Tuesday, October 05, 2021

Vaccine Mandates

Arthur Caplan has a post arguing for vaccine mandates, commenting on the recent Association of Bioethics Program Directors letter on it. It makes a number of obvious mistakes that unfortunately tend to clog up discussion of the matter and that I think end up being actively harmful to any attempt to deal with the pandemic seriously.

Since Caplan's post is based on the ABPD letter advocating vaccine mandates, I will start there, and note in particular two grave errors in framing.

Eligible persons who refuse to be vaccinated risk infecting themselves, spreading the COVID virus to others, increasing the likelihood that worse virus strains emerge, and perpetuating the need for more invasive public health strategies like lockdowns and limiting travel, which can impinge upon common welfare and liberties.

One of the consistent problems people have had throughout the pandemic is failing to grasp that a pandemic is a highly unpredictable, highly variable population-level phenomenon. The letter throughout errs by blurring the population level and the individual level. It fails to recognize (what is provably true) that persons who accept vaccination also risk infecting themselves and spreading the virus strains to others. Vaccination is one of the most effective health interventions ever invented, but it is not magic shielding. Vaccination makes your body a less hospitable environment for the virus, thus reducing the probability of its replication and transmission; but you still can get sick again, particularly if it mutates a bit (which viruses often do) and you still can spread it. These things depend on a vast number of variables. What vaccination does is reduce the chance of further spread at a particular node (organism) in a controlled way; it does not guarantee anything. At the population level, reducing the chance of further spread at lots of particular nodes has a significant effect, so this is not a small thing at all; but no approach to a pandemic is legitimate if it fails to grasp that the population-level cooperative effect is what actually matters here. In addition, some proportion of those who are not vaccinated will already have had the virus, and thus have already had in an uncontrolled way that which a vaccination gives in a controlled way.

The primary result of this is that the causal chain here is much muddier than the ABPD wants to pretend; it's probabilistic all the way through, and it's probabilistic at the population level, i.e., the harmful effects that are identified are results of what the proportions of the population are, not the result of what this or that individual does.

The second grave error in framing in the letter is here:

Some claim that vaccine mandates are “tyranny" that violates rights to individual liberty and autonomy. However, there is common agreement among both secular and religious ethical worldviews and traditions that preventing risk to others justifies enforcing limits to personal decision-making.

It is noteworthy that the second sentence is obviously false -- there is in fact no common agreement among "secular and religious worldviews and traditions" that limiting personal decision-making is justifiable on the ground of preventing risk to others. Note, for instance, that it says 'risk' not 'harm' and 'preventing' not 'reducing', and also that it does not note any qualifications at all to this; and note that it is explicitly consequentialist in framing despite the fact that many "secular and religious worldviews and traditions" are not consequentialist or are even anti-consequentialist. But what is most noteworthy about this is that it doesn't actually address the objection it purports to address. The objection is that it is outside the authority of the state to enforce vaccine mandates, and that the attempt to impose it would violate rights to individual liberty and autonomy. The "However" doesn't address either rights or liberties at all; it talks vaguely about 'personal decision-making' and not 'personal rights' or 'personal freedoms'. It doesn't establish who in particular is the authority that can enforce these limits in particular, and it doesn't establish that this risk-prevention justifies enforcing this limitation. It doesn't even gesture at these things, despite the fact that, as it explicitly notes, this is the primary issue -- not whether vaccination is good, but who and what would have the authority to mandate it, if anyone, and, if vaccination can be mandated, exactly what the barriers against tyranny would be that would provide protection for rights and liberties. And it also mixes this up with the previous error, in that it frames it as a matter of preventing risk (which we cannot do in a pandemic) rather than reducing risk. Such a double error merely intensifies the objection, because prevention is an all-or-nothing thing -- you've either prevented or you haven't, whereas reduction is a sliding scale. Since reduction of risk is a sliding scale, it is a legitimate question as to how far you can go. If the justification to which you are appealing is 'reducing the risk of swimming pool deaths', there are lots of different ways to do this and some of them will be regarded as reasonable and some as extreme. Should you put out some public service announcements? Should you require basic swimming pool safeguards? Should you ban swimming pools? It's not something that falls out of the justification. It has to be determined on other grounds.

Caplan in his development of this continues the flawed framing. He considers two objections to vaccination mandates. The first is the liberty one, to which he replies:

But this absolutism in the name of liberty makes little sense. Certain dire challenges to human health, flourishing and viability require collective action organized, coordinated and directed by governments. Legislatures and courts have long given the authority to government and its agencies to follow sound scientific and medical advice to minimize the danger posed by grave public health crises. Covid-19 with its 4.5 million deaths, untold numbers of people with disabling complications, psychosocial havoc and burdens on health systems is recognized as a very serious public health emergency. It makes sound ethical sense to permit restrictions on both liberty and personal choice including mandating vaccination for all deemed medically eligible to combat a dangerous worldwide plague.

Note that this, again, does not address the issues at all. What it explicitly argues is that (1) we need collective action "organized, coordinated and directed by governments" and (2) governments have long given themselves authority to minimize the danger posed by grave public health crises. It then tries to conclude from this (3) restrictions on "both liberty and personal choice including mandating vaccination" should be permitted. This is literally a dimwitted argument. The conclusion does not follow from the premises. It is not even made more probable by the premises. (1) and (2) at most establish that government has a public health authority, which literally no one disagrees with. They do not give us any indication of how far this authority extends; they do not give us any indication of the actual justifications that would structure and limit it; they do not give us any indication of what the appropriate standard of 'minimization' would be.  What is far more serious, they do not tell us at all how any of this interacts with "liberty and personal choice". We all know that despite (1) and (2) there are limits to the public health authority in every political regime -- even some pretty unfree ones -- that we know. We all know that (1) and (2) would not justify executions, life imprisonment, or rounding up minorities to improve vaccines. We know that (1) and (2) can't justify every action of government or any other agent acting for public health. So what is the reason that it extends to vaccine mandates? Caplan doesn't give it. If your answer to why you are justified restricting "liberty and personal choice" is 'it's really serious', you don't actually have an answer, and people are naturally going to be suspicious that you don't care about liberty and personal choice at all.

The second objection to which Caplan responds is that vaccine mandates seem inconsistent with the recognized rights of bodily integrity and medical consent. To this Caplan responds:

It is true that the right to accept or reject medical care is a long-standing right in America and other nations. However, this right has as the ABPD statement acknowledges limits and consequences. One may reject vaccination but then be subjected to penalties including fines, loss of employment, loss of benefits, restrictions on travel, restrictions on accessing certain businesses and services and denial of entry to government positions. Rejecting vaccination may also mean that masking or testing requirements must be followed to move about in society. Individuals are free to reject safe and effective prophylactic medical care including vaccines but private and public entities are free to enact penalties in the name of protecting the public’s health including those especially vulnerable to harm from Covid-19.

LOL. It reminds me of the time my Ethics students, trying to propose a right for a class 'declaration of rights', proposed that people should have a right to practice their religion as long as it wasn't against any law. If your response to "This violates people's right to X" is to say, "No, you're free to X, all we are doing is punishing you with 'fines, loss of employment, loss of benefits, restrictions on travel, restrictions on accessing certain businesses and services and denial of entry to government positions' if you attempt to maintain X in this context", you are in fact conceding either that it really does violate the right to X or that you don't think people have a right to X at all. 

This is the fundamental problem with all of this. Improved safety in a pandemic must not be used as a justification for totalitarian exercise of power; you must establish that you are not overstepping your actual, recognized authority; rights and liberties must be respected and you must show that you are respecting them. But Caplan doesn't address any of this. What he argues for is not the justifiability of vaccine mandates but for a totalitarian public health power -- literally, since his answer to both the liberty and the rights objections is explicitly just that governments have the authority to limit and restrict both liberties and rights if they have a medical justification for it. This is not helping; this is an actively harmful contribution to the discussion, because it associates vaccine mandates with vague appeal to government health powers without any regard for the worries of people about where the limits are.

Vaccine mandate discussions are, beyond the usual worries, complicated by three things that I think are not often recognized adequately in purely ethical discussions. The first is that the state of the pandemic, which changes over time and is different from region to region, affects what is reasonable to propose. It makes more sense to propose vaccine mandates in a quarantine lockdown situation, for instance, than in a situation in which vaccination is increasing and you are just looking to vaccinate a late minority who have worries about the vaccine. The second is that your response to this pandemic needs to be looking to the next epidemic, and getting your target result by forcing large numbers of people under threat of punishment is setting yourself up for large-scale failure next time, because people will be much less willing to allow you an inch in the future if you've already shown that you'll take a mile. And the third is that a government or corporation that has built up a lot of trust can get away with asking for more from citizens or employees than one that hasn't, and our government agencies have not actually had a shining year of cultivating trust. Much of the resistance to vaccines in free countries is self-perpetuated; it is perpetuated by government flip-flopping and naked politicizing and broken promises about all that people will have to do; it is perpetuated by heavy-handed overextension of authority, like bringing the force of law against churches or family gatherings; it is perpetuated by government officials and legislators and governors blatantly violating rules that they force on others; and it is perpetuated by a failure to extend the hand of cooperation and compromise and a refusal to take seriously (as Caplan refuses to take seriously) concerns of violations of liberty or rights.