illness? And what classifies as a mental illness? Sadness? Anxiety? Paranoia? Disseminating "disinformation" about government?

David H May 30, 2020 at 11:41 PM

Harvey

Do you mean all schools and all parks, or just public ones? Would you insist that kids in privates schools and renting private fields and recreation centers must also be vaccinated even if their fellow private school student and playmates are from anti-vaxxer families? Is your view that anti-vaxxer parents have no right to let their kids go without a vaccine if they are going to any school or any recreation area? Does it matter to your mandatory vaccination plan that excludes religious exemptions whether the vaccine was made by using the parts of dead people who were unjustly killed and didn't consent to having their parts taken without their consent? Some pro-lifers may have that view about vaccines taken from aborted fetuses. Now Chris Tollefsen wrote that this is not cooperation with wrongdoing since it happened long ago and the fetus wasn't aborted for purpose of acquiring vaccine but those who took the remains may be seen as endorsing the abortion. I do understand the unease as I would feel it if Rose killed Steve in order to acquire an organ to save my life. I would be uncomfortable taking that organ Even if Rose killed Steve for some other reason, I would feel uneasy taking one of his organs, especially is Steve didn't agree to be a donor. (Lets pretend I am more noble and courageous than you know me to really be. If the lack of realism is getting in the way of taking the example seriously, switch Rose with Annie Reed and self centered me with virtuous Phil.) If I (or Phil) refused because Steve didn't consent to be a donor, you would probably respect my (Phil's) decision. Perhaps you should also have some sympathy for pro-lifers who don't want a vaccine cultured in tissues that a fetus obviously didn't donate and their proxy who aborted them wasn't a legitimate proxy. Now, I (Phil) am not a threat to anyone without Steve's organ, so that is a major difference with anti-vaxxers. And the using of an embryonic old cell line to make a vaccine doesn't mean any other embryos need to be killed. But what if taking the vaccine made more medical use of fetal parts in the future more likely? (See my earlier post that was ignored so I took the opportunity to hijack this thread after your post). So there is complicity with future abortions at odds with the danger of spreading a virus. I would choose to take the vaccine but i might respect the conscience of those who felt the scales tipping in the other direction.