Vaccines, Autonomy, and Mandates: A Libertarian Analysis

by | Dec 30, 2021

Vaccines, Autonomy, and Mandates: A Libertarian Analysis

by | Dec 30, 2021

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Prefatory Note

Given the subject matter discussed below, I believe it prudent to state at the outset that I am not at all opposed to vaccinations themselves: indeed, I have received a COVID-19 vaccine, as well as all other normal-course vaccinations recommended for someone my age. Yet there are, it seems to me, interesting, difficult questions surrounding the state’s role in promoting or mandating vaccines. The goal here is to start a conversation not about the effectiveness of vaccines, but about the individual’s sphere of autonomy and what kinds of medical decisions are within it, and thus beyond the reach of the state.

What assumptions or conditions, if any, would make it appropriate for the state to compel vaccination Libertarians generally support strong protections for the individual’s bodily autonomy, and thus many libertarians oppose mandatory vaccination laws categorically. Of course, opposition to compulsory vaccination doesn’t mean opposition to vaccines themselves, just as opposition to seatbelt laws doesn’t mean opposition to the extremely prudent practice of wearing seatbelts while driving. Nor is such opposition grounded in paranoia or misunderstandings of scientific fact. When it comes to state actions taken in the interest of public health, libertarians need not peddle conspiracy theories: history tells us that shadowy plots are not necessary for egregious rights violations to occur.

COVID-19 has raised thorny questions for libertarians. Certainly even principled libertarians—perhaps especially principled libertarians—should endorse social rules that prevent people from intentionally or recklessly spreading dangerous pathogens. That we should determine effective ways to rein in the negative externalities associated with COVID-19 and similar diseases goes without saying. But where would we draw the line? That is, how deadly or contagious would a disease have to be to justify so egregious an insult to personal freedom and bodily autonomy? Any such determination would be arbitrary by definition. Worse still, as we have learned anew during the COVID-19 pandemic, it is, as a practical matter, extremely difficult to draw reliable conclusions about a disease’s contagiousness or deadliness given the problems with the available data (namely, the huge gaps that would need to be filled to reach even half-decent determinations). Particularly given the wide and unpredictable range of COVID-19 symptom expression, a characteristic that sets it apart from many other infectious diseases, experts don’t have a good predictive model of the dangers associated with the virus. Thus, even supposing that we could come up with a sensible rule, we would be left with the practically insurmountable challenge of accurately measuring how deadly or contagious a real-life disease is. At the very least, libertarians should want to reserve the most autonomy-violating policies for facts in which we can both (1) judge the risks posed by the disease with a reasonable level of certainty, and (2) know—again with a reasonable level of certainty—that the chosen policy means (here compulsory vaccination) is in fact necessary to accomplish the goal as defined. Governments are poorly situated to make sound, responsible choices on these questions, their judgment impaired by knowledge and incentive problems discussed in greater detail elsewhere. Public health experts acknowledge that the primary purpose of vaccination is to protect the person vaccinated, that other positive effects, such as reducing the spread of the virus, are far more speculative.1 As the CDC observes, “Experts continue to conduct studies to learn more about how COVID-19 vaccination may reduce spread of the virus that causes COVID-19.” Libertarians should therefore demand of the government a much clearer causal nexus before we accept a policy like compulsory vaccination.

Early History of Compulsory Vaccination Laws

The first compulsory vaccination laws emerged in the mid-19th century, as attempts to confront the widespread death and disability wrought by smallpox. Vaccination at that time looked rather different from the hypodermic needle injections that go by the name today:

Victorian public vaccinators used a lancet (a surgical instrument) to cut lines into the flesh in a scored pattern. This was usually done in at least four different places on the arm. Vaccine matter, also called lymph, would then be smeared into the cuts.2 Nadja Durbach, Bodily Matters: The Anti-Vaccination Movement in England, 1853–1907 (Duke University Press 2005), page 3.

Yet anti-vaccinators’ arguments never hinged on the pain or scarring caused by the procedure. Rather their arguments appealed to something deeper, to the dignity of individuals and their right to make medical decisions for themselves and their children. In her book Bodily Matters: The Anti-Vaccination Movement in England, 1853–1907, Nadja Durbach tells the story of the “Seven Men of Keighley,” a group of Poor Law Guardians who followed their consciences and refused to give force to the vaccination laws, leading to their imprisonment in 1876. The issue of compelled vaccination became a violently controversial one in nineteenth century England, animating a vocal grassroots movement. With vaccination officers actively patrolling English towns, looking for people on whom to force vaccines, families developed and implemented all manner of avoidance tactics, including hiding from officers, quickly moving after the birth of a new child, and open disobedience. Officers were permitted to enter homes without permission and were known to forcibly vaccinate children who had been left unattended. “Working-class noncompliers were routinely seized from their houses and dragged to jail.”3Id. at page 74.

We must be cautious in discussing “the anti-vaccination movement,”4Even to use the phrase “anti-vaccination movement” is potentially confusing and equivocal, as the literature at times uses it to describe both (1) those who oppose vaccination in itself, and (2) those who oppose only state-mandated, compulsory vaccination. as if this group has ever been monolithic in its character or substantive views. Many among the historical and contemporary opponents of compulsory vaccination have had no objection to vaccines in principle—indeed many have vaccinated themselves and their children quite voluntarily. Theirs was (and is) a principled opposition to the state’s forcing itself inside people’s bodies, to the chilling idea that Scientific Progress gives the state dominion over your very insides. Most of the fiercest opponents of England’s Vaccination Acts argued that if any compulsory terms in the Acts were removed, they could make their peace with them. As we shall see, many who have been described as anti-vaccinators in fact aimed at “free trade in vaccination,” whereby those who want it can buy it, and those who don’t are left in peace.5Id. at page 70. They saw theirs as a crusade against “medical monopoly” and “class laws,” regarded as giving a windfall to aristocratic doctors and replacing what had been a much more competitive marketplace in medicine.6Id. It is likewise important to note that the antiauthoritarian movement that grew up as a response to the Compulsory Vaccination Acts was nowise conservative, drawing widespread support among workers and “those active in other radical movements.” As Peter Ryley notes, workers of the period were attracted to the rather libertarian idea that there ought to be “a free market in medical care,” with rivals to “professional medicine, seen as ‘a tyrannical system of state-sanctioned interference with the lives and health of an oppressed people.’”7Id. at page 28. Libertarians of the period appreciated the distinction between questions of medical science and personal, individual value judgments, opposing compulsory vaccination as a clear violation of the individual’s bodily autonomy.

Founded in England in 1871, the Personal Rights Association, particularly in the person of Joseph Hiam Levy, made the fight against compulsory vaccination one of its chief goals, “advocat[ing] entire freedom of choice in the matter of Vaccination and all other medical prescriptions and practices.” Levy was something of a bleeding heart, with a special sensitivity to the plight of the weak and the helpless. He was, for example, a radical (particularly for the age in which he lived) supporter of animal rights, with the anti-vivisection issue being among the Personal Rights Association’s original reasons for being. He furthermore favored serious reforms to existing “lunacy laws,” vindicating the rights of a vulnerable, marginal group at a time when those with mental health issues were treated with shameful neglect and cruelty. He was also a dedicated feminist and a prominent opponent of England’s bastardy laws, working in the Legitimation League “to create machinery for acknowledging offspring born out of wedlock, and to secure for them equal rights with legitimate children.” Levy and other proto-libertarian opponents of compulsory vaccination saw all of these issues as necessarily and obviously connected, implicating the fundamental dignity of every individual. And indeed England’s vaccination laws fit into a larger project of eugenics and social engineering, “closely related to [a number of] other legislative efforts to contain dangerous (and particularly working-class) bodies in the name of public health.”8Id. at page 7.

The Eugenics Movement and Mandatory Vaccination Laws in the United States

In the United States, too, the history of compulsory vaccination is connected to the eugenics movement, with Jacobson v. Massachusetts (1905) being cited in the more widely known and reviled Buck v. Bell, when the Supreme Court upheld the state of Virginia’s forcible sterilization of a supposedly feeble-minded woman. At issue in Jacobson was a mandatory vaccine ordinance adopted by the city of Cambridge under the provisions of a Massachusetts statute. Henning Jacobson was a pastor in Cambridge who refused vaccination and, after a trial, was fined 5 dollars (or about 150 of today’s dollars). In a 7-2 decision, the Supreme Court upheld the Massachusetts law, reasoning that to do otherwise would be to substitute its judgment for that of the legislature:

Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the State, to protect the people at large was arbitrary and not justified by the necessities of the case.

The Court thus refused to say “that compulsory vaccination could not, in any conceivable case, be legally enforced,” that this was a line a state could never cross in its use of the police power. Justice John Marshall Harlan’s opinion states clearly that to allow an individual to exempt himself would be tantamount to allowing “a minority of persons…the power thus to dominate the majority.”

The Court seems to establish rather definitively that a state can force vaccination upon its citizens—and as the Pacific Legal Foundation’s Elizabeth Slattery observes, sticking a needle in your arm is “one of the most invasive things government can do.” Yet Slattery and PLF’s Anastasia Boden, both practicing constitutional lawyers, are rather more sanguine about what Jacobson means. They suggest that the outcome in Jacobson is confined to its facts, that “the law in Jacobson wasn’t actually mandatory at all, at least in the sense that nobody could be held down and forced to get a vaccine.” Reverend Jacobson was able to get out of being vaccinated by paying the $5 fine.

It is difficult to know how the current Supreme Court would treat a similar modern law, or how Jacobson would be interpreted, but we needn’t be in a hurry to find out. School vaccination requirements may provide a clue as to how a state or local law compelling vaccination might look today. All 50 states make vaccination a prerequisite to attendance at a government school, with 45 of those (and the District of Columbia) carving out an exemption for those who object to vaccination on religious grounds; 15 of these 45 states “allow philosophical exemptions for children whose parents object to immunizations because of personal, moral or other beliefs.” Libertarians can hope that the broader philosophical exemption will someday be available to everyone.

The plaintiff in the 1927 case Buck v. Bell, Carrie Buck, was sterilized against her will at 18 years of age after it was determined that she was “feeble-minded.” It was in his opinion for the 8-1 majority that Justice Oliver Wendell Holmes, Jr., wrote, “Three generations of imbeciles are enough.” Directly citing Jacobson, Holmes reasoned, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” Though it is uniformly condemned today, the Court’s decision in Buck v. Bell highlights one danger in giving the state’s scientific claims too much credence. The Court deferred to bunk science and absurd claims that even an infant can be easily determined to be “feeble minded” (by flashing a gold coin in the baby’s face and looking for the eye movement). This is an incredible amount of deference to government power—and courts will be no help if the government acts in completely arbitrary ways. Buck seemed to show that there is no real limiting principle on the state’s access to your body if it will purportedly improve “public health.”

Did Jacobson inexorably lead to Buck? Justice Holmes seemed to think it so, but sterilizing someone is, on its face, quite different from fining someone for not taking a vaccine. Unlike Carrie Buck undergoing non-voluntary surgery, Reverend Jacobson was not held down and forced to have the needle shoved in his arm. And only 15 years after Buck, the Court unanimously overturned an Oklahoma law forcing inmates to be sterilized, showing that, for at least those justices, blind deference to “science” was not always the answer.

Now, we tend to think that we are very different, and better—that contemporary society couldn’t fall into such a warped way of thinking. But consider that eight of the Court’s nine justices got Buck v. Bell wrong, and that this group included Louis Brandeis. The majority really did believe that Virginia’s invocation of “public health” was sufficient to justify the extreme rights violation of forced sterilization. After all, Virginia had taken such care to ensure the soundness of its sterilization determinations and the protection of the rights of the patient.

Human beings haven’t changed as much as we think since the Court upheld forced sterilization in 1927. Anyone who asks for a good reason why the government is allowed to force you into a medical procedure should not be treated as a science-denying quack. The government can and has gone to scary places in the name of “science.”

The presumption in a free society is that individuals can control their bodies and make the decisions about what goes into them, with emergent private behaviors establishing their own requirements on vaccination. Even the Jacobson court understood that to an extent. As Buck shows, a government health-and-safety power so far-reaching that it penetrates the individual’s body is a potential danger far more serious than any virus. As the work of Thomas C. Leonard has shown, “sterilization of the unfit,” and eugenics more generally, was an important, even central, component of the reform philosophy of the Progressive Era. Leonard notes that “Progressive Era eugenic ideas were influential in nearly all non-Catholic western countries and in many others besides.” The lone dissenter in Buck v. Bell, Justice Pierce Butler, was the only Catholic on the Court at the time. Justice Holmes and other members of the supposedly thoughtful, learned classes of the day believed they had the enlightened view, the compassionate one. Justice Holmes writes, “It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” This is the kind of frightening certainty produced when one believes that science is on the side of a given government policy.

Leave aside, for the moment, the larger normative question of whether there are any conditions under which the state should have the power to compel vaccination or impose draconian restrictions on those who aren’t vaccinated. Let us assume that there may be such conditions and instead ask: what would a government have to show to establish the causal nexus? That is, to show that such policies are in fact necessary? The mere assertion of a causal link shouldn’t satisfy free people; rather, the burden should be on governments to demonstrate with some modicum of certainty not only that their impositions are legitimate remedies for an actual problem, but that the government used the least restrictive means to accomplish its end. Under the level of deference a compulsory vaccination law would receive under Jacobson, the Constitution is effectively a nullity, held up for show, symbolic of American history, but little more. It seems all that is necessary under that standard is the mere assertion that the law serves a valid public health goal; no evidence need be offered that there is indeed a problem to be addressed, or that the law in question actually does address the problem if there is one, much less that the law is narrowly tailored. Many current justices reject the very idea of substantive due process, believing that, unless a law attacks a right specifically mentioned in the Constitution, it should receive maximal deference from the courts. Judges, the argument goes, should not impose their policy preferences from the bench or thwart the will of the people.

Conclusion

But what about the will of the individual? What science—more specifically, the existing body of medical knowledge—is capable of showing us is that vaccines work, which has been demonstrated clearly for some time now. Vaccination (and, before it, variolation) was effective and in widespread use before we even had the science to understand why. But vaccination’s record of success is not the question. What science cannot ever determine, precisely because it is not a hard-science question, is that vaccination should be compulsory. This is a normative question about human dignity and bodily autonomy, an inherently philosophical one that bottoms out in our values. Supporters of mandatory vaccination are guilty of an is-ought fallacy, as medical science simply cannot answer this kind of ethical question;9See also this recent article by the Foundation for Economic Education’s Jon Miltimore. historically, when it tries, the results are horrifying, tragic, and essentially evil, as we find in Buck v. Bell and the history of nineteenth century England.

This article was originally featured at David S. D’Amato’s substack The Peaceful Revolutionist and is republished with permission.

About David D'Amato

David S. D’Amato is an attorney and adjunct law professor whose writing has appeared at the Institute of Economic Affairs, the Future of Freedom Foundation, the Centre for Policy Studies, the Ludwig von Mises Institute, Liberty Fund’s Online Library of Law and Liberty, the Foundation for Economic Education, and in major newspapers around the world. D’Amato is on the Board of Policy Advisors for the Heartland Institute and he is the Benjamin Tucker Research Fellow at the Molinari Institute’s Center for a Stateless Society. He earned a JD from New England School of Law and an LLM in Global Law and Technology from Suffolk University Law School.

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