the Siracusa Principles and compulsory immunization

For debaters creating a rights-based Negative for the immunization resolution, the UN's human rights jurisprudence is worth a serious look. In their study titled "Detention and the Evolving Threat of Tuberculosis: Evidence, Ethics, and Law," found in The Journal of Law, Medicine & Ethics, 2007, Coker et al. note that the Siracusa Principles of the UN's Commission on Human Rights, published in 1984, offer a criterion for determining whether individual rights can be restricted in a public health emergency.

Summing up the Principles, the authors write,

The first of the principles is the notion of whether any proposed restriction on liberty is a legitimate objective of general concern... Is the restriction provided for and carried out in accordance with the law? Many democratic countries have legal structures in which coercive public health interventions are sanctioned.... A second principle questions whether available alternatives that are less intrusive and restrictive have been tried.... Another principle addresses the arbitrary, unreasonable or discriminatory manner in which a sanction might be imposed.

When we look to the Principles themselves, we can see specific language regarding public health as a justification for limiting individual rights:

Public health may be invoked as a ground for limiting certain rights in order to allow a State to take measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.

The question is, which "certain rights?" Or, more to the point, which rights cannot be infringed--or, in legal terms, are "nonderogable?"

No State party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant's guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude; the right not to be imprisoned for contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation; the right to recognition as a person before the law; and freedom of thought, conscience and religion.These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation.

The rights concerned are detailed in the International Covenant on Civil and Political Rights. And note that last sentence, which is about as strong a statement in favor of the Neg as you are likely to see in international law.

on the dubious 98.5% statistic

At a tournament this weekend, judging LD rounds on the immunization resolution, I heard one number over and over and over again: 98.5%.

A number of Negative cases argued that volunteerism is sufficient to reach herd immunity, even at high thresholds. Why? Because, in a "TV Washington survey," "98.5 percent of people said they were willing to be / have their children vaccinated."

Remarkably, out of the 6-7 times I heard this dubious statistic mentioned, at all three levels of LD, only one Affirmative challenged it: the eventual Novice champion.

Here's what I wanted Affs to do in CX.

Aff: Let's talk about that 98.5% statistic. What's the source?
Neg: TV Washington.
Aff: And how was the question worded, exactly?
Neg: Uh... I don't know.
Aff: The 98.5%... what sort of people were surveyed? Parents? College students? Middle schoolers? Hard-core gamers?
Neg: Uh... I don't know.
Aff: And what about the CDC's report that only 76% of American infants currently receive the full recommended series of life-saving vaccinations?
Neg: Uh...
Aff: That's what I thought.

As the old saying goes, "The spirit is willing, but the flesh sometimes recoils at the thought of being jabbed by a needle bearing a vaccine." Actions always speak louder than surveys.

Even if 98.5% of people really are willing to vaccinate their children, a substantial portion don't. Some ultimately refuse, some can't find the time, some forget. And some can't afford it:

Coverage for most vaccines remained lower for children living below poverty than children living at or above poverty.

Regardless of the reasons, actual vaccination rates don't reach 98.5%; most are in the 90s, but the DTaP rate comes in at 84.6%. (The overall rate is so low because different individuals miss out on different vaccinations.) Which leads the CDC to argue:

Sustaining high coverage levels and finding effective methods of reducing disparities across states/local areas and income groups remains a priority to fully protect children and limit the incidence of vaccine-preventable diseases in the United States.

And about those 90%+ coverage rates: the American experience, if not outright compulsory, is hardly purely voluntary. Parents know that their children can't attend public school without the proper vaccinations and boosters. If they forgo private school or homeschooling and take an exemption--which requires filling out government paperwork--their child can be forced to stay home in the event of an outbreak. (Some states, like Washington, are working to make this process more stringent, requiring philosophically-based objectors to have a conversation with a health care practitioner to be informed of the risks of refusing immunization.)

In fact, as Donya Khalili and Arthur Kaplan write in "Off the Grid: Vaccinations Among Homeschooled Children," found in The Journal of Law, Medicine & Ethics, Fall 2007:

In states where immunization is obligatory officially but unmonitored, vaccinations could be required through enforcing child neglect, delinquency, and child labor statutes, as suggested by the American Academy of Pediatrics Committee on Bioethics. While health care professionals do not advocate its usage outside of emergency situations, they can contact state child protective services agencies if concerned about medical neglect.

So let's stop claiming that volunteerism works by relying on an obviously dubious statistic and a blithely simplistic view of American vaccination policy.

LD weekend open thread

My squad had a practice tournament this weekend: 4 rounds of LD, 3 of PuFo, and an obligatory round of Impromptu. It was fun, but I spent the whole time running Tab, so I didn't get my usual view from the ground of the latest and greatest/worst in LD arguments.

No matter: that's what you, the reader, are for, right? Regarding the immunization resolution, what worked for you this weekend? What didn't? What stumped you? What would you like help with? The comments are yours. Fire away....

approaches for the affirmative for the immunization resolution

Regarding the November / December LD immunization resolution, a reader writes,

I'm having some trouble thinking of argumentation lines for the affirmative, insofar as a minority refusing a vaccine shouldn't affect the majority, because the majority has been vaccinated and is (of course, to a limited extent) immune. This is frustrating every brainstorm I have on affirmative argumentation lines. Some ideas?

Let me see if I can help you out of this self-imposed jam.

First, the "to a limited extent" is important. Vaccines don't provide 100% immunity. For some unlucky recipients, they provide no immunity at all; for others (and this number is most likely much larger), they merely reduce the severity of symptoms. So unimmunized persons are a danger even to the immunized.

Second, unimmunized persons are a danger to those who, for health reasons, simply cannot be immunized. (Of course, this also presents a dilemma for the affirmative; does "compulsory" allow any exceptions?)

Third, a minority refusing a vaccine can influence others to avoid the vaccine, decreasing "herd immunity" (which often requires a high threshold--90% or more). That's why, in recent years, outbreaks of dangerous contagious diseases have increased in areas where they were nearly a non-factor. Polio. Diphtheria. Whooping cough. All over the world, missed vaccinations are putting lives at risk.

Fourth, the risk of bioterrorism or a pandemic that might justify quarantine would probably also justify compulsory immunization in the interest of national security.

Fifth, children who would otherwise receive safe vaccinations risk dying due to their parents' unnecessary or even irrational concern.

Sixth, people who refuse vaccination are a danger to themselves; in a paternalistic political philosophy, this is grounds for intervention.

Seventh, unimmunized persons who lack insurance are a drain on public coffers.

Eighth... well, that's all I've got in ten minutes.

Readers: other ideas?

the expanding waistline of public health law

Another in a series of posts covering the Nov/Dec immunization resolution.

Public health law seems to want to gobble up more and more legal categories, if Mark Hall, a law professor at Wake Forest, is correct. In an article titled "The scope and limits of public health law," found in the Summer 2003 edition of Perspectives in Biology and Medicine,, Hall describes, through anecdote and argument, how public health law is perpetually expanding in influence.

First, Hall distinguishes health care law from public health law, and what makes the latter inherently power-hungry.

Public health law is about enforcing government efforts to promote health. It starts with the assumption that public authority is plenary* and sets restraints on this authority only it if invades fundamental interests or is demonstrably unbalanced or excessive. Under public health law, the presumptions are all in favor of intervention, whereas under health care law, the presumptions are all in favor of privacy. Public health law is not troubled by making vaccinations mandatory, despite possible harm from side effects that may greatly outweigh the benefits of vaccination to any one individual (due to an individual's ability to free ride on the "herd immunity" of the community), nor is public health law troubled by requiring that more potent and riskier forms of a vaccine be used, even though the enhanced benefits accrue to people other than those who take on the risk.

*Absolute, unqualified.

This is the obvious first prong of a potential Neg strategy: pointing out that "public health concerns" are coldly utilitarian, and woe betide the unfortunate soul who is forced to take one for the team.

Of course, the Aff will argue that not only are the rewards worth the risks, but that the very nature of the problem demands compulsion. Hall again:

The classic subjects of public health law are communicable diseases, personal hygiene, sanitary water and sewer systems, safe food, and injury prevention. These disparate situations all involve significant collective action problems, meaning that individuals acting in their own self-interest, even if fully informed and rational, will not effectively address the problem because they do not internalize some of the major costs or benefits of action or non-action, or for other reasons a centralized response is much more cost-effective.... Identifying and eliminating the source of contagion for a communicable disease requires more effort and cost than any one individual or small group is likely to undertake. A public agency is necessary to garner the resources needed for collective action and to wield the authority for coercive restrictions on liberty or property.

But the Negative isn't done yet; the second prong of the argument regards the larger risk of allowing public health advocates ever-increasing power, which has

...a pervasive effect on public health officials' sense of what they are entitled to do and of the tools that are available to address a public health problem. The uncompromising authoritarian and utilitarian public health perspective... is intensely ends-oriented, which tends to ingrain the following habit of thought: once having identified a causal connection to a widespread health problem, action is necessary to eradicate the cause and eliminate the problem at its source, and it falls within the authority of public health or other government officials to take the necessary actions. The necessary actions are those that produce the desired results. Public health officials may start with less intrusive, more innocuous measures, such as information, education, or taxation, but if these fail, then the case is even stronger for pursuing a panoply of more aggressive and coercive strategies, including mandates and bans, closures and seizures, quarantine, and criminal sanctions. The metaphors of public health strategy are war-like. Its rhetoric is to attack, conquer, and eradicate, rather than to exercise prudence, balance, and restraint.

As the saying goes, "desperate times demand desperate measures." The problem is the tendency to see desperation in any risk, and to trample over individual needs, desires, or rights in the process. As problems like crime or poverty are cast in terms of public health, we risk going beyond the Nanny State to a form of medicalized tyranny.

vaccines... for the children

Professor of epidemiology Tara Smith explains why she'll be getting her children vaccinated this year.

Taking a brief hiatus from my hiatus to discuss a question I've been asked a number of times in recent weeks by friends and family: what about flu shots? Are you getting one for yourself? Your kids? The answer is yes to both, with more explanation after the jump.

And the post-jump reasons are worth investigating.

Meanwhile, Stephanie Tatel asks, have you considered those with limited immunity?

Ordinarily I wouldn't question others' parenting choices. But the problem is literally one of live or don't live. While that parent chose not to vaccinate her child for what she likely considers well-founded reasons, she is putting other children at risk. In this instance, the child at risk was my son. He has leukemia.

What does any of this have to do with vaccinations? While the purpose of chemotherapy is to kill the cancer, it also kills the good cells—most notably the infection-fighting white blood cells. That means my son has limited ability to fight off anything. A single unimmunized child in an ordinary child care setting is the equivalent of a toddler time bomb to him.

For students of the November/December LD resolution--or for any parent of a youngster--something to think about.

the tensions inherent in public health law

The November/December resolution throws light on a growing area of legal interest: public health. In "Mapping the Scope and Opportunities for Public Health Law in Liberal Democracies," found in The Journal of Law, Medicine, and Ethics, Winter 2007, Roger Magnusson, a law professor at the University of Sydney, notes (among other things) the tensions in contemporary public health law.

The first, as always, is the tension between proper government action and individual rights:

Lawrence Gostin points out that the protection of the public's health is necessarily a public function that should also be regarded as a duty of government. Discharge of that duty carries "intrinsic and instrumental value for individuals, communities, and entire nations." At the same time, public health law is that body of law which - in a liberal democracy - keeps the state on a short leash, and there is considerable resistance to lengthening it. At the same time, in one of many contradictions in American law, Nan Hunter argues that this is precisely what is occurring as public health and national security have moved closer together to meet the threat of bioterrorism and pandemic influenza.

The "national security" angle is one that affirmatives should explore. The resolution doesn't specify who would be receiving compulsory immunizations; the Negative, presumably, would have to defend the right of medical workers and soldiers (among others) to refuse immunization, even in a crisis.

However, an important Negative consideration is the tension between wider and narrower conceptions of just what constitutes "public health concerns"--and the propensity for the debate to expand into the international arena.

The health and human rights movement provides a further example of public health law expanding to embrace, in this case, global human rights norms and laws, exploring the potential for the promotion or neglect of global norms to enhance or harm the health of populations. The usual criticisms of these approaches is that they turn "life, the universe and everything" into a subdivision of health. In Mark Rothstein's words, "just because war, crime, hunger, poverty, illiteracy, homelessness and human rights abuses interfere with the health of individuals and population does not mean that eliminating these conditions is part of the mission of public health."

The effect of such a broad definition is not only to increase government overreach, but to insulate the government from criticism, since "public health" is a powerful way to frame policies that might otherwise be seen as the normal risks of everyday life, accepted in a free society. Furthermore, globalization puts the drafting and enacting of such policies out of the reach of citizens within any given nation. Thus, from a social contract perspective, a widening "public health" definition is doubly a menace to individual rights and governmental legitimacy.

today's vaccination links

The Nov/Dec LD resolution, "Resolved: Public health concerns justify compulsory immunization," couldn't be more topical.

You're all over the CDC's website, right?

Swine flu vaccines are ready. But not everybody wants one--for themselves, or for their kids.

How distrust of swine flu vaccine unites right and left.

It doesn't help when journalists get the facts very, very wrong.

Something to think about: let's say smoking is a public health concern. Does that justify compulsory anti-smoking vaccinations?

value / criterion pairs for the immunization resolution

LD casewriters studying the November/December compulsory immunization resolution might consider the following value and criterion pairs. (Have your own ideas? Suggest them in the comments!)

See also: my guide to some useful philosophers, plus a way to consider the criterion in LD debate.

A work in progress.

V: Societal Welfare
C: Act or Rule Utilitarianism
As I've mentioned elsewhere, many affirmative cases will use either explicit or implicit utilitarian reasoning. It's easy to figure out why: compulsory immunization, from the state's perspective, violates autonomy in order to keep the herd immune, and reduce suffering and death. Of course, some may argue that Mill's nonpaternalistic utilitarian scheme, via the harm principle, supports the negative, but that's what makes it fun.

Note: a potentially fruitful line of argument might be an analogy based on the infamous Trolley Problem. Also, see here for a deeper look at utilitarianism as a moral criterion.


V: Governmental Legitimacy
C: Social Contract
Because the resolution concerns compulsory immunization, making the agent of action the State, social contract theory comes into play. Change your value to "societal welfare," and you can make arguments based on contractarian reasoning as well. (My initial thought is that Hobbes or Rousseau are your best bets here.)


V: Freedom
C: Reducing Biopower
Foucault, anyone?


V: Autonomy
C: Deliberation
Without autonomy, humans are slaves, robots, or worse. Autonomy is the core of human freedom, rights, and responsibilities. Compulsion is a direct affront to autonomy; deliberation (especially deliberative democracy) uses dialogue and education to create change. (As you can probably see, this is a Negative approach.) Potential philosophers: Arendt or Habermas.


V: Autonomy or Humanity
C: Kant's Categorical Imperative
The Neg might argue that compelling someone to take a (potentially risky) vaccine in order to protect the herd is a classic case of using someone as a mere means to an end. If so, Kant says no.


V: Life
C: Utilitarianism
A fairly straightforward setup.


V: Justice
C: Rawls' "Original Position" or "Veil of Ignorance"
Compulsion is always a matter of justice. But with competing rights claims--and competing visions of the right--how can societies agree on what justice means? John Rawls' "veil of ignorance" offers an interesting form of a moral criterion, especially given Rawls' biography. Does compulsory immunization in the service of public health meet this standard?


V: Societal Welfare or Life
C: Negative Utility


V:
C:

definitions in the compulsory immunization resolution

The November / December NFL Lincoln-Douglas debate resolution...

Resolved: Public health concerns justify compulsory immunization.

...offers some interesting definitional possibilities.

(Unless otherwise noted, definitions from Dictionary.com, which uses the Random House Unabridged Dictionary.)

Public health
"Health services to improve and protect community health, esp. sanitation, immunization, and preventive medicine."
Note the largely preventive nature of public health. Immunization is meant to prevent unnecessary sickness, suffering, and death. Note also that the word "public" is important. The agent of action in this resolution is the government, which brings social contract reasoning into play.

Concerns
"something that relates or pertains to a person; business; affair"
"a matter that engages a person's attention, interest, or care, or that affects a person's welfare or happiness"
This is a particularly prickly word for the affirmative. Although "concern" carries a connotation of anxiety or worry, negatives might argue that the term is vague, and (as a general principle) doesn't rise to the level, say, of an emergency. Affirmatives would do well to combine the above definition of "public health" with the first definition of "concern"--arguing that the very business of "public health" is that of prevention through, among other things, immunization. (Also, they should point out that governments rarely compel trivial immunizations, trying to block out negative arguments about wholesale rights-trampling.

Justify
The two major senses of justification may lead to completely different kinds of arguments. Those (especially on the negative) defining the argument in terms of rights will use the first sense: "to show (an act, claim, statement, etc.) to be just or right."

Those advocating a utilitarian approach might use the second definition: "to defend or uphold as warranted or well-grounded." This is much, much broader, and works with a wide array of criteria, including cost-benefit analyses.

Compulsory immunization
The resolution offers no bright line for how immunizations might be compelled: through fines or taxes? Through force? Affirmatives will want to look at the history of compulsory immunization for examples of how governments usually go about it.

Note: a phrase that isn't found in the resolution, but is critical for both sides to understand, is "herd immunity"--the idea that when enough members of a community are resistant to infection, it will effectively disappear in a population, protecting even those members (like conscientious objectors) who refuse to be vaccinated. The threshold is usually above 80%. The aff will argue that, historically, reaching the threshold has required government meddling, if not outright compulsion.

Resolved: Public health concerns justify compulsory immunization .

Update: The November/December Lincoln-Douglas debate resolution has been released:

Resolved: Public health concerns justify compulsory immunization.

Scientists and public health officials get frustrated, even angry, by vaccine dissenters, a small, but increasingly vocal minority. After all, the argument runs, vaccinations have undoubtedly saved millions of lives since their inception. The risks are minimal; the benefits massive. Besides, without compulsion--without the greatest possible protection of the population--those benefits aren't seen.

So, from an LD perspective, how might we approach the resolution?

Affirmatives will probably use broad-based utilitarian reasoning. If, on balance, compulsory vaccination saves more lives than it puts at risk, then the decision, societally speaking, is a no-brainer. Assemble a few statistics and expert quotes, value "life" and set your criterion to utility, and let logic do the work.

Negatives could respond by attacking the stats, or taking a more philosophical approach, citing the John Stuart Mill adage that "Over himself, over his own body and mind, the individual is sovereign." This is the classic argument against inoculation; go back to the 1907 anti-immunization book Vaccination by John Pitcairn to see an example.

The rejoinder to this sort of argument is to quote Mill against Mill, as the Washington State Board of Health does in this vaccination briefing [pdf].

John Stuart Mill in On Liberty wrote that “The only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.” This thesis has become known as the harm principle. The Immunization Advisory Committee endorsed the harm principle and interpreted it to mean that vaccine mandates are justifiable when without them:
• An individual’s decision could place others health in jeopardy
• The state’s economic interests could be threatened by the costs of care for vaccine preventable illness, related disability or death and for the cost of managing vaccine preventable disease outbreaks
• The state’s duty of educating children could be compromised

The crucial thing about communicable disease is that it requires no agency on the part of its victims. Innocents are vectors, too.

Since the recipients of vaccinations are most often children, the persons being harmed--or at least risking harm--aren't legally able to accept or refuse inoculation on their own. As the briefing shows, this adds an "it takes a village to raise a (healthy) child" dimension to the debate.

Returning to Pitcairn, at the close of his book, a diatribe against "man-made science" interfering with "God's handiwork" points to another classic argument: that vaccination tampers in God's domain. Updating this logic for the evolutionary era, some anti-vaccinationists will argue that inoculations destroy natural immunities or upset nature's balance. (Want to really go crazy here? Open to a page from the policy playbook, and argue that vaccination is responsible for overpopulation and its concomitant harms. Just don't be surprised if your judge finds you scary.)

Lastly, the Board's briefing cited above refers to allowable exemptions for religious reasons, another argument both sides must prepare for.

For a backgrounder, Wikipedia's page on anti-vaccination arguments is a great place to start. I also like Douglas Diekema's accessible intro to the ethical debate [pdf].

Added: An example of the practical effects of the contemporary debate on vaccination.

Added 10/1: For an accessible introduction to the vaccination controversy from a pediatrician's perspective, I highly recommend Jamie Loehr's The Vaccine Answer Book. It's clearly organized, scientifically minded, and humane.

Added 10/4: I survey some critical definitions.

Added 10/11: An initial list of value/criterion pairs.

Added 10/12: Some thought-provoking links, and a critical question. What if they had a vaccine for smoking cessation? Would public health concerns--which in the modern day certainly include smoking--justify compulsory anti-smoking vaccination?

Added 10/16: How far does the logic of immunization stretch? One blogger considers Gardasil as a paradigm for the question.

And read this NewScientist article on the potential for a "universal flu vaccine."

Added 10/18: An article discussing the tensions in public health law, with implications for the resolution.

Added 10/21: Two parents talk about why they're in favor of vaccination. Hint: it's for the children.

Added 10/22: Why public health law threatens us with "medicalized tyranny."

Added 10/25: Some lines of argument for the affirmative.

Added 11/14: An open thread: what good/bad arguments did you face this weekend?

Added 11/22: In which I tackle the dubious 98.5% statistic.

Added 11/24: The Siracusa Principles as a criterion for the Neg.

Added 12/7: The future brings us... personalized vaccines?

More links and analysis to follow. Add your questions and thoughts in the comments. (This post was updated and edited from a preview written during the summer.)