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Libertarianism and Communicable Disease:

Given Texas's conscientious objector exemption, the vaccine seems not to be really mandatory. (I say "seems" because I'm not positive how the exemption, which is on its face very broad, is applied in practice.) But what if it were mandatory? Should we oppose that on broadly libertarian grounds? When I say "we," I'm referring not just to hard-line libertarians (of which I'm not one) but also to those who have general Millian "free to do what I please so long as I don't hurt others" sympathies, even if those sympathies can sometimes be trumped by other concerns.

My tentative sense is that immunizations against communicative diseases are often quite proper, even as a libertarian matter. I say "tentative" because I'm sure others have thought about the subject in much more depth than I have, and perhaps they can prove me mistaken. But let me quickly lay out my thinking.

It is a sad fact of biology that we can spread communicable diseases without any conscious decision on our parts, even without knowing that we are infected. Any time we do this, we are indirectly causing harm to someone else. Say Alan has sex with Betty, who then has sex with Carl, who then has sex with Denise; say Alan is infected with HPV, and each sexual act would (absent immunization) spread HPV; and say Betty isn't immunized against HPV. Betty's failure to get immunized would lead to her unwittingly spreading the virus, which ends up hurting Denise. She hasn't intentionally harmed Denise, but she has harmed her -- you might categorize the harm as negligent (in that it flows from negligent failure to get immunized) or not, but it is indeed the infliction of harm.

Now it's true that the harm also flowed from Denise's voluntary decision to have sex with Carl. But, as I noted in an earlier post, it's hard to see why this should excuse the harm caused by Betty, any more than Denise's voluntary decision to get on the road excuses the harm that someone imposes on Denise by crashing into her with a car (or, if you prefer, that Betty imposes on Denise by crashing into Carl's car, which then crashes into Denise's).

Even if you think that some people's having many sexual partners should affect the analysis, remember that HPV can be spread even among people who are about as sexually constrained as can be expected. The Alan-Betty-Carl-Denise connection can happen even if Betty was a virgin when she married Alan; if she then didn't have sex with Carl until she married him (assume Alan had died, or had left Betty); and if Denise was a virgin when she married Carl (again, assume Betty had died, or had left Carl). This very scenario might be rare -- but lots of other scenarios in which people had led fairly safe lives, but find themselves getting HPV, are also quite plausible. And more broadly, even if people are leading somewhat riskier lives than this, participating in spreading a disease to them may still be quite rightly seen as harming them, despite their own role in choosing risky behavior.

Of course, if HPV immunization were 100% reliable, and 100% available, then this analysis wouldn't apply with quite the same strength: Presumably any person who remains at risk of HPV infection would be at risk because of her own refusal to get the vaccine. Yet while the immunization is supposed to be extremely reliable for 9-to-26-year-olds, it hasn't been tested on over-26-year-olds, and thus isn't recommended for them. Moreover, some people won't get the vaccine, possibly because they can't afford it. ($360 isn't chopped liver for many, especially for people who aren't in America.) Even an "assumption of risk" presumptive libertarian may reasonably conclude, I think, that refusing to get immunized is wrongful behavior, because it may lead to one's becoming a vehicle for transmitting a dangerous and sometimes deadly disease to third parties, and thus harming those third parties (in a way that an "assumption of risk" argument would not excuse).

Finally, recall that the question here is whether to immunize girls who are under 18, girls who may well get infected before 18 if the immunization is delayed until then. Even if it was just their own health on the line, and not the health of others whom they might indirectly infect, we could rightly say that they don't have the maturity to refuse this protection, and that their parents shouldn't be entitled to refuse this protection on their behalf. But since the question of what kinds of modest physical risks parents should be free to have their children run is thorny, contested, and old hat enough that I'm not sure I can add much to the subject, I thought I'd focus primarily on how parents' refusal to immunize their daughters may hurt others, and not just the daughters themselves.

So a brief summary: There may well be practical problems with truly mandatory immunization, and it may well be that herd immunity would mean that 90% immunization is good enough to reduce the risk to a level that doesn't merit regulation. There may of course also be practical objections to immunization if the immunization seems unduly risky (a question I set aside in the first post in this chain). But as a moral matter of individual liberty, it seems to me that there's little support for a claimed freedom from getting immunized -- and especially a claimed freedom from getting your underage children immunized. A requirement that people not allow their bodies to be media for unwitting transmission of deadly diseases strikes me as quite compatible with a generally libertarian perspective on the world.

John Norris Brown (mail) (www):
Great post. You nailed it.
2.5.2007 7:00pm
ReVonna LaSchatze:
But as a moral matter of individual liberty, it seems to me that there's little support for a claimed freedom from getting immunized -- and especially a claimed freedom from getting your underage children immunized. A requirement that people not allow their bodies to be media for unwitting transmission of deadly diseases strikes me as quite compatible with a generally libertarian perspective on the world.

Justify away, but the libertarian position would be ... choice.

Believe it or not, there are still plenty of celibate daughters under 18, and plenty of women who have only one life sex partner. And that one, is often well chosen. These parents should not have a mandatory (new=experimental, and you well know there are never 100% guarantees on vaccines) imposed on their daughters, and if it comes, it certainly won't come under any true "libertarian" guise.

I'll cancel out JNB above. Poor reasoning, easily rebutted in reality of respecting family decisions.

*Key fact distinguishing this particular vaccine: the "disease" is only spread through sexual contact. Not randomly through the air, like other contagious viruses. Thus, many parents have no reason to support the drug industry in supporting an early vaccine. And don't argue that all gals under 18 are susceptible to sex w/o their parents knowing, thus the mandatory necessity. It just doesn't hold here.
2.5.2007 7:08pm
Kovarsky (mail):
the general problems with Libertarians and their grasp on libertarianism does not involve the abstract principle as much as it does their ability to identify market failure and circumstances under which governments are in a position to correct it.

this is a nice example for how to show that.
2.5.2007 7:09pm
logicnazi (mail) (www):
As far as rhetorical strategy goes it would seem to me to be more compelling to start with vaccinations for some airborne disease. I mean suppose we had a horrible lethal pandemic that could be spread by coughing and a vaccine which granted like 90/95% protection. Now by adjusting those numbers to the right level you could easily make it the case that if 10% of the population held out and refused to get vaccinated we would have a massive outbreak (as those people plus 10% or whatever of those who were vaccinated die) but if everyone got vaccinated the disease would quickly die out, i.e., the few unvaccinated would provide a reservoir of the disease). This seems to be an obviously compelling case for mandatory vaccination and now demand that those who would refuse mandatory vaccination here draw the distinction themselves.

I've always been puzzled though about what makes one a libertarian once one has abandoned the absolutist stance. I mean one can no longer take a rights based approach once you grant that these rights can be defesed by some number of possible deaths but not by others. So why then isn't libertarianism a fully pragmatic thing, i.e., in most cases you think the libertarian policy would lead to better results? And if it is then shouldn't you always be re-evaluating these beliefs as the circumstances change, e.g., even if libertarianism is pragmatically a good thing in America maybe it is ill-suited to other cultures or to other times (say the future).
2.5.2007 7:12pm
logicnazi (mail) (www):
ReVonna,

Actually I think the daughter thing actually pulls the other way.

I mean children are not in fact property of their parents. Even a libertarian would properly outlaw a device that parents could put on their children that would kill them if they had sex as this would be a violation of the child's liberty. Thus we in effect have a liberty violation either way. If we don't mandate vaccination then we allow the parents to violate their children's liberty or we end up in the weird place of trying to give these vaccinations in secret from parents.

Ultimately I don't see much difference between this and forcing the Church of Christ Scientist people to give their kids medications when they are in life threatening conditions, or even just conditions that might permanently disable them.

Besides, once you grant that some vaccines should be forced on people despite their objections (say for an airborne plague) what makes this case different? The argument that sexual behavior is a choice that many people choose not to take is no longer relevant because we know that the children who take virginity pledges are just as likely to have sex as other kids so we know that the public health benefits would not accrue if we let them opt out.
2.5.2007 7:20pm
e:
Unfortunately it is too easy for individuals to get the risk balancing wrong, and help drug companies keep their preference for therapeutic, repeat-business drugs. Real problems of simian virus in polio vaccine and other medical snafus along with the current anti-vaccine myths make it unlikely that we'd reach 90% or whatever is necessary to defeat a disease by voluntary vaccination. Also too easy to support a right to not be innoculated because it supposedly only hurts the individual (or their children, or the members of the herd who cannot take the vaccine). In the long view, many diseases and strains have no reservoir outside of humans, and forcing shots for five generations may mean that no one will need to be vaccinated after that.

Of course we are as always working on incomplete knowledge, and keeping a disease in the population might have indirect research or direct diversity (in terms of immunity from other disease) benefits later. And what if there were a hundred or more shots?
2.5.2007 7:21pm
Thorley Winston (mail) (www):
ReVonna LaSchatze pretty much hit the nail on the head. Even if one subscribes to the idea that government should have the power to forcibly vaccinate people that rationale does not apply in a disease that (AFAIK) isn't airborne or spread through casual contact.

There's another libertarian argument as well -- namely that people should have to accept the consequences of their own choices and government should not be used to force the costs of those choices on others. If someone contracts this disease, it's because they chose to engage in the behavior with transmits it. It would be immoral under a libertarian philosophy of non-initiation of force to force anyone else to accept any part of the risk through mandatory vaccination.
2.5.2007 7:22pm
Kovarsky (mail):
ReVonna,

I don't understand. Your point is that because only "sexual" contact spreads the disease, as opposed to some other form of contact, there's a difference?

So a government cannot coerce immunization even though the vector does not internalize the costs of a failure to immunize, because transmission is sexual?

Is that right?
2.5.2007 7:26pm
gasman (mail):
So Eugene posits that perhaps vaccination could be compulsary.

That takes vaccination out of the realm of a medically administered therapy. Providing medical care requires informed consent. In compulsary vaccination both elements, informed and consent, are irrelevant. No physician under the present ethics of any professional society would administer or order anyone to administer a compulsary vaccination to a person who did not freely provide their consent to the procedure. In the end this may be just as well to demedicalize vaccinations, relegating them to the basic infrastructures that have brought most of the health improvements of the 20th century, namely, sanitation, clean water, good sewers, and control of pest animals and insects.
2.5.2007 7:27pm
Kovarsky (mail):
Logicnazi,

So why then isn't libertarianism a fully pragmatic thing, i.e., in most cases you think the libertarian policy would lead to better results?

I think the difference is that, under libertarianism, you do not compute the "better result" by reference to the interest of the person whose decision is potentially coerced. But I think the spirit of your remark is right - once you get away from the impossibly absolutist maxims, you're stuck in the "anti-paternalism" ghetto.
2.5.2007 7:29pm
Joshua:
My understanding is that the parents' main objection to this vaccine isn't on libertarian grounds - far from it. Rather, it's from the same cultural-conservative standpoint behind opposition to condoms and sex education in schools. Namely, that immunizing children against STDs amounts to a gesture of tacit approval of premarital sex.

Put another way, this viewpoint holds that the threat of an STD acts as a natural deterrent against premarital sex, and that society ought not act to defeat this deterrent. Setting aside the question of how strong a deterrent this really is among teens or anyone else, its upshot is that universal premarital virginity is, or at least ought to be, valued more highly than public health. Talk about misplaced priorities...
2.5.2007 7:29pm
e:
So if an reasonably safe and effective HIV vaccine offered the chance to clear the disease in 150 years, libertarians would prefer to inflict AIDS on a few extra generations on the principal that their descendents would avoid risk and not be unlucky?
2.5.2007 7:31pm
Thorley Winston (mail) (www):
So a government cannot coerce immunization even though the vector does not internalize the costs of a failure to immunize, because transmission is sexual?


Um no actually the costs are internalized because the people suffering from the disease are the ones who engage in the behavior which acts as the vector.

All someone who wishes to avoid the disease which supposedly is prevented by the vaccine has to do is not engage in that behavior (if they chose to do otherwise, they accept the risks that come with it). This is quite a bit different from something like a disease that can be transmitted through the air as people can much more easily avoid having sexual intercourse with others than they can avoid breathing in germs that are exhaled by others.
2.5.2007 7:35pm
Kovarsky (mail):
I'm not grasping some of the logical distinctions being made on this thread:

For instance,

ReVonna LaSchatze pretty much hit the nail on the head. Even if one subscribes to the idea that government should have the power to forcibly vaccinate people that rationale does not apply in a disease that (AFAIK) isn't airborne or spread through casual contact.

Say what? Am I not understanding, or is the point somehow that the government can coerce vaccines if the target pathogen spreads via "casual" contact, but not via "sexual" contact? I don't get the logical difference, other than that you have some punitive interest in penalizing the sexual contact.

And this one:

There's another libertarian argument as well -- namely that people should have to accept the consequences of their own choices and government should not be used to force the costs of those choices on others.

I think you mean to say that the libertarian argument is that people have to accept the consequences of their sexual choices, because you just said above that "casual contact" would be enough to justify coercive immunizations. Sharing a beer, walking into a locker, or engaging in a variety of other types of "casual contact," is no less a "choice" than is sexual contact.

I guess I'd appreciate it if someone could explain to me why sexual contact is a "choice" but choosing to use a public restroom is not.
2.5.2007 7:38pm
HLSbertarian (mail):
Prof. Volokh: Wouldn't an airborne disease, as logicnazi pointed out, make for a simpler and more compelling point here? After all, sex isn't exactly as you say, getting on the road, it's getting on the road and choosing (granted, with imperfect information) all of your fellow drivers.

A libertarian can argue that with an STD, someone who refuses to get vaccinated only commits a wrong if he also commits fraud. And then there could be an argument about what constitutes an implicit fraud in a society where 70%, 80%, 90% etc. of people ARE vaccinated.

With an airborne disease, and with the same caveat that some in the population CANNOT get vaccinated, a libertarian has a harder time.
2.5.2007 7:40pm
Kovarsky (mail):
Um no actually the costs are internalized because the people suffering from the disease are the ones who engage in the behavior which acts as the vector.

Um no actually they don't. A person internalizes the costs them getting the disease, but not the costs visited upon every person they transmit it to. If I cheat on my wife and contract it then I haven't internalized the burden on her in any economically meaningful respect.
2.5.2007 7:41pm
No Right to be Dangerous:
The vaccine will also help protect females who get raped, and their partners, and so on...
2.5.2007 7:41pm
Michelle Dulak Thomson (mail):
Eugene,

Moreover, some people won't get the vaccine, possibly because they can't afford it. ($360 isn't chopped liver for many, especially for people who aren't in America.) Even an "assumption of risk" presumptive libertarian may reasonably conclude, I think, that refusing to get immunized is wrongful behavior, because it may lead to one's becoming a vehicle for transmitting a dangerous and sometimes deadly disease to third parties, and thus harming those third parties (in a way that an "assumption of risk" argument would not excuse).

I see a small difficulty here in that Texas, at least, is (as I understand it) making vaccination quasi-mandatory without paying for it. If there are indeed people who could not afford a voluntary vaccination, making it mandatory obviously puts them in something of a pickle.

I wonder, incidentally, whether from a public-health standpoint it might not make more sense to make vaccination mandatory for boys, voluntary for girls, on the ground that the purpose of vaccinating a girl is to prevent her being infected, whereas the purpose of vaccinating a boy would be to prevent his infecting others. The latter looks more like a genuine public-health concern to me. (Obviously if either all girls or all boys are inoculated, transmission stops.) Of course, IIRC the vaccine isn't yet FDA-approved for boys, but if it were?
2.5.2007 7:41pm
Thorley Winston (mail) (www):
My understanding is that the parents' main objection to this vaccine isn't on libertarian grounds - far from it.


Stop. Right. There.

Once we go beyond the question of whether government ought to force someone to do something or forcibly prevent them from doing something we are no longer on "libertarian grounds."

The actual "motivations" whether real or a product of your imagination about what a parent decides to teach their children about premarital sex are none of your goddamn business and certainly none of the State's.
2.5.2007 7:42pm
Thorley Winston (mail) (www):
Um no actually they don't. A person internalizes the costs them getting the disease, but not the costs visited upon every person they transmit it to. If I cheat on my wife and contract it then I haven't internalized the burden on her in any economically meaningful respect.


Actually yes since the people who contract it from you would have also engaged in the same behavior which acted as the vector.
2.5.2007 7:44pm
Kovarsky (mail):
Look, all the libertarian navel-gazing aside, I live in Texas (the jurisdiction for the law in question) and read about this every day, and Joshua has it right:

My understanding is that the parents' main objection to this vaccine isn't on libertarian grounds - far from it. Rather, it's from the same cultural-conservative standpoint behind opposition to condoms and sex education in schools. Namely, that immunizing children against STDs amounts to a gesture of tacit approval of premarital sex.

My problem with a lot of the people on this thread is what appears to be an attempt to disguise this same impulse as a "libertarian" argument. The basis for that "disguise" is some distinction between "choice" in casual partners and "choice" in sexual partners. If you can't draw and economically meaningful distinction between the two types of choice, then this is just a puritannical objection in libertarian drag.
2.5.2007 7:45pm
frankcross (mail):
Vaccines are a classic case of market failure. First because the person being vaccinated can internalize some of the benefit but not all of it, since considerable benefits are derived from not transmitting it to others. Second because of the herd effect, people can get the benefits of the vaccination, preventing transmission, while externalizing all of the costs of vaccination to others.

And that account doesn't even consider the considerable medical and economic externalities that would be associated with a disease epidemic.
2.5.2007 7:49pm
Thorley Winston (mail) (www):
Say what? Am I not understanding, or is the point somehow that the government can coerce vaccines if the target pathogen spreads via "casual" contact, but not via "sexual" contact? I don't get the logical difference, other than that you have some punitive interest in penalizing the sexual contact.


No, I just recognize that people breathing air that has been exhaled by a sick person is such a widespread occurrence that people cannot protect themselves against in a reasonable manner. Diseases spread by sexual contact are less likely to occur and far easier to prevent.

As far as my purported "punitive interest in penalizing the sexual contact," the difference between a "libertarian" and a "libertine" is that the former actually believes in personal responsibility whereas the later seeks to externalize the costs of their lifestyle choice on innocent people.

Simply put, I don't give a damn who you screw -- just don't try to use to State to interfere in my life or my child's to protect yourself from the consequences of your lifestyle choice.
2.5.2007 7:53pm
Joshua:
Thank you Kovarsky, this is the first time in a long while that anyone on this blog has actually admitted to agreeing with me. 8-)

Another potential can of worms that just occurred to me: Are children of illegal immigrants covered by the vaccination mandate?
2.5.2007 7:56pm
WHOI Jacket:
Why don't we make Flu vaccines mandatory then? Seems like that'd save more lives in the longer run.
2.5.2007 7:57pm
Thorley Winston (mail) (www):
My problem with a lot of the people on this thread is what appears to be an attempt to disguise this same impulse as a "libertarian" argument. The basis for that "disguise" is some distinction between "choice" in casual partners and "choice" in sexual partners. If you can't draw and economically meaningful distinction between the two types of choice, then this is just a puritannical objection in libertarian drag.


Does someone need to explain to Kovarsky that there is nothing contrary to a libertarian position that is based on a "puritanical objection"?

Libertarianism is a philosophy that concerns itself with coercion by the State. Period.

If people want to live a life based on puritanical beliefs and raise their children that way, that's their call. Heck we'd probably have a better society in general if instead of trying to protect people from the consequences of a "libertine" lifestyle with mandatory vaccinations or State indoctrination on birth control, more people raised their children in a traditional manner.

That doesn't mean that such people have the right to use the State to force their beliefs on others and it certainly does not justify (or invalidate attempts to oppose) forcing the opposite on them.
2.5.2007 8:00pm
Bored Lawyer:
The libertarian argument to differentiate between airborn disease and STDs is that as to STDs, one can through personal choice greatly reduce (albeit not eliminate) the risk of infection. That is much harder to do in the case of airborn infections.

Balance that against the risk of being harmed by the vaccine itself -- which at this point seems unknown, and is probably at least statistically appreciable. (So far I have seen little in these posts discussing the risk of vaccination. The vaccine does not seem to have a long track record yet like the classic childhood vaccinations -- polio, tetanus, etc.)

The libertarian argument is that a person should have the choice to avoid the risk of vaccination and take it upon herself to minimize the risk of infection through careful selection of sleeping partners.

Change the scenario to an airborne infection, and that argument is much harder to press.
2.5.2007 8:03pm
Kovarsky (mail):
Thorley,

Actually yes since the people who contract it from you would have also engaged in the same behavior which acted as the vector.

O I'm sorry, I thought we were talking about libertarianism. I thought we were talking about the principle that the autonomous legal and economic unit was the individual.

You must be talking about something else. Because you don't mean that the individual internalizes the cost of the behavior. You mean that the category of people that engage in the risk-causing behavior internalize it. You mean that "they" do.

I apologize. I was proceeding on the misunderstanding that we were talking about what we were talking about. I didn't realize that whether costs were internalized at the level of the "group" engaging in the risk-taking behavior really mattered to libertarians. I thought the issue was whether a person, not a category of persons, internalized the cost.

You must feel the same way about "everybody that chooses to eat meat," or "everybody that chooses to use a public bathroom," or "everybody that chooses to go to a community hospital." I'm sorry, I must be posting on the wrong thread.
2.5.2007 8:05pm
ReVonna LaSchatze:
Kovarsky:
Not every woman will marry a cheating husband though or be raped. In fact, for many the odds are against it, believe it or not.

Thorley has it right. Why should a segment of the population not at risk for contracting cervical cancer (and I believe studies would bear me out that not all women are at risk, particularly if they are celebate or in purposely and faithfully lifelong monogomous relationships) be forced to take this vaccine? An airborne virus is different -- you have much less control over the air you breathe than the people you let inside your body. I don't think the "rape" scare tactics, nor the "your husband might cheat" or "your daughter might be sexually active w/o your knowledge" should tip the balance here toward mandatory. At some point, if you decide not to immunize yourself or your daughter when under 18, and something like rape from an infected person should occur, which leads to the one-time transmission of cervical cancer, I think a libertarian philosophy would allow the individual or individual parent to assess the likelihood of such a risk and live with the consequences, if cervical cancer is the result.

Better the parent make the choice with the young woman who will be with that body for the rest of her life, than the state impose what is "correct" or most efficient in controlling this internally contracted disease. Look around -- would you put your faith and your daughter's body in the government's hand under under a truly mandatory decision -- with no opt out. Not me, thanks. As for me and mine...

*again, we are talking the particular facts in this particular case. It's not an airborne virus, and the rates of cervical cancer in women are not as alarming as say, the HIV infection rate in some African countries. Under different circumstances, a whole new analysis and perhaps different conclusion than the facts here.
2.5.2007 8:05pm
Kovarsky (mail):
Bored Lawyer,

I understand that it's "harder" to avoid casual contact that "sexual" contact. But is their any less "choice" involved in my "cheat on my wife" example. Has my wife implicitly assumed some risk by having sex with me whose magnitude exceeds that of someone at risk of contracting a disease by traveling to a third world country?
2.5.2007 8:07pm
Eli Rabett (www):
Such issues become muddied when you talk about sexually transmitted disease. A much clearer situation to argue this on is the MMR (Mumps/Measles/Rubella) situation in the UK. Owing to disproved claims that the vaccine caused autism, there has been a large drop in coverage. In that case parents are attempting to be free riders, avoiding all risks while relying on the herd effect to protect their kids.
2.5.2007 8:08pm
ReVonna LaSchatze:
Thorley said: Stop. Right. There. I gotta know right now:

Are you quoting MeatLoaf in this particular thread??
If so, I love it. Theme music for the threads. Heh!
2.5.2007 8:09pm
Kovarsky (mail):
Thorley,

Does someone need to explain to Kovarsky that there is nothing contrary to a libertarian position that is based on a "puritanical objection"?

Libertarianism is a philosophy that concerns itself with coercion by the State. Period.


I'm asking what distinguishes the state coercing a vaccine for an airborne pathogen from the state coercine a vaccine for a sexual one. Of course "morality" can be a basis for distinguishing between the two, but don't pretend that the distinction has anything to do with libertarianism or an ontologically plausiable definition of "choice."
2.5.2007 8:12pm
Bored Lawyer:

I understand that it's "harder" to avoid casual contact that "sexual" contact. But is their any less "choice" involved in my "cheat on my wife" example. Has my wife implicitly assumed some risk by having sex with me whose magnitude exceeds that of someone at risk of contracting a disease by traveling to a third world country?


I don't get your point. Any time someone has sex, they are accepting SOME risk of contracting an STD. As I said, the choice reduces, but does not eliminate the risk. If one chooses a partner who is moral (or perceived as such) then the risk can be reduced further than if one chooses a partner who has "slept around." Again, not elimination of risk, but reduction.



But is their any less "choice" involved in my "cheat on my wife" example. Has my wife implicitly assumed some risk by having sex with me whose magnitude exceeds that of someone at risk of contracting a disease by traveling to a third world country?


No, I would think in most situations the risk is LESS, albeit not zero. That's the point.
2.5.2007 8:18pm
Kovarsky (mail):
ReVonna,

I'm sorry if I seem impassioned about this, but I'm pretty familiar with the disease, if you catch my drift. Like, I know "facts" and "data" about how the disease is transmitted. This is particularly strange:

At some point, if you decide not to immunize yourself or your daughter when under 18, and something like rape from an infected person should occur, which leads to the one-time transmission of cervical cancer, I think a libertarian philosophy would allow the individual or individual parent to assess the likelihood of such a risk and live with the consequences, if cervical cancer is the result.

Actually, the scenario by which your daughter would most likely catch it is not "rape from an infected person [sic]," but by consensual sex with a man that never knew he had it. You see, men don't get cervical cancer[!] HPV is undetectable to men, unless it is tested for specifically. So your daughter would, in all likelihood, not get it because she is raped by a stranger, but because she had completely consensual sex with a boyfriend that didn't know he had it. Mothers are free to "internalize" that cost by "choosing" not to vaccinate their child (although of course, the mother does not internalize the costs of the child's partners, or the child's partners' partners, but that's just a little to "mathey" for this thread). I just wouldn't want that mother to be, you know, my daughter's mother.
2.5.2007 8:20pm
ReVonna LaSchatze:
Kovarsky:
Would you force birth control pills on underage women because they might be sexually active without their parents knowing? Because they might be raped, or their husband might use faulty birth control? Becuase it would bring about an overall social good like only "chosen" babies being conceived?

Most libertarians would not. You are gussying up your objections but going to the bathroom in a public restroom no more puts you at risk for HPV as it does for pregnancy.

I suspect your failure to grasp our arguments here is because you are so entrenched in the complexities of "most" relationships, or your own morals and values, that you cannot see they are not necessarily shared.

Airborne v. sexually transmitted greatly changes the risk calculation for many young women, but for some reason you cannot see that.
2.5.2007 8:22pm
Stormy Dragon (mail) (www):
>Betty's failure to get immunized would lead to her
>unwittingly spreading the virus, which ends up hurting
>Denise. She hasn't intentionally harmed Denise, but she
>has harmed her -- you might categorize the harm as
>negligent (in that it flows from negligent failure to get
>immunized) or not, but it is indeed the infliction of harm.

If one knows one can minimize the risk of sexually transmitted diseases and chooses not to, wouldn't one have recklessly caused the transmission, not negligently caused it?

It's a significant distinction because criminal liability general doesn't attach to negligent acts, but it does generally apply to reckless acts.
2.5.2007 8:24pm
ReVonna LaSchatze:
Kovarsky:
INstead of grappling with substance, you choose to assume I am ignorant. I apologize if my miswording, and poor word choice throws you. I do suspect, however, you get my gist, which you didn't respond to.

Correction: If the rape of a 17-year-old virgin leads to her contracting HPV, which can cause elevated rates of cervical cancer, and her parents and her have made the decision not to vaccinate her earlier, then she would have to accept the consequence.

My point is the odds are miniscule that a young women who is unvaccinated are raped and contracts HPV, and perhaps then cervical cancer.... it should be the family's decision, not the government's, whether to assume this "risk". Ditto the "odds" of a cheating, virus-spreading husband. You choose for you and yours; leave the liberty to others to decide for themselves.
2.5.2007 8:28pm
Kovarsky (mail):
Bored Lawyer,

"A moral partner." Jesus, I didn't realize what I was dealing with. Anyways,

I don't get your point. Any time someone has sex, they are accepting SOME risk of contracting an STD. As I said, the choice reduces, but does not eliminate the risk.

The point is not whether a person knows that he or she is engaging in risky activity. The point is whether, in choosing to undertake that risk, that person's decision accurately reflects that decision's costs and benefits. If I screw someone out of wedlock, my decision probably doesn't incorporate or reflect the preferences of my wife, who is now at risk of contracting the disease. As long as the decision to screw my mistress doesn't FULLY reflect my wife's interests, it doesn't matter that my wife knows that she is running "some risk" of contracting an STD by sleeping with me.
2.5.2007 8:28pm
ReVonna LaSchatze:
You sound like a real dog "Kovarsky", if I do say so hypothetically.

Explain to me why celibate women should share your risk concerns?
2.5.2007 8:32pm
Kovarsky (mail):
This whole exchange is downright absurd. Men don't bear significant risks of HPV because they don't get cervical cancer (there are other complications for men, but they're nothing compared to those for women). It's never going to be in a man's interest to get the vaccine. The cost is borne entirely by women, and it's downright irresponsible to allow men to "opt out" on libertarian grounds, as though somehow they are making a brave and honest choice to accept the bitter with the better. It's a decisional farce, plain and simple.
2.5.2007 8:33pm
Bored Lawyer:

The point is not whether a person knows that he or she is engaging in risky activity. The point is whether, in choosing to undertake that risk, that person's decision accurately reflects that decision's costs and benefits. If I screw someone out of wedlock, my decision probably doesn't incorporate or reflect the preferences of my wife, who is now at risk of contracting the disease. As long as the decision to screw my mistress doesn't FULLY reflect my wife's interests, it doesn't matter that my wife knows that she is running "some risk" of contracting an STD by sleeping with me



All your example points out is that people take risks out of ignorance of all the relevant facts.

The husband's decision to cheat on his wife clearly does not take her interests into account. So what?

The wife chooses to have sex with her husband -- whom she does not know whether he is cheating. That's what statistical odds are about -- the risk of something unknown happening. In this case what are the risks that (a) the husband is cheating and (b) cheating with someone who has the STD at issue and (c) transmits the disease to the wife. That has to be balanced against (d) the risks of the vaccination itself -- which I have yet to be convinced are not appreciable.

The libertarian view is that one has the right, free of govt. coercion, to balance (a-c) as against (d).
2.5.2007 8:37pm
Kovarsky (mail):
ReVonna

You sound like a real dog "Kovarsky", if I do say so hypothetically.

Explain to me why celibate women should share your risk concerns?


I think you've said more than I ever could.
2.5.2007 8:38pm
Bored Lawyer:
The last post was a bit oversimplified, since there are other ways of contracting the disease, such as rape. But in any event, the main point still stands. Particularly since one can greatly reduce the risks on one side of the ledger through personal choice.
2.5.2007 8:41pm
Bored Lawyer:

This whole exchange is downright absurd. Men don't bear significant risks of HPV because they don't get cervical cancer (there are other complications for men, but they're nothing compared to those for women). It's never going to be in a man's interest to get the vaccine. The cost is borne entirely by women, and it's downright irresponsible to allow men to "opt out" on libertarian grounds, as though somehow they are making a brave and honest choice to accept the bitter with the better. It's a decisional farce, plain and simple.


Are men being vaccinated now? I thought it was women and teenage girls who were the subject of the mandatory vaccination.

Or is this some feminist rhetoric disguising itself as an argument?
2.5.2007 8:42pm
Joshua:
Setting aside the puritanism/culture war angle for now, there is one other minor detail that complicates the libertarian argument: Vaccinations (be they against an STD or something else) are not 100% effective. That is, even if you are vaccinated against any given disease, your chances of getting the disease yourself drop dramatically <b><i>but not to zero</i></b>. To reduce your risk further, you have to rely on everyone around you to also be vaccinated. (Even illegal immigrants, which is what prompted my question above.)

If you choose not to vaccinate your children on puritanical (or any other) grounds, you are, however unwittingly and however slightly, increasing the risk for everyone else <b><i>including those who ARE vaccinated</i></b>.* Multiply you by a few thousand in a city, or a few million nationwide, and the purpose of the immunization program becomes significantly compromised.

So, another thing to consider is whether this slight, but non-zero, difference in risk justifies universal mandatory vaccination. (Sound familiar? Like, say, the question of whether the slight, but non-zero, risk of a major terrorist attack justifies the intrusive surveillance and security methods favored by the Bush administration?)

*Of course, in the case of an STD there is another way to avoid being infected: abstinence from sex. That gets us back to the culture-war angle, and the aforementioned notion of the potential for STD infection as a sexual deterrent.
2.5.2007 8:43pm
Kovarsky (mail):
Bored Lawyer,

It's sixth grade girls. I was making a point about internalizing costs. Not about feminism, but also not about the proposal being considered in Houston.
2.5.2007 8:45pm
Kovarsky (mail):
Bored Lawyer,

It's sixth grade girls. I was making a point about internalizing costs. Not about feminism, but also not about the proposal being considered in Houston.
2.5.2007 8:45pm
Kovarsky (mail):
Bored Lawyer,

It's sixth grade girls. I was making a point about internalizing costs. Not about feminism, but also not about the proposal being considered in Houston.
2.5.2007 8:45pm
Joshua:
Man, I hate it when my formatting tags get ignored.
2.5.2007 8:45pm
Bored Lawyer:
Seems that there is an echo here.
Seems that there is an echo here.
Seems that there is an echo here.
2.5.2007 8:47pm
Waldo (mail):
A requirement that people not allow their bodies to be media for unwitting transmission of deadly diseases strikes me as quite compatible with a generally libertarian perspective on the world.

Would this argument justify mandatory testing for HIV?
2.5.2007 8:47pm
Steve P. (mail):
I may be oversimplifying, but it seems to me that ReVonna isn't making the completely principled argument, therefor Kovarsky's rebuttals are somewhat inaccurate.

Basically, ReVonna is admitting to some line between airborne diseases (which is still a 'choice' to be exposed to, since a person could choose to live in the wilderness and shun all human contact) and sexually transmitted diseases. If the reason is a conservative sex-is-bad one, then it is 'dressed up in libertarian drag'. If the reason is a numerical one, then it seems (to repeat myself) reasonable. Specifically, even though it's not enumerated, there IS some sort of cost/benefit calculation that can outweigh the principled libertarian 'choice' argument.

I agree with Professor Cross, vaccinations are a great example of a market failure, and if one of the main ideas behind government isn't correcting market failures, then why have governments? There is an argument that some market failures can be so minimal as to be ignored (or that the cost of 'fixing' them exceeds the cost imposed by their existence). I'm not convinced that is the case with HPV vaccines.
2.5.2007 9:21pm
Kovarsky (mail):
Steve P,

I hope that, if nothing else, it's clear that I understand that there is what you are calling a numeric difference between airborne diseases and sexually transmitted ones.

I just don't see how that difference should make a difference to "real" libertarians that aren't using the philosophy as a means to disguise cultural conservatism and sexual denial.
2.5.2007 9:26pm
Michelle Dulak Thomson (mail):
Joshua (and others who have echoed him):

Put another way, this viewpoint holds that the threat of an STD acts as a natural deterrent against premarital sex, and that society ought not act to defeat this deterrent.

I realize that Eugene devoted a whole other segment of this series of posts to this supposed objection, but I have difficulty believing that social conservatives who object to mandatory vaccination do so because they're fretting about the loss of a deterrent effect. Surely the objection is that if the state insists on all sixth-graders being inoculated against an STD, it is treating sexual activity among sixth-graders as normal/commonplace/only to be expected? I doubt that any parent in America really thinks that only the looming fear of cervical cancer prevents his/her pre-teen daughter from running out and getting laid. OTOH, an awful lot of parents might understandably resent the government's assuming that she's getting laid already.

To make an admittedly clumsy analogy: It is difficult to imagine Jewish parents who keep kosher objecting to measures to combat trichinosis contamination in pork on the ground that their children are more likely to adhere to the dietary laws if pork is unsafe to eat. But if there were some otherwise-unremovable risk to eating pork that could be counteracted simply by ingesting a safe drug, I think Jewish parents would be understandably upset if treatment with the drug were made mandatory, yes?
2.5.2007 9:31pm
Kovarsky (mail):
Michelle,

Why did you address that to Joshua et al.? In any event, I agree with you.
2.5.2007 9:41pm
Steve P. (mail):
Kovarsky,

Yes, that's perfectly clear. To quote ReVonna:
again, we are talking the particular facts in this particular case. It's not an airborne virus, and the rates of cervical cancer in women are not as alarming as say, the HIV infection rate in some African countries. Under different circumstances, a whole new analysis and perhaps different conclusion than the facts here.

This indicates to me that ReVonna is admitting a line somewhere, which indicates to me that the numbers can outweigh the principled libertarian argument. I think that this is a common viewpoint, and so the argument should really be refocused onto the question, "where is the line?"
2.5.2007 9:48pm
Curious George:
Another tangent, which does not apply to the HPV vaccine (to my knowledge) but does apply to some other vaccines (e.g., MMR, chickenpox):

The versions used in the U.S. were developed from aborted human fetuses. Some object to injecting themselves or their children with the product of immoral (in their view) lab work. Surely the violation of conscience involved here is stronger, no?

If you do not share their view on the particulars, ask yourself whether you'd treat your kid with medicine made from third-trimester elective abortion, or from whatever point (post-birth?) you'd find immoral (animal testing?. At some point we'd all have a problem. How much do we defer to others' individualized objections regarding the production of a vaccine (or other "good")?
2.5.2007 9:53pm
Erisian23 (mail):
Steve P.:

>> Basically, ReVonna is admitting to some line between airborne diseases (which is still a 'choice' to be exposed to, since a person could choose to live in the wilderness and shun all human contact)

I'm not sure why there's difficulty drawing a distinction between an airborne disease and a behaviorally transmitted disease. My admittedly imperfect libertarian belief is that the gov't ought to protect me from negative externalities to the extent that I cannot reasonably mitigate them myself.

If individuals stipulate a right to spread a highly contagious, airborne, and ultimately terminal disease leaving me with only the option of shunning all human contact, it's fair to say that my "choice" in the matter was effectively coerced by a negative consequence of their behavior. Thus, I argue they have no individual right to expose me to the risk of such a serious contagion when my only recourse is to leave society entirely when that right is broadly exercised. My neighbor also has no individual right to store large quantities of radioactive materials or high explosives. Their presumptively rational decision to do so is curtailed precisely because it carries such a high degree of involuntary risk assumption by innocent 3rd parties. My decision to participate in society does not equate to my assuming the risk that my neighbor might blow my house up or cause my dog to start glowing in the dark.

Kovarsky:

The same holds true of airborne contagions, imo. You deserve to be protected from me if, by merely walking by you and coughing, I can put your health in serious jeopardy. True, you can avoid the risk by only going outside in a bubble and installing an expensive ventilation system to clean the air in your house, but what is that if not a response to a negative externality caused by my behavior? The burden imposed remains unacceptable regardless of whether my decision to cough near you was maliciously indifferent, simply negligent, or founded on the belief that God only allows people to get sick according to His Will.

You do, however, have the option of having sex with me or not (this is not a solicitation). It's your option to pro-actively protect yourself through vaccination, ask me to get tested and then trust my on-going faithfulness, or simply do nothing and hope for the best. The degree of risk you're willing to take upon yourself in our relationship is entirely up to you and, with the vaccine available, you have more choices now than before. But given the range of choices at your disposal, it's hard to conclude that this is a scenario in which the gov't needs to compel vaccinations for everyone. Since I cannot cough and infect you with HPV, it's acceptable to let each choose their risk according to their own values and preferences.

You mention that you have the option of cheating on your wife and carrying the infection to her, an innocent 3rd party. Her family (when she's 9 to 17 yrs old) and she (18 to 26) are certainly welcome to factor that risk into their decision on whether to vaccinate or not.

In essence, to the extent that I can suffer serious harm from a disease by merely going near a public toilet, I'm willing to accept gov't coercion. But if I have to actively and voluntarily lick that same toilet to get a particular disease, forced vaccinations are unnecessary. And to the extent that my wife is suddenly at risk because of my secret toilet licking proclivity, she is presumably capable of factoring that degree of risk into her decision on whether to voluntarily vaccinate or not.
2.5.2007 10:05pm
Kovarsky (mail):
Steve P.,

If you think the question is a quintissentially utilitarian one about where draw the line (which I do), why are we talking about libertarianism? Why don't we just talk about it in those terms, instead of clumsily invoking a theory that doesn't fit here?
2.5.2007 10:08pm
Kovarsky (mail):
Erisian,

The libertarian narrative looses it's persuasdive force when you start to premise it on subjective assessments of what risks are "reasonable" and what risks aren't.
2.5.2007 10:15pm
Kovarsky (mail):
"its persuasive force"
2.5.2007 10:17pm
Eugene Volokh (www):
ReVonna LaSchatze: OK, that "real dog" comment, coupled with your past comments about your adversaries' penis size, does it for me. You're no longer welcome here. Please stop posting.

I can't ban your IP address, because your comments come from varying addresses. (I'd actually tried banning you after the penis size comments, but that stymied me at the time, so I decided to drop it for then; but the most recent comment reinforced my initial intentions.) But I will delete future comments from you if they keep coming.
2.5.2007 10:18pm
ben (mail):
Michelle Dulak Thomson

The vaccine only works if its administered before someone is infected with the virus. So administering it to sixth graders is making the opposite assumption about their sexual activity. I think it is one of the stronger arguments for making it mandatory (with limited opt outs). A minor old enough to want/advocate for the vaccine is old enough to have engaged in activities that could have already exposed them to the HPV virus. So parental choice may not be proxy for the minors choice. That's a tough libertarian issue.

One side note, if they do make the vaccine mandatory, and the drug company makes a killing off of it, I could see this encouraging more R&D on vaccines, which I would see as a bonus.
2.5.2007 10:50pm
Waldo (mail):
Kovarsky,

It seems to me that there are objective differences between "casual" contact and "sexual" contact.

For one, casual contact (with clients, coworkers, etc.) can be a reasonable condition of employment. Sexual contact is not. I also believe that to "live in the wilderness and shun all human contact" is objectively different in that it precludes other activity (politics, education, sports) in which a person can expect to participate. Limiting one's sexual behavior shouldn't have an effect beyond one's sexual life.

Likewise, one generally does not have the option of urinating in public in other than a public restroom, at least in those places that have public restrooms.
2.5.2007 10:55pm
Joshua:
Michelle Dulak Thomson wrote:
I realize that Eugene devoted a whole other segment of this series of posts to this supposed objection, but I have difficulty believing that social conservatives who object to mandatory vaccination do so because they're fretting about the loss of a deterrent effect. Surely the objection is that if the state insists on all sixth-graders being inoculated against an STD, it is treating sexual activity among sixth-graders as normal/commonplace/only to be expected? I doubt that any parent in America really thinks that only the looming fear of cervical cancer prevents his/her pre-teen daughter from running out and getting laid. OTOH, an awful lot of parents might understandably resent the government's assuming that she's getting laid already.
It's not what parents are afraid of that really matters, but what they can get their kids to be afraid of. To illustrate my point, I will now quote from one of the timeless works of that great American poet Rick Nielsen, as recited by Robin Zander:
Mother told me, yes she told me
I'd meet girls like you
She also told me, stay away
You never know what you'll catch

Now, that sort of scare tactic wasn't much of a deterrent even back in the 1970s when that song was written. Yet parents still used it on their kids, and I'm sure some still do, because they still believe it holds some non-negligible deterrent value. Strip that layer of deterrence away, goes the cultural-conservative logic, and parents have one less tool in their kit to steer their kids away from premarital sex.

For that matter, I suspect a similar dynamic is at work with respect to opposition to ending the War on Drugs.
2.5.2007 10:56pm
Kovarsky (mail):
ben,

perhaps i misunderstand her, but i take michelle only to be saying that you cannot count among "legitimate" rationales resisting the mandatory vaccine that which would say, "well, if you give them the vaccine, you diminish the chance that they'll develop cervical cancer, which in turn diminishes the penalty for sex, which in turn increases sexual activity amongst sixth graders."

i tend to agree with her in the sense that i find the "cancer keeps 'em straight" argument morally repugnant, although i don't see anybody making that here.
2.5.2007 10:57pm
Kovarsky (mail):
if you could sum all the time i've spent drunk in my life, more of it would be spent drunk listening to cheap trick's surrender than to any other song.
2.5.2007 11:02pm
Erisian23 (mail):
Kovarsky:

>> The libertarian narrative looses it's persuasdive force when you start to premise it on subjective assessments of what risks are "reasonable" and what risks aren't.

I disagree. In most common situations, my assessment of costs vs. benefits is likely to differ from yours based on subjective assessments. I may prioritize current consumption over future consumption, and you the oppose. And it may in fact turn out that my risk settings are unreasonable - it hardly holds from a Libertarian view that you are obligated to pass a law compelling me to invest in my 401(k) against my wishes.

In fact most assessments of what risks are "reasonable" and what risks aren't are necessarily subjective. You and I can agree rising infection rates are causally related to reported increases in risky behaviors. We can assign a cost to that based on treatment expenses, shortened life spans, etc. We can also put a price on the vaccine. But we cannot put a price on a good faith, conscientious religious objection. And we shouldn't even put a price on an irrational fear of chemicals. If someone is happier living with the risk of HPV than injection, why shouldn't they be allowed to choose that based on their own subjective idiocy? If you disagree with their decision, you need only get yourself injected - which leaves you no better nor worse off than under the proposed mandatory regime, but allows them to live according to their own definition of happiness.

If sexual behavior was as involuntary and necessary as breathing, I'd be all for mandatory innoculations. Instead, this strikes me as one of those value-propositions - does your concern for Mr. Smith's 6th grade daughter's future well-being outweight their devout and truly held religious objection to decreasing the risk of promiscuity at such an early age? If they prefer to keep the random sex partner business risky but support their daughter's decision to take the vaccine immediately prior to marriage, is that something we ought to trump?

Perhaps you could clarify what precisely is so unpersuasive about that in your eyes?
2.5.2007 11:17pm
Laurie Lynn:
I agree with the posted above - we should have mandatory flu vaccines to save lives. More lives would be saved from this than from the HPV vaccine.

Also, we know that healthy people with strong immune systems catch fewer illnesses, and therefore spread fewer illnesses. I therefore prose that we make mandatory a minimum of 7.5 hours of sleep per night, a minimum of 35 minutes of exercise / 5x week, and a minimum of 5 fruits and vegetables per day. Eating of sugary and junk food will be strictly prohibited.
2.5.2007 11:18pm
Kovarsky (mail):
Erisian,

If sexual behavior was as involuntary and necessary as breathing, I'd be all for mandatory innoculations.

You do see the humor in this statement, right? I mean, P-R-O-C-R-E-A-T-I-O-N.
2.5.2007 11:19pm
Kovarsky (mail):
Laurie,

You must distinguish a paternalism from a market-corrective rule. The vaccine is not imposed "because its a good idea" for the person being vaccinated (this is the version that fits all your analogies), but because person A's failure to get vaccinated puts persons B, C, and D at risk without person A having factored person B, C, and D into her decision to get the vaccination.

I don't feel like going back into everything traversed above, but suffice it to say that this situation is to be distinguished from those, such as those you invoke, where the only interest being asserted is the person being regulated.
2.5.2007 11:33pm
Gregory Conen (mail):
This enters tricky grounds as it deals with the choices affecting children, who are
1) Somewhat incapable of making rational choices for themselves; thus cannot be afforded the same liberties or held to the same responsibilities of adults, in a libertarian world.
2) Somewhat incapable of making decisions of any sort that their parents disapprove of.

For these reasons, libertarian arguments about children are always dicey.

In this case, I agree with the whole internalized risks thing, in this situation, rather the public health thing.

The presence of sexual behavior by people who cannot know the risks makes this tricky. I'd prefer some way to make this available to teens who want to have it but whose parents don't.

Final thought: for any measure on mandatory HPV vaccine use to be justified on public health grounds, cannot apply only women, but to both genders equally, or possibly only to men. The population immunity benefits are actually less for each vaccinated woman than each vaccinated man, using the simplify assumption that woman rarely catch the disease from other women. (Not on homophobic grounds, but most people are primarily heterosexual).
2.5.2007 11:46pm
Laurie Lynn:
You must distinguish a paternalism from a market-corrective rule. The vaccine is not imposed "because its a good idea" for the person being vaccinated (this is the version that fits all your analogies), but because person A's failure to get vaccinated puts persons B, C, and D at risk without person A having factored person B, C, and D into her decision to get the vaccination.

Excuse me, Kovarsky, but if you re-read my post, you can see that my point was that your failure to take care of your own heath compromises my health. Poor health = poor immune system = increased susceptibility to illness = spread of illness in the greater community.

Of course, I don't really advocate these kinds of laws. My real point is : Where does all this end? As long as our goal is to ensure the health of the general population, the state has a right to impose all sorts of restrictions and laws.

I will most likely immunize my daughter (after a discussion with her doctor). And I am glad this option is available to us. But I strenuously object to Governmental Force in this matter.
2.5.2007 11:48pm
Kovarsky (mail):
Laurie,

I agree I misread your post. I don't agree with your "where does it end reasoning," but I do agree that you appreciate the paternalist versus market corrective distinction. My apologies.
2.5.2007 11:51pm
Erisian23 (mail):
Kovarsky:

>> >> If sexual behavior was as involuntary and necessary as breathing, I'd be all for mandatory innoculations.

>> You do see the humor in this statement, right? I mean, P-R-O-C-R-E-A-T-I-O-N.

Who's forcing you to procreate with HPV-infected individuals? If a potential mate behaved in risky ways in the past and is suffering the consequences of that, you may choose to accept that or walk away.

I put HPV on par with cirrhosis caused by chronic alcoholism. It's a tragedy. I hate what it does to people's lives and I'm genuinely sorry for them. But I'm unwilling to have the government take over their behavior for them (as long as they're not driving a vehicle, for ex). If your at home, your drinking limit is determined by your body and your finances. Your potential mates are no more obligated to marry an alcoholic than you are to procreate with an HPV infected individual.

As a result, you've no right to insist my daughter get shot up with chemicals simply because it will eliminate one of the ways in which your son could perceive her to be an undesirable mate in a decade or two.

I'm losing interest in these one-line responses lacking in substantive details, so please don't be offended if I stop responding to them.
2.5.2007 11:55pm
Kovarsky (mail):
I'm also afraid that some of what I'm saying is getting lost in translation. I'm not unconditionally for mandatory vaccines. I'm just saying that "libertarianism" doesn't furnish a particularly compelling objection, because vaccination is a quintissential market failure. The government may be in a sub-optimal position to correct that failure, but that's a utilitarian question. Questions about "where does it end," "how do we draw the line," etc. are all perfectly reasonable questions, and also ones that libertariansim is profoundly ill-equipped to address. That's my only point.

Although I admit I find talk of a parent's "right" to choose sub-optimal health care for their child, as an incedent to rearing it, to be a little disconcerting. You, of course, do not suggest this - but others do.
2.5.2007 11:58pm
Kovarsky (mail):
Erisian

I'm losing interest in these one-line responses lacking in substantive details, so please don't be offended if I stop responding to them.

I've lost interest in your long-winded resopnses that overlook very simple concepts that can easily be expressed in a single sentence, so please don't be offended if I stop responding to them.
2.6.2007 12:00am
Erisian23 (mail):
Prof. Volokh:

>> A requirement that people not allow their bodies to be media for unwitting transmission of deadly diseases strikes me as quite compatible with a generally libertarian perspective on the world.

Mon capitaine, I respectfully believe this is a case of improper framing creating a straw man. I haven't heard any of the mandatory vaccination challengers claim a right to unwittingly broker disease. Please allow me to reframe it:

A requirement that people be injected with a helpful chemical cocktail to protect themselves from their future behaviors without regard for their own personal moral, ethical, familial, or cultural (or even patently irrational) beliefs is incompatible with a generally libertarian perspective on the world.

A socially beneficial "mandatory" law with an easy opt-out is clearly an area where a libertarian paternalist and a core libertarian can find disagreement. But if the law was truly mandatory and the dog had bite, I suspect even the libertarian paternalist crew might split in disagreement given the way such a law would trample over individual rights and particularly religious and cultural beliefs.

>> and especially a claimed freedom from getting your underage children immunized

When a matter involves children, libertarians generally believe the right of decision defaults to the parents or guardians, and not automatically to the gov't without clear cause. If we agree on this, then the fact that this involves children on its own says nothing about a need for gov't coercion, and yet in context the emphasis on "underage children" seems to imply the gov't ought to act in loco parentis without establishing the grounds for it. Perhaps I'm just reading too much into this part of the paragraph, though I'm at a loss for a better interpretation.

>> bodies to be media for unwitting transmission of deadly diseases

Complicating the issue, how a disease is transmitted can potentially matter more than its effects. If we generally accept that the harmful condition cased by a disease outweighs an individual's right to choose and assume risks, regardless of the mode of transmission, would exercise this general principle when the mode of transmission is hereditary? Why not? For example, atypical mole syndrome (dysplastic nevi) is somewhat similar to HPV: the primary symptom is "bumps" (moles in this case), it increases the risk of deadly cancer (melanoma), and it is communicable.

The primary distinguishing factor for our purposes is the mode of transmission -- it's genetic vs. sexually transmitted (yes, there's an easy punch line there). Should we mandate DNA screening and therapy to protect children from being the unwitting recipients? That would be consistent with "not allow their bodies to be media for unwitting transmission of deadly diseases". Is DNA sacrosanct but the resultant bloodstream and immune system are not? I don't mean that as a snark -- you're a widely respected and frequently referenced scholar and I am genuinely interested in knowing where your proposal would draw the line on government coercion and interference with my and my children's bodies.
2.6.2007 12:20am
Reg (mail):
This is a rather disappointing post.

"remember that HPV can be spread even among people who are about as sexually constrained as can be expected."

Wow, I disagree. There are many who live much more sexually constrained lives than Volokh expects. Volokh's argument seems to hinge on this. The number of individuals who are more sexually restrained than expected can be ignored; that is, those who married as virgins and only have sex with each other, or never have sex, don't matter. The state can force them to go through the trouble and expense of vaccination even though their behavior will not expose them to any risk. These individuals are like those who live in caves or hermetically sealed bubbles when considering the merits of vaccination against airborne disease.

Here's a different scenario that illustrates why conservatives find this reasoning offensive. Suppose there were a virus that was easily passed through sharing wine glasses, and in no other way, so that it frequently was spread by those taking communion at a church. A vaccine was created to stop the spread of the virus, and made mandatory.

Those who don't commune are upset that they have to bear the cost and trouble of being vaccinated against a virus they are very unlikely to get, though it is not inconceivable that they might share a wine glass with a person at some point in their life who has also shared a wine glass with some other person who might be infected.

It seems to be very unlibertarian to say that all should be required to be vaccinated against the virus, because careful behavior can prevent obtaining it. I think the same is true in the case with HPV. There are a lot of us out here who have only one partner, and do not wish to go through the cost and trouble to prevent something that we are very unlikely to get.

But because those who are sexually restrained are insignificant, their liberty interests can be ignored for the benefit of all those more normal, less sexually restrained individuals.

This isn't libertarian.
2.6.2007 12:25am
Elliot123 (mail):
Can someone tell me how any parent knows his/her ten-year-old daughter will be a virgin until age eighteen? Likewise, can anyone tell me how any parent knows with certainty that his/her daughter is a virgin? This would be a wonderful study. Parental expectations could be contrasted against the girls' behavior.

So, three questions for musing only.

1) What percentage of parents would say their 10-year-old daughter will be a virgin at 18?

2) What percentage of group #1 wll be right?

3) What percentage of 18-year-old girls will tell the truth?
2.6.2007 12:37am
Kovarsky (mail):
There's an undercurrent of "tough luck" to a lot of these comments that is a little revolting. Yes, people should practice safe sex, screen the sexual history of their partners, and the like. And yes, it is perhaps a "burden" that we impose on the "innocent" in the interest of our society's less responsible constituents.

Nobody seems to want to assert that forced vaccination for airborn pathogens would violate an individuals rights (whatever that means), so Erisian23 and the like have taken refuge in a terrifically crabbed distinction between "reasonable" and "unreasonable" risk-taking behavior. Libertarianism, as I've studied the concept for the last 14 or so years, admits to no such distinction.

The issue, as Eugene framed it on the post, seems to be whether libertarianism housed some meaningful objection to the policy. The answer is, of course, no. Libertarianism allows for government intervention where there is severe market failure - of precisely the sort present here. Libertarianism does not allow for government intervention where there is a market failure "facilitated only by reasonable risk-taking behavior." Libertarianism is, by its nature, and absolutist impulse - it admits to no subjective evaluation of what "reasonable" justifications would look like.

None of this is to say that a government "should" mandate vaccinations. There are perfectly good consequentialist arguments against it. How much does it cost? How intrusive is it (the genetic versus sexual transmission question)? Or, my personal favorite, how reasonably can should we expect non-market forces to correct for it? All of these are valid questions, but they are NOT valid libertarian ones. If that's what libertarianism "means to you," that is swell. But those tend to be distinctions that libertarianism, as taught in most of educational institutions, eschews. To make such arguments under the guise of libertarianism is to gore that term beyond all academic recognition.
2.6.2007 12:52am
Kovarsky (mail):
Bobby Nozick just called. He wants his theory back.
2.6.2007 12:54am
Kovarsky (mail):
Incidentally, I meant to strike the first paragraph of my 12:37 post. It was part of another post that I scrapped, and it doesn't make sense in light of the rest of the one I put up there.
2.6.2007 12:56am
Kovarsky (mail):
Elliot123,

I imagine a graph of actual chastity versus parentally estimated chastity looks somewhat like a target recently riddled with buckshot.
2.6.2007 12:59am
Kovarsky (mail):
Among the consequentialist elements most strongly favoring the Texas proposal (by Republican, libertarian governor Rick Perry):

(1) HPV causes 70% of cervical cancer
(2) 11-12 year old girls is where scientists have determined the vaccine will be most effective
(3) The Texas health care system is affected disproportionately (in relationship to other states) by the incidence of cervical cancer
(4) The vaccine has been 100% effective in clinical trials
(5) parents can opt out for religious reasons

You don't believe me, here.

So basically, you're free to get a cheap, mandatory vaccine, protect your daughter in the process, or you can invoke some mortally disfigured strain of libertarianism so that you can instead pay thousands of dollars in insurance premiums to subsidize treatment of cervical cancer victims whose afflication was enabled by precisely the wilfull blindness you defend here.

Sometimes political rhetoric really can cause people to lose all touch with reality.
2.6.2007 1:30am
Erisian23 (mail):
Kovarsky:

>> I'm also afraid that some of what I'm saying is getting lost in translation.
>> I've lost interest in your long-winded resopnses that overlook very simple concepts that can easily be expressed in a single sentence, so please don't be offended if I stop responding to them.

Please accept my apologies for wording my closing line so *****ishly. I was frustrated because I suspected I wasn't getting your point and you weren't replying to what I'd said with appropriate corrections to right my understanding. This response is spot on and I think I "get" it.

>> I'm just saying that "libertarianism" doesn't furnish a particularly compelling objection, because vaccination is a quintissential market failure. The government may be in a sub-optimal position to correct that failure, but that's a utilitarian question.

Please allow me to furnish a particularly compelling objection: Mr. Smith is a devout Christian and sincerely believes STDs are part of God's plan and are His way of encouraging people to behave a certain way. He further believes that mankind's attempt to reduce the penalty is sinful and he opts not to vaccinate his daughter as a result.

You and I personally believe Mr. Smith has come to a poor conclusion. But he's living his life according to his religious beliefs, a Constitutionally protected behavior (with exceptions; no right is inviolate). And the default libertarian position is to "preserve choice".

I agree that vaccinations generally represent a "quintessential market failure." Just the same, the CDC can recommend vaccination against hepatitis A, hepatitis B, polio, mumps, measles, rubella, diphtheria, pertussis, tetanus, HiB, chicken pox, rotavirus, influenza, meningococcal disease, and pneumonia; this does not lead us to immediately conclude that all of these vaccinations ought to be mandatory.

>> Questions about "where does it end," "how do we draw the line," etc. are all perfectly reasonable questions, and also ones that libertariansim is profoundly ill-equipped to address. That's my only point.

Libertarianism does address the point: if the negative externalities of Choice X outweigh the benefits of preserving choice in general (freedom from coercion, freedom of religion, etc.) and Choice X in particular, it can be outlawed (or conversely, made mandatory). Fraud and polio come to mind. If however the negative externalities (chicken pox, the common cold) do not outweigh the benefits, the vaccine should be optional.

The core libertarian position that my textbook gives is not that "the gov't should address any and all market failures"; rather "market failures that result in serious negative externalities should be addressed." This is a relatively small subset of market failures.

Consider, the BLS's "EMPLOYEE BENEFITS IN PRIVATE INDUSTRY, 2006" states that "Sixty percent of workers had access to retirement benefits, with 51 percent participating in at least one type of retirement plan." The lack of participation in a retirement plan is a serious market failure, however I'm unaware of any core libertarian ethic that allow for compelling participation for all workers. The typical libertarian stance is to allow any individual to prioritize current consumption over future consumption and then reap what they have sown 35 years down the road.

>> Although I admit I find talk of a parent's "right" to choose sub-optimal health care for their child, as an incedent to rearing it, to be a little disconcerting. You, of course, do not suggest this - but others do.

Though I personally agree with you, I object to "health care" the way you've used it. Your reference is only to physical health -- the mental and spiritual well-being of the child is also for the parent to factor in and decide on. I may not agree with Mr. Smith's conclusion, but it's well founded on his sincere religious beliefs and absent a showing of strong negative externalities (remember, our daughters were voluntarily vaccinated so their risk of cervical cancer has been eliminated), I'm inclined to support his right to make this (poor, imo) decision for his family. If his daughter disagrees, she has from age 18 to 26 to make her own choice.
2.6.2007 1:45am
Kovarsky (mail):
Erisian,

Before I respond in kind to your thoughtful post, I want to also apologize. When I feel unjustifiably attacked, I tend to unjustifiably escalate in return. I'm not always right in my assessment of what is "unjustifiable," but I'm more levelheaded given a little time. I certainly don't want to piss someone off or give a thoughtful person the impression I'm not thinking about what they're saying.
2.6.2007 1:49am
Eugene Volokh (www):
Wow, I am really impressed. (I realize that's sometimes said sarcastically, but this time I really mean it.)
2.6.2007 2:01am
Kovarsky (mail):
Erisian23

Please allow me to furnish a particularly compelling objection: Mr. Smith is a devout Christian and sincerely believes STDs are part of God's plan and are His way of encouraging people to behave a certain way. He further believes that mankind's attempt to reduce the penalty is sinful and he opts not to vaccinate his daughter as a result.

You and I personally believe Mr. Smith has come to a poor conclusion. But he's living his life according to his religious beliefs, a Constitutionally protected behavior (with exceptions; no right is inviolate). And the default libertarian position is to "preserve choice".


First off, I would concede the likely unconstitutionality of any law that imposed the vaccine over a religious objection. But that's a constitutional concession, not a libertarian one. Beyond that:

(1) I don't think libertarian rules applicable to adults translate frictionlessly into rules for those adults' decisions over their children. Parents acquire decision-making authority over their children by force of the constitution, not by force of any libertarian thought with which I am familiar. I think all the practical concessions that libertarianism has to make to resemble a workable political theory (increased state authority over the mentally incapacitated or retarded) apply with equal force to children. I can see the argument that if children have diminished capacity, that it should be parents, not the state, making choices for them. I just think that's a significantly weakened argument, when compared to the traditional justification for government abstention.

(2) To be honest, I'm not sure we can get past our priors here, because this hypothetical illustrates why I think libertarianism problematic. I'm not sure why it should ever be read so aggressively as to authorize a parent to gratuitously subject a child to illness. But if the question is just what a pure libertarian could say, I agree that if the child's autonomy is subsumed by the parent's then there's not a whole lot of justification there other than the more traditional externality-based arguments applicable to adults. The one place where I think I have wiggle room here is that I do think that to the extent that the autonomy of a child's choice is premised on some ability to abide by an implicit agreement to behave responsibly, that implicit agreement is less reliable for the child than it is for the safe-sex practicing adult.

I agree that vaccinations generally represent a "quintessential market failure." Just the same, the CDC can recommend vaccination against hepatitis A, hepatitis B, polio, mumps, measles, rubella, diphtheria, pertussis, tetanus, HiB, chicken pox, rotavirus, influenza, meningococcal disease, and pneumonia; this does not lead us to immediately conclude that all of these vaccinations ought to be mandatory.

I agree with this. What I guess I said somewhat inartfully was that a libertarian's objection to this has to be all or nothing. I don't see much room for him to parse the different illnesses (although the "extreme market failure" definition below might allow you to). It is in fact my belief that we should distinguish between the candidates for mandatory vaccination that leads me to reject the more categorical method of libertarian thinking here. (You might have a hard time believing this, but I self-identify as a libertarian).

Libertarianism does address the point: if the negative externalities of Choice X outweigh the benefits of preserving choice in general (freedom from coercion, freedom of religion, etc.) and Choice X in particular, it can be outlawed (or conversely, made mandatory). Fraud and polio come to mind. If however the negative externalities (chicken pox, the common cold) do not outweigh the benefits, the vaccine should be optional.

Again, I agree. Suffice it to say I think we disagree about how this math plays out in the mandatory HPV vaccine context.

The core libertarian position that my textbook gives is not that "the gov't should address any and all market failures"; rather "market failures that result in serious negative externalities should be addressed." This is a relatively small subset of market failures.

I'm not sure I agree with your definition. Obviously any theory with a de minimus exception is dicey, but I would admit to the fact that we can't justify government coercion where the market failure is de minimus (but don't ask me to define de minimus!). I don't quite understand why the state - especially if the state is just an organ of the people - cannot assert interests of those meaningfully and negatively affected by a regime that respects autonomous decisionmaking. In order to buy into that, you seem to have to agree that state coercion is somehow worse than private coercion (by my definition, the involuntary assumption of marginal risk by those burdened by the externality). I don't really buy that argument, but again, that's a prior and I'm not sure either of us wants to hammer that out here.

Consider, the BLS's "EMPLOYEE BENEFITS IN PRIVATE INDUSTRY, 2006" states that "Sixty percent of workers had access to retirement benefits, with 51 percent participating in at least one type of retirement plan." The lack of participation in a retirement plan is a serious market failure, however I'm unaware of any core libertarian ethic that allow for compelling participation for all workers. The typical libertarian stance is to allow any individual to prioritize current consumption over future consumption and then reap what they have sown 35 years down the road.

I think we can find some common ground here. I don't think the state should be in the business of discounting future consumption. These types of cognitive failures are distinct from "externalities," and I don't think the state has any right to force people to conform to what it considers to be a rational mix of current and future consumption.

Though I personally agree with you, I object to "health care" the way you've used it. Your reference is only to physical health -- the mental and spiritual well-being of the child is also for the parent to factor in and decide on. I may not agree with Mr. Smith's conclusion, but it's well founded on his sincere religious beliefs and absent a showing of strong negative externalities (remember, our daughters were voluntarily vaccinated so their risk of cervical cancer has been eliminated), I'm inclined to support his right to make this (poor, imo) decision for his family. If his daughter disagrees, she has from age 18 to 26 to make her own choice.

There are a lot of things I disagree with here, but I'll limit myself to the the idea that any disagreement may be corrected by the daughter between 18 and 26. Unfortunately, the daughter may already have been exposed before she's reached the age of 18. I agree that, in a world were everyone were instantaneously offered the chance to "opt in" to vaccination, it shouldn't be mandatory. In those situations, I agree that the risk is more sensibly allocated to the irresponsible person who fails to get the vaccination. But because that's just not a plausible background assumption, you run into problems involving an assumption that others can plausibly defend against HPV risks.
2.6.2007 2:15am
Erisian23 (mail):
Kovarsky:

>> So basically, you're free to get a cheap, mandatory vaccine, protect your daughter in the process, or you can invoke some mortally disfigured strain of libertarianism so that you can instead pay thousands of dollars in insurance premiums to subsidize treatment of cervical cancer victims whose afflication was enabled by precisely the wilfull blindness you defend here.

This mingles two issues: First, should the vaccine be mandatory and second, should the vaccine be subsidized, whether it's mandatory or not.

Should the vaccine be mandatory?

Should the gov't tell Mr. Smith his daughter will be vaccinated regardless of his (rational or irrational) objections? Well, our daughters will be inoculated and so the negative externalities are not serious enough to merit a truly mandatory law. Texas seems to agree:

Parents' Rights. The Department of State Health Services will, in order to protect the right of parents to be the final authority on their children's health care, modify the current process in order to allow parents to submit a request for a conscientious objection affidavit form via the Internet while maintaining privacy safeguards under current law. from Gov. Rick Perry's Executive Order RP65 - February 2, 2007

In essence, society decides that because parents are too irrational to care for their daughters' well-beings, the gov't should push them down that path. We assume (probably correctly) that a large number of parents would not voluntarily go to their doctor for this vaccine for their kiddos absent a gov't prodding. But rather than a blanket paternalist mandate, Gov. Perry kindly goes the libertarian paternalist way, aka the "opt-out" route.

Taxing my wealth to fund gov't paternalist proddings is not, afaik, particularly libertarian. If you disagree, I would genuinely appreciate if you would site an authoritative libertarian source that supports mandatory HPV vaccinations. Alternatively, if I've argued on non-libertarian principles, please correct me. If "the gov't should fix market failures without regard for liberty" is the correction, again I'd like an authoritative libertarian sourcing on that statement.

Should the vaccine be subsidized?

Should the gov't take a portion of your wealth to pay for my daughter's protection from cervical cancer by subsidizing her HPV vaccine? I think I know the libertarian response to this, but now I'm guessing you won't agree with me.

>> you can invoke some mortally disfigured strain of libertarianism so that you can instead pay thousands of dollars in insurance premiums to subsidize treatment of [...] cancer victims whose afflication was enabled by precisely the wilfull blindness you defend here

I've heard this same argument used for banning cigarette smoking and other similar tobacco uses. What's more, I'll even add this: "the decision to smoke is fundamentally irrational because it is extraordinarily self-destructive for a minimal benefit", in addition to the societal costs. But if I now suggest that banning smoking is not a libertarian stance, despite the harms, will I be preaching from a "mortally disfigured strain of libertarianism"?

FWIW -- I'm not a very good libertarian, as you can easily surmise. For example, I'm willing to pay more in taxes to subsidize the treatment for young girls and I'm willing for you to pay more too. But in my defense, my inconsistent libertarianism is balanced by being a very bad liberal in other situations (ask me sometime about gov't mandated one-size-fits-all wage floors in non-monopsony markets that effectively "tax" the creation and continuation of low wage jobs and disproprtionately benefit rural Kansans while underserving urban areas like San Diego.) :-)
2.6.2007 2:58am
Lev:

(4) The vaccine has been 100% effective in clinical trials


Picking a nit - "The vaccine, which targets four HPV types believed to cause more than 70 percent of cervical cancer cases "

The vaccine is effective against the HPV types that it is effective against, but not others.
2.6.2007 3:18am
Kovarsky (mail):
Ersian23,

Unfortunately I'm in the central time zone and I have to go to bed. I have to file a motion tomorrow. I'll try to respond then.

Although I think you might appreciate that, as a smoker for about 15 years, nothing sets my libertarian instincts off more violently than smoking bans.
2.6.2007 3:35am
Erisian23 (mail):
Kovarsky:

I think you're correct, this isn't the best forum for us to compare our strains of libertarianism. In any event, it sounds like we agree on a lot more than I initially thought. I understand the "de minimus" exception issue you raise, but since we're going to have a gov't (I'm not an anarchist), "de minimus" is a good (though not only) word to be on everybody's lips.

I think another sticking point is we're discussing this on the topic of vaccinations. Once I rationally decide to become vaccinated, I am largely immune to the consequences of someone else not vaccinating (insurance premiums aside). The argument for mandatory vaccination is, as I see it, not to relieve the negative externalities of a market failure (Merck can pay for their own advertising), but to correct for the irrationality of a large subset of the population by taking away my (unexercised) right to decide what chemicals will and won't be pumped into my bloodstream. If everyone doesn't already know an HPV vaccination is available and it's being billed as "a cancer prevention", Merck has failed and the market has failed. That doesn't lead me to conclude that mandatory vaccinations are the answer. I'd personally prefer the informational route (the way I was offered the chicken pox vaccine by our pediatrician), but I'm liberal enough to not whine too loudly about "mandatory but with opt-out, so not really mandatory" like Texas is doing.

Stepping back, part of my (potentially flawed) understanding of libertarianism includes the idea of pushing the decision making down to the lowest level possible. Prefer state solutions over Federal, and county over state, and community over county, family over community, and individual over all ("when and when practicable"). I'm a no doubt a poor libertarian because I do allow utilitarian and economic models as well as my own morals and ethics to support laws that erode or trample over individual liberties. But I don't argue that my support for Social Security is well founded on principles of liberty, nor do I believe the gov't acting in loco parentis to mandate HPV vaccination, which can carry real psychic harms to some individuals and their families, is well founded on principles of individual liberty.

From my libertarian POV, I don't ask the gov't to protect me from myself (absent insanity) or even my children from me (absent clear abuse). I ask the gov't to protect me from everyone else and I accept that the gov't will protect everyone else from me. If you and yours can vaccinate, how is mandating the vaccination of me and mine protecting you in any way? I can see utilitarian, economic, and paternalist arguments for it, but I'm afraid I'm not seeing how core principles of individual liberty support taking away the freedom to control what is injected into my body.

I've got to get to bed - thanks much for elaborating on your ideas! I'll be back tomorrow to see if you've offered some more course corrections.
2.6.2007 3:43am
Kovarsky (mail):
I just have to confess that I've always wanted to say "Bobby Nozick."
2.6.2007 3:50am
Ignorance is Bliss:
As a previous commenter mentioned, what about boys? If the legal justification for mandatory vaccines is the benifit to the population as a whole, then isn't it sexual discrimination to only require girls to get the vaccine? Wouldn't such a law be unconstitutional?
2.6.2007 8:07am
J. F. Thomas (mail):
Simply put, I don't give a damn who you screw -- just don't try to use to State to interfere in my life or my child's to protect yourself from the consequences of your lifestyle choice.

I bet you would give a damn who I screw if I was screwing your daughter.
2.6.2007 9:24am
Kovarsky (mail):
JF Thomas -

Thanks, I just let that one go.
2.6.2007 9:42am
Spartacus (www):
I am a parent in Texas of an unimmunized child (male, so the HPV vaccine doesn't directly qaffect me). He is not yet in school, but I already have the forms to submit so we can get him in, and from what I've heard from other parents, while some schools are ignorant of this right, they usually comply after being referred to the website.
2.6.2007 10:03am
MDJD2B (mail):
Prof. Volokk,

Cervical cancer is the tip of the iceberg. In the United States, the majority of women have clinical manifesttions of HPV at some point in their lives. This usually is manifest by an asymptomatic pre-cancerous condition detected by abnormal Pap smear. The diagnosis is confirmed by biopsy (a somewhat painful and stressful procedure). Millions of these are done in the US each year.

Those women whose lesions are relatively advanced, or whose mild lesions do not regress require a LEEP or cold knife cone biopsy. These are minor operations usually done under anesthesia. They require a few days off work and several weeks of sexual abstinence following the procedure. Perhaps 5% of reproductive age women who have these done have fertility problems afterwards.

On the other hand, the Merck vaccine only is effective agianst strains accounting for 70% of cervical cancer. It is said that another company is working an a vaccine that immunizes against additional strains.

Finally, the Merck vaccine immunizes against the two strains of HPV that, while not associated with cancer, produce all genital warts. This provides a rationale for immunizing males. Oncogenic strains of HPV are associated with penile cancer, which is extremely rare. They are also associated with anal cance. This is an uncommon cancer with virus transmission probably being through homosexual sexual activity most of the time. But significant numbers of men get genital warts.

I posted this on the last post-- sorry.

I hope this helps.
2.6.2007 10:57am
Mark P. (mail):
I appreciate the comments on this thread greatly, and I don't want to misdirect it (So please delete this post, EV, if you deem it unhelpful.). Suffering from the lawyer's disease, however, I'm also concerned about process. It's clear from the above that reasonable minds can disagree about the propriety of this mandatory program (if anything, just to fight off Merck's attempt to hijack the organs of government for its own profits), so I would expect such "mandatory" governmental dictates to come from the Legislature rather than the Executive. That did not happen in Texas; the governor has attempted to issue orders compelling his fellow citizens to perform an act without going through the legislative process. Does anyone think that's a proper mechanism, under Texas and federal law? Also, for the libertarian theorists out there, what is the best political mechanism for implementing/protecting libertarian ideals? Thanks for all responses.
2.6.2007 11:10am
Seamus (mail):
I wonder how far this "conscientious objection" can reach. Several years ago, I found that a friend of mine (an Episcopal priest) was exercising the option not to pay social security tax because she was claiming a conscientious objection thereto. When I expressed some scepticism as to whether she could in good faith assert such an objection, her husband responded, "It's always a sin to piss away money. Not what we'd call 'good stewardship.'" I had to confess he had a point there. I think the same rationale would apply to the HPV vaccine, for those not falling into high-risk categories.
2.6.2007 11:16am
Thorley Winston (mail) (www):
I bet you would give a damn who I screw if I was screwing your daughter.


I'm not sure Professor Volokh appreciates you making lewd comments about an eleven-year old girl on his blog. I'll leave it up to his discretion whether to forward your comment and IP address onto the proper authorities.
2.6.2007 11:42am
SeaLawyer:

As a previous commenter mentioned, what about boys? If the legal justification for mandatory vaccines is the benifit to the population as a whole, then isn't it sexual discrimination to only require girls to get the vaccine? Wouldn't such a law be unconstitutional?


The vaccine does not work on males, also there is no test for HPV for men. For people that want good accurate info on HPV you can go here.
2.6.2007 12:01pm
Kovarsky (mail):
Mark P.,

so I would expect such "mandatory" governmental dictates to come from the Legislature rather than the Executive.

I would agree with you as a general rule, but the situation is a little more complicated. The legislature has already required that students receive certain vaccines to enroll in public school. They then legislatively provided a mechanism by which the executive could add to that schedule. Perry just issued an executive order adding HPV to that vaccine schedule. If the legislature has already determined that a number of vaccines can be required for enrollment, I'm not sure that the executive adding one to the list - legally, under the legislation - presents the sort of countermajoritarian difficulties you seem to be invoking.
2.6.2007 12:02pm
markm (mail):

(1) HPV causes 70% of cervical cancer
(2) 11-12 year old girls is where scientists have determined the vaccine will be most effective
(3) The Texas health care system is affected disproportionately (in relationship to other states) by the incidence of cervical cancer
(4) The vaccine has been 100% effective in clinical trials
(5) parents can opt out for religious reasons

Don't forget:
(6) The clinical trials were mostly conducted on women over 16. That I can find, the vaccine hasn't been tested extensively on 11-12 year olds, for safety as well as effectiveness.
(7) No treatment, including vaccines, is perfectly safe, and the ill effects may take decades to turn up.

That said, if this had been around when my daughter was 11, I would have considered the risks and chosen to have her vaccinated - at 14, not at 11, (assuming some major new risk to the vaccine didn't appear in those three years) because I'd put the chance of sexual activity before 14 at virtually nil, but I (correctly, as it turned out), didn't expect her to reach 17 as still a virgin. But that should be the family's choice, not the government's. (Nor is #5 a sufficient escape hatch - I'm an atheist.)

I'd think that if there's an appreciably chance your 12 year old daughter is having sex, that's a big failure as a parent, although a large part of it might be as simple as living in the wrong neighborhood. That brings up another point about this: does Texas expect parents who, due to poverty, have to live in those neighborhoods, to pay $360 for these shots?

I do support the government paying for voluntary vaccinations, assuming that it's been shown that sufficient vaccinations for herd immunity to damp down outbreaks do not occur without intervention. Although that still involves the use of force (to take money from taxpayers), it's less intrusive than a mandatory vaccination. I would support mandatory vaccinations in cases like smallpox and polio where the risk/benefit ration was obviously lopsided in favor of vaccination and the unvaccinated imposes a serious unchosen risk upon others. But I don't see that either of those conditions is well-proven for HPV.
2.6.2007 12:32pm
Duncan Frissell (mail):
There's a difference between mandatory immunization and mandatory payment for immunization. I don't lik the $360 tax.

Note that the Texas law is not really mandaory since it only applies to those entering the 6th grade. Homeschoolers would be exempt as they are from all of these 'mandatory' immunization rules which are school-admission based.

I think the case for mandatory immunization is weakest in the area of risk since those who are immunized are not particulaly at risk from the disease and only the un-immunized are in a practical sense.
2.6.2007 12:33pm
TJIT (mail):
Kovarsky,

You said
The legislature has already required that students receive certain vaccines to enroll in public school.
I'm pretty sure all of the other vaccines were mandated after studies and recomendations by the cdc, pediatricians, and other scientific / medical groups. This vaccine is being mandated because of Merck's lobbying efforts.They are creating a market for their product through the use of raw political power. This a another example of rent seeking and it sets a very bad precedence in the field of medicine.
2.6.2007 12:40pm
Laurie Lynn:
On the other hand, the Merck vaccine only is effective against strains accounting for 70% of cervical cancer.

I don't think people are arguing that the vaccine is a not a good idea. The argument is whether government should mandate this.

If "because its good for you" or "it will save lives and pain" or "it will save taxpayer money" etc are the arguments for governmental force in health care, there really will be no end to the Parental forces of government.

None of us can catch HPV from going to work / school / public places with others who have this virus. That was the original reasoning behind mandatory (by Government) vaccines for Polio, Diphtheria, etc.

Even if the Government does not mandate this vaccine, it will be available, and many (most?) parents will choose to protect their children from this virus. This is not a choice between protection or non-protection. It is a choice of whether to use the full force of Government to make people to do what we believe good for them.

The argument was made above that we needed Governmental force to because other people may infect our child. (Person A's behavior impact's Person B, C or D's health) But not, apparently, if Person B, C and D are vacinated. They are safe. And person A can do whatever they want and the vaccinated people will be safe. Then at this point, its just a question of cost. And when cost is the reason for Governmental regulation of our behavior, we will lose our freedoms.

Do you think anyone would have believed me 10 years ago (5 years ago) if I said that New York was going to ban Trans Fats from restaurants? Trans fats are not inherently dangerous. It is just bad for your health to consume them over the long run. So they made a law that protects people's health and saves taxpayer money.

And do it begins....
2.6.2007 12:44pm
TJIT (mail):
Kovarsky,

You said
So basically, you're free to get a cheap, mandatory vaccine
It is not cheap, see this link Interesting Article on Cervical Cancer Vaccine Economics

A comment on that site makes this point
But folks should also pay attention to the fact that Merck is openly funding a lot of drives in state legislatures to make the vaccine mandatory for schoolgirls. Talk about the abuses of direct-to-consumer advertising; this is direct-to-consumer legislating. Paternalism, anyone?
2.6.2007 12:49pm
lucia (mail) (www):
With regard to mandating the vaccine for males, I think the problem is not so much that it doesn't work for males as it hasn't yet been tested on males and doesn't have FDA approval for males.

If I'm not mistaken, the way things appear to stand in Texas is the government makes the vaccine 'mandatory', but what that actually means is that parents must either submit proof the child is vacinnated (which involves a trip to a doctor plus providing paperwork to the school) or they must obtain forms from the state, fill it out and provide the school that paperwork expressing their objections.

I lean libertarian -- but I can't claim to be an honest to goodness libertarian. Still, as it stands, I think requiring parents to file paperwork about vaccines in order to permit their kids to go to public school is a rather modest intrusion compared to other things. Forcing parents to educate their children is a much larger intrusion.

After all, what if a parent just wants their 11 year old kid to stay home and baby sit? What if they don't want the child to learn to read and discover there are others "out there" who hold radical notions about anything and everything?

Like someone well above on the thread, I'd sort of like to see some sort of provision to vaccinate girls who want the vaccine despite parental objections. Is there some truly libertarian argument why a 16 year old girl should be prohibitted a vaccine because her parents object. (If so, is there a strong libertarian argument why a 16 year old girl should be forbidden to take calculus if her parents object?)
2.6.2007 12:49pm
Elliot123 (mail):
lucia,

Unfortunately, many folks insist it is their right to impose their personal ignorance on their offspring. "I never needed calculus, neither do you. Now get dinner ready."

I'd say the kids deserve some protection from their elders.
2.6.2007 1:43pm
Anon. Lib.:
I have to say that I find the anti-vaccination arguments to be pretty underwhelming. Leaving aside herd benefits for the moments, we are really talking about three populations that are being harmed:
(1) Girls who remain virginal until marriage (or forever) and marry virginal boys who never cheat and are compelled against their will to pay $350 and be vaccinated; and
(2) Girls who reject their parents' views on sexuality (at least during adolescence) but are exposed to the risk of acquiring HPV because their parents refused to have them vaccinated.
Now, it strikes me that the freedom and dignity of the second group is just as, if not more, impacted then the first group. The harms to the first group --- a (mostly)unnecessary vaccination (after all these girls might still be raped or their partners might cheat, or divorce them or die) and, perhaps, a $350 fee --- pale in comparison to the risk of cervical cancer, the danger of transmitting the disease to their intimates, and a disincentive to have sex as they see fit (especially if they become infected).
2.6.2007 1:43pm
Anon. Lib.:
Sorry. I meant to say two populations.
2.6.2007 1:51pm
Elliot Reed:
Anon. Lib.: amen. A lot of people on this list seem to have a view of children as property.
2.6.2007 2:19pm
Elliot123 (mail):
Anon,

I think there really are three populations in this. Many people are most concerned with the parents' rights. They might be damaged by the $350, but I see little damage beyond that.

An interesting question from the libertarian perspective is the sliding scale of rights. At what point is it the right of the girl to decide for herself if she will have the vaccination? And if there is no cost to the parents, at what point do they have no say in the matter?
2.6.2007 2:23pm
David Chesler (mail) (www):
By the way, is this the same HPV which is much more prevalent in women who have uncircumcised partners than in women who have circumcised partners? No telling where that calculus could lead...

Can HPV be transmitted by boy-boy or girl-girl sex?

I've got a daughter in the sixth grade. My wife and I have been wondering about this vaccine. It's experimental, and we don't know what the long-term effects are, or the long-term efficacy. (HPV isn't a problem in and of itself, cervical cancer is.) But when states start to mandate it, our initial reaction is to resist.

And tying it to public schooling makes no sense. Little Janey might cough and give the mumps to her classmates, but the nexus between her current classmates and the partners of her partners is just way more tenuous.

(In my family we've got those parental speech issues. I was raised with lots of biology. My wife thinks childhood innocence should be preserved. At least unlike my sons, my daughter watches Animal Planet a lot. And she's not sure about boys, but she's sure kissing is icky, and sex is ickier, and pregnancy/childbirth the ickiest of all, so we've got a few years yet to figure it out.)
2.6.2007 2:30pm
lucia (mail) (www):
Elliot123;
I agree with you; some kids need protection from their parents!

Anon. Lib,
I also have to wonder-- as a woman, how exactly do the virgin prospetive brides go about testing their fiances for virginity before marriage?

And since the male virginity test is a bit of a challenge, how much does it cost to test a prospective husband for HPV? Then, after marriage, do the wives just trust the husband unilatirally and never test again?

If they don't trust their husband implicitly for whatever reason, are they so marvelously diplomatic that they can ask their husbands to be tested regularly? ( I've been married over 20 years, get along well with my husband, and I think we can communicate pretty well. So why does "Honey, can you show me the results of your annual VD test?" sound to me like something that can only happen easily on in fiction? W )

It seems to me that even for a measureable fraction of the anti-premarital sex virgin-bride young women, the $350 spent on the vaccine might be well worth the money! (Though maybe her parents would rather avoid spending it for some reason.)
2.6.2007 2:34pm
Mikeyes (mail):
As a physician I see the benefits of this vaccine, after all, cervical cancer and it lesser versions are the only viral illness treated with serious surgery (warts can be burnt off.)

There are about 35 subtypes of HPV out there and about half of them are the essential infection leading to cervical cancer. About 10,000 women a year are found to have the cancer form but several million are exposed to one of the subtypes of HPV every year and by the time a woman reaches 40 she has about an 80% chance of exposure. Most women have a benign course of infection with no symptoms and few sequelae, but the cancer takes years to develop and the more exposure you have, the more likely you will have some form of the disease be it an abnormal Pap smear or full blown cancer.

So far, in un-exposed women, the vaccine is 100% successful in preventing the infection by the two most common subtypes for cancer and the two most common subtypes for venereal warts. These subtypes cause about 70% of the illnesses respectively so there is still some risk that another subtype might cause a problem. Studies have also shown that even if you have been exposed to one of the subtypes, after the vaccine you are immune to the others.

This is not an argument one way or the other for mandatory vaccines, but it does show that the exposure to HPV is neither "voluntary" nor is it rare. The chain if infection is such that a person who has only one sexual partner is still at risk, even if their spouse has had only a few exposures in the past.

As an aside, just because the vaccine does not have FDA approval it can still be used in males. About 65% of all prescritions are "off label." The cost of getting an existing medication approved for another illness or state of an illness is very high and not worth the effort in many cases. Aspirin is very helpful in keeping blood thinned but is not approved for that as far as I know, yet there is a large body of literature that tells us to use that drug.

Most of this information Merk would be glad to tell you, at an expensive dinner if you wished, but the science seems to be pretty good. Personally I have not seen a drug rep since 1991 and don't even use the pens. I have told my nurse to tell the reps that if they even talk to me I will never use their product. And I would approve of my young grand-daughters getting this product.

(Just for Eugene, an argument against ad hominem and for Authority ;'} )
2.6.2007 2:41pm
Laurie Lynn:
Anon. Lib.: amen. A lot of people on this list seem to have a view of children as property.

No, we view Government as a growing, oppressive force.

I am perfectly capable of acting in my child's best interest. I care far more about my child than ANY governmental official. Even Hillary or Grandma Nancy.

Government's soft paternalism will soon turn to hard paternalism.

"Because its a good thing and would benefit people" is not a strong argument for Governmental enforcement of an idea or action.
2.6.2007 3:28pm
Kovarsky (mail):
No telling where that calculus could lead...

Yeah, and at their extremities, utilitarian calculations logically imply us to throw weak people people to sharks out of boats to stop them from sinking. That doesn't mean that we write it off as a justification in other contexts.
2.6.2007 4:09pm
Kovarsky (mail):
Laurie,

I am perfectly capable of acting in my child's best interest. I care far more about my child than ANY governmental official. Even Hillary or Grandma Nancy.

No, but your interest in all the children that are not yours does not exceed that of the government and that, I take it, is the market failure argument.
2.6.2007 4:11pm
David M. Nieporent (www):
Consider, the BLS's "EMPLOYEE BENEFITS IN PRIVATE INDUSTRY, 2006" states that "Sixty percent of workers had access to retirement benefits, with 51 percent participating in at least one type of retirement plan." The lack of participation in a retirement plan is a serious market failure, however I'm unaware of any core libertarian ethic that allow for compelling participation for all workers. The typical libertarian stance is to allow any individual to prioritize current consumption over future consumption and then reap what they have sown 35 years down the road.
Regardless of what the appropriate vaccination (or retirement plan) policy is, can we please stop misusing the term "market failure"? "Market failure" does not mean "People made choices I disapproved of or didn't think were wise." "Market failure" does not mean "It would be good if everyone had X and yet some people can't afford X." A market failure is when the quantity of a good or service supplied by suppliers doesn't equal the quantity demanded by consumers. People not participating in a retirement plan, either by choice or for lack of money, is simply not a "market failure." People not getting vaccinated is not a market failure.

Market failures generally occur in the case of public goods, when there's a free rider problem. (Now, yes, in theory because of herd immunity there's a free rider issue with vaccinations, but herd immunity doesn't create 100% protection, so people still have an incentive not to free ride.)
2.6.2007 4:25pm
David Chesler (mail) (www):
at their extremities, utilitarian calculations logically imply us to throw weak people people to sharks

"Mandatory" circumcision, or even a campaign as strong as the "breast is best" campaign in favor of it -- closer to mandatory HPV vaccination, or closer to throwing people to sharks?
2.6.2007 4:40pm
Anon. Lib.:
Laurie,
It strikes me that you are casting this debate in terms of which authority should control how girls live: You or the government. Thats not a very freedom loving position. Girls have autonomy interests that are integral to them as individuals, including their sexuality, that should be respected. Girls have the right to decide if they value purity or if they like casual sex. Many people on this thread write as if the only autonomy interest at issue is a parent's right to raise their child as they see fit. But there is another interest at stake --- your child's right to choose the values and life he or she finds fulfilling. And most of the time in America --- even in evangelical households --- most children choose values that include adolescent sexual experimentation as well as lots of premarital sex. Allowing parents to prevent their daughters from being vaccinated just imposes unnecessary (and therefore cruel) costs on them. It is selfish, not libertarian.
2.6.2007 4:42pm
Kovarsky (mail):
David,

I'm not sure whether you're trying to give a lay or a technical definition of market failure. But the assertion that "not getting vaccinated" is not a market failure is incorrect.

A free rider problem arises with respect to public goods when an individual actor shoulders all the cost but captures only a fraction of the benefit of a particular type of production. National defense and lighthouses are the classic examples.

Here, there is a situation where society underproduces vaccination because potential consumers of the good (the vaccine) do not demand it at optimal levels because they do not capture the full social benefit of the vaccination (which accrue to those not party to the transaction).

Public goods imply market failure, but not necessarily vice versa.

Public goods have two elements, but both are not necessary to show failure; here's a formal definition of "public good" that appears in a recent law review article i wrote on copyrightable expression:

Public goods exhibit two distinctive characteristics: (1) nonrivalrousness, meaning that one person's consumption of an asset does not diminish its availability for another; [FN8] and (2) nonexcludability, meaning that the producer of an asset cannot restrict its benefits to *920 those who purchase it. [FN9] More colloquially, a public good is one with benefits that cost little to provide to and cost a lot to restrict from an extra person. [FN10]
2.6.2007 4:46pm
Brian K (mail):
Excellent description Mikeyes, I only wish you had said it a month ago before I had to hand in a report on HPV and the vaccination.
2.6.2007 4:58pm
lucia (mail) (www):
Laurie Lyn,
As I understand your most recent comment, is you object to this vaccinne because you worry about soft paternalism turning to hard paternalism.

Out of curiosity, do you object to compulsary education? (Defined as kids below 16 years of age must be given some sort of education which can take place in a public school, private school or home setting. )

Do you object to laws requiring parents to provide financial support for kids? (As in judges can require divorced parents to pay child support at levels mandated by the state-- as opposed to the levels that caring parent knows to be "correct". )

Do you object to laws permitting women from selling their babies? Or laws prohibiting kids from working long hours - even if those kids parents "know in their hearts those long hours will be character forming for the kids?

I'm also not a big fan of creeping paternalisms, and I prefer to have government leave the vast majority of choices to parents. We have all sorts of laws curbing what parents can do with their children, partly because the principle "I know what's best for my kid" doesn't always work out so well for the kids.

With regard to the HPV vaccine, I would really prefer if the girls themselves had some say. Specifically, I'd like them to be able to secretly overide their parents vetos, just as Texas currently permits the parents to overide the state 'mandate' by filing some paperwork.
2.6.2007 5:18pm
Laurie Lynn:
Where do you draw the line?
2.6.2007 5:46pm
lucia (mail) (www):
Laurie Lynn:
I guess you don't like to explain your position?

I think my questions was asking you where you draw the line or lines. Knowing where you draw it and why might help me understand your point.

So far, all I'm reading is you don't like this particular vacinne because people need to have sex to catch the disease.

Is sex the issue for you? Are polio shots ok with you? Or not? It's not clear from your posts.

I think the line with regard to children can be difficult to draw. It's for that reason that I'm glad the Texas law permits parents to opt-out. However, I'd like to see girls be able to get around their parents opt-out. After all, the girls ae the ones most directly affected by their own exposure to cervical cancer. Some 11 year olds are old enough to understand vaccinnation. I think nearly all 16 year olds are old enough to understand. Letting them over rule parents in this instance would be wise.
2.6.2007 5:55pm
Erisian23 (mail):
Kovarsky:

>> >> I am perfectly capable of acting in my child's best interest. I care far more about my child than ANY governmental official. Even Hillary or Grandma Nancy.

>> No, but your interest in all the children that are not yours does not exceed that of the government and that, I take it, is the market failure argument.

This is an argument in favor of a truly mandatory law. Even from a non-libertarian POV, the government acting in loco parentis is a very serious matter. Citizens expect the gov't to exercise this power judiciously. I suggest that "because some parents will fail to act for poor reasons, the gov't ought to act on behalf of all parents" does not meet the "judiciously" bar a free society ought to idealize. Are there any reasons to decline vaccination that are not inherently poor? Or can we safely dismiss a priori any and all objections of a parent and then coerce the behavior we want?

Consider a purposely contrived hypothetical: If "secret internal Merck documents" (ooh!) are released to the public by a whistleblower, which reveal a good part of the research leading to the HPV vaccine was based on...
* experimentation on live human embryos by scientists in Burma, or
* Milosevic's scientists operating on captured and imprisoned Bosnians, or
* otherwise in gross violation of American human medical testing ethics,
...would any of these lead to legitimate grounds for ethical exemption? If so, if we allow ethical objections at all, why would we disallow good faith moral or religious objections? As a matter of basic liberty and equality, I believe we ought to treat secular reasons on par with religious reasons, even (and especially?) religious reasons I've personally found to be theologically defective.
2.6.2007 6:12pm
Laurie Lynn:
I believe you were the one who said you did't like "creeping pateralism", but do not indicate what that means.

I find Government a necessary evil, but one that needs to be kept to a minimum. The standards for compuslory vaccination should be HIGH. Compulsory vaccination against a highly communicable desease that can be spread by casual contact (like polio) meets that high standard. To require vacinations for diseases that are not spread by casual contact does not, in my opinion, does not meet that standard. It has NOT A THING to do with my feelings about sex.

I would recommend the HPV vaccine, I think it is a good idea. I plan to vaccinate my child (assuming it is recommended by her doctor) But I would not vote to make is compusory.

I believe that I stated all this in earlier posts.

I think education is a great idea - for all children. Our government does a lousy job of provding good education. My daughter is in private school.

Now, what would be going too far for you? Where do you draw the line.
2.6.2007 6:26pm
Laurie Lynn:
Let me amend the above - I stated this case on another comment thread on this site.
2.6.2007 6:45pm
lucia (mail) (www):
Laurie,
Yes, I said I'm also not a fan of creeping paternalism -- and I got the impression you weren't when gave this as part of your objection to the Texas mandated vaccine:

Government's soft paternalism will soon turn to hard paternalism. You can scroll up and find your words.

I already said that with regard to this vacinne, I approve of Texas's version of "compulsory" which is not actually compulsory vaccination. What is compulsory is parents must show papers that either indicate the child has had the vacinne or that the parents object.

So, the only thing that is "compulsory" is filing paperwork. I see this as a modest intrusion given the importance of vaccination in general, and including this one specifically. The parent's right to avoid government oppression is maintained.

However, to ensure the child's liberty, I would like the state to permit the child to overrule the parents on this matter. I think the child's right should be seen as especially important as the child ages. The child is the one whose future health is put at risk. I see absolutely no reason parents should be able to over rule a 16 year old in this regard; I see little reason for overruling an 11 year old who wants the vaccine.

As to the more generally issue of governmental intrusion, I think you are misunderstanding the questions I am asking-- and the idea underlying them. I didn't ask the distinction of private vs. public school. I might ask that question if I were trying to find out how you felt about parents rights vis-a-vis the goverment. I'm asking questions to try to figure out if you see any children's rights.

Do you think loving well meaning parents should be able to keep their kids out of school entirely, and also not homeschool them? Even parents who think they know best? I don't think parents should be allowed to do this.

Do you think parents should be able to insist their kids take paid work and toil for 40 hours a week? I don't. I think even parents who are sure, in their heart of hearts this benefits kids, should not be permitted to do this.

The government requires all sort of things of parents both for the public benefit and the benefit of the parents' own kids. With regard to HPV, it's important the vacinne be given before the child is sexually active. So, in this case, letting parents deprive the child of the vaccinne and providing no way for the child to get around this, may recognize parents rights.

However, it infringes on the child's liberty to make a wise medical decision. That doesn't seem quite right to me. It seems no more right to me than permitting parents to not school their children at all or letting parents force their 16 year old children to marry a person of the parents choice. We don't permit those because we recognize that the government vs. parental rights aren't the only factor here. Children's right matter too.
2.6.2007 6:54pm
Laurie Lynn:
So, you are against Creeping Paternalism, except where you are not. Very clear.

You have no philosophical ideals to inform your vote. You decide on a case by case basis, leaving yourself open to whims and changing societal ideals.

Did you know that education was not always so compulsory? In the 1930's my father was regularly excused from class to help on his family's Texas farm. He missed a great deal of school. This was common in agrarian areas. My father also now has a master's degree and enjoyed a long and health career as a real estate developer. This is not an uncommon story for people of his generation.
2.6.2007 7:06pm
lucia (mail) (www):
Laurie:
I don't see making parents fulfil their parental obligations to fully protect their children or as "creeping paternalism'. We will always have some need for paternalism with regard to children-- because they are children.

Getting kids vaccinated is exactly the qualitatively the same type of paternalism we've had for a long time. The intent of laws of this type is to protect children from bearing the burdens of identifyable bad parental decisions.
.

I was aware education was not always compulsory. I'm also aware there was a time when formal education mattered less.

I think it's good that we now have compulsory education for children.
2.6.2007 7:17pm
Kovarsky (mail):
Laurie,

It should be apparent from the term's root that "paternalism" can involve governments or parents. I think Lucia's point is that, because we're dealing with children, some "paternalism" is inevitable. Whether it's the government or the parent exercising coercive force over the child, that force is still "paternalistic."

You might object to government paternalism more than parental paternalism, but one is not more "creeping" than the other.
2.6.2007 7:21pm
Pendulum (mail):
LaurieLynn,

The questions being posed are simply to attempt to understand your reasoning. Do you support mandatory education laws? Do you support mandatory limits on child labor? If not, why not? Without meaning to be rude, anecdotes about your father or your choice of school for your child appear to be evasions of the questions posed.

Because, since you are derisive towards "taking things on a case by case" basis, your current principle appears to be complete endorsement of parents rights, and zero recognition of child rights? Is that correct? If not, aren't you "taking things on a case by case basis" with "no philosophical principles"?
2.6.2007 7:30pm
Laurie Lynn:
Lucia and Pendulum:

What I see expressed here is such little faith in Parents and so much faith in Government. I am afraid I don't share your view. There are some bad parents. But most parents are loving and make the best choices they can for their children. I would not generally support substituting your judgment for theirs.

Erisian23 makes some wonderful points (expressed above) What did you think of these comments?
2.6.2007 8:58pm
lucia (mail) (www):
Laurie,
I have faith in parents; I'm not sure why you think I don't.

Sure, I would overule parents who wish to deprive children of a basic education. I would wish to over rule parents who want to make their kids take 40 hour per week paid jobs. But why do you think my seeing a benefit in these law suggests I don't trust most parents to voluntarily do what's best for their kids?

The argument that most people won't do bad things so we don't need a law strikes me as fundamentally silly. I absolutely, positively trust the majority of people would never murder anyone even absent laws prohibiting murder. I still think we need laws prohibitting murder so we can apply them to the small fraction of people who commit murder. So, how does my thinking we need laws to prohibit mistreatment, or poor parental care become lack of trust in parents in general?

I am going to ask you again-- so as to figure out where you do draw the line on state intrusion on parental authority: Do you think we must let some parents fail to say, provide basic education to their kids, simply because most parents would do educate their children voluntarily? ( Or will you keep evading the general issue of overuling parents, and keep applying this "trust parents" doctrine only to the HVP vaccine?)

On to the other bit:
You asked my opinion about Erisa's points which you find wonderful. I'm going to need to ask you to clarify: which of Erisa's points are you suggesting are wonderful? I see two points-- neither struck me as particularly enlightening.

Point 1: Erisa advanced the point that government acting in loco parentis is a serious matter. Sure. I think governments acting on anything is a serious matter that must be thought about; the merits and demerits must be weighed. That general idea by itself tells me nothing about any particular government action including one to kina-sorta mandate HPV vaccines.

So, while I don't disagree with the point that we need to think about laws, you or Erisa are going to have to elaborate by actually explaining more merits and demerits with regard to this particular law. For now, I see more merits than demerits. (Except, of course, I would want to see girls given the right to overule their parents so the girls can gain protection against a potentially fatal disease should the girl believe it's in her interest to take the vaccine.)

Point 2: Erisa advanced an entirely hypothetical secret Merck manual that, in his or her dreams might some day be released by a mysterious Merck whistle blower. Is that any sort of argument or point at all?

Was there another point you'd like my opinion on? If so, elaborate and I'll comment!
2.6.2007 11:26pm
Laurie Lynn:
There is no point in continuing the discussion. You believe that this situation is an appropriate use of Government force, and I do not. I have read your arguments and remain unconvienced.

I think the vaccine is great. I would contribute to a fund to pay for vaccines for the poor. I would support private efforts to maximize the use of this vaccine. (why doen't Merck try this instead of lobbying Government to cocerce the use of this product?) But Government Force - NO.
2.6.2007 11:58pm
Erisian23 (mail):
lucia:

>> Erisa advanced the point that government acting in loco parentis is a serious matter. Sure. I think governments acting on anything is a serious matter that must be thought about[...]

In all honesty, I got a chill when I read this. Your response appears to put the gov't's authority to act in loco parentis on par with setting postage rates, levying exice taxes on publicly disfavored goods, or proposing bridges to nowhere. I sincerely hope this does not become a common attitude. Much like conscription, gov't authority to act as parent without regard for the actual parents is a very serious liberty issue deserving of far more serious scrutiny and due caution than allocating funds to repaint the White House.

My point, therefore, was not that this was merely a serious matter, but to emphasize the default answer to gov't acting as the defacto parent ought to be "no" in a free society. A "yes" should be justified starting from there. You are correct that this doesn't tell us if "mandatory vaccinations" are good or not, but mostly because I'd already adddressed the libertarian principles it violates earlier on.

The point of my "purposely contrived hypothetical" was to establish that a case can be made in which rational people could ethically object to the injection. And if there are ethical secular grounds to decline the injection, on what basis would we disallow moral or religious reasons? A bio-ethicist is allowed to give us an out but the good Rev. Lovejoy cannot? A correct libertarian position, I've argued, includes allowing individuals to choose to act upon seemingly bad advice from their clerics.

Ultimately the libertarian principle at stake is sovereignty over your own body. A free person ought to have control over what enters their body. Whether in the affirmative: I choose to consume alcohol, smoke tobacco, or drink tap water; or in the negative: I choose to not eat meat, not ingest ibuprofen for headaches, or not drink tap water. Insofar as I am rationally capable of balancing risk A vs. risk B, it's unconscionable for the gov't to make this decision for me. If I don't want a flu shot for any reason, it is not justifiable - on core libertarian principles - for the gov't to force it on me. The same holds true with the HPV shot. Mandatory vaccinations are inherently anti-libertarian.

I am not saying mandatory inoculations are immoral, wrong, or otherwise in all cases a bad ideal. The simple fact is we are not a libertarian society, we do not pretend to be, and therefore we need not justify our actions on libertarian principles (which is fortunate because we typically cannot do so). Those who are underserved by our current health care system and policies will, in all likelihood, be underserved by a purely voluntary system with or (especially) without cost subsidies. By making it mandatory for school admission, the gov't forces the issue. By allowing a conscientious objector exemption, the gov't allows both rational and irrational parents to decline. That's a libertarian paternalist pattern.

Unfortunately Gov. Perry's executive order affects "little girls" so any discussion regarding libertarianism and communicable disease in the Texas context becomes hard to understand amidst (earnest and well intentioned) cries of "Won't somebody please think of the children?" The issue morphs into the needs of children and gov't authority to act in loco parentis, topped with a large heap of (morally and empirically justifiable, imo) paternalism -- but not libertarianism. The question of how libertarian philosophy ought to apply "A free person ought to have control over what enters their body" to a minor child is interesting, but I suspect we're better off addressing that at another time now.

Suffice it to say, I believe I've adequately explained to Prof. Volohk and Kovarsky my reasons for disagreeing with "A requirement that people not allow their bodies to be media for unwitting transmission of deadly diseases strikes me as quite compatible with a generally libertarian perspective on the world." I do not see a path through libertarian principles that allows the gov't to forcefully inject chemicals into allegedly free people's bodies just because the FDA, the AMA, and some lobbyists think it's a fine chemical after all.
2.7.2007 1:36am
lucia (mail) (www):
Erisian:
First, sorry for expressing things badly I don't have an argument with you particularly . Laura vaguely waved at your "points" and called them "wonderful", I understood her to be suggesting those specific points were somehow wonderfully enlightening in the context of the discussion between her, Pendulum amd me. By "not wonderful", I was borrowing Laura's term, and only sort of meant to say I see points that address the specific issue Laura, Pendulum and I were discussing. Your discussions were in response to Kovarsky, precede most of the discucsion bewteen Laura and me, and in many regards I don't see how they "fit" our particular discussion. (I do see how they fit EV's blog topic and I see how they fit into the Kovarsky-Erisian) discussion.

However, having commented, I'd like to comment on few things in your reply.


My point, therefore, was not that this was merely a serious matter, but to emphasize the default answer to gov't acting as the defacto parent ought to be "no" in a free society.

When I read your comment initially, I assumed you thought the default answer should be no. But why does your blood run cold at the thought that I think the default answer to gov't acting should be "no" in the other cases you list? The bridge to nowhere was a stupid waste. The stupidity has nothing to do with the "in loco parentis" issue.

Once we actually consider a specific issue, to arrive to "yes" on anything, I think we need discuss the merits and demerits. Until we get to "yes", the answer is "no".

Some issues-- like painting the white house-- are easier that others. But even if an issue is more difficult, Laura pointing rather vaguely to your comment, which emphases the idea that the government should avoid interfering with parental authority. For the record, I think we should try to avoid interfering with parental authority, but I don't think that's an absolute.
So, we are back to where we are with every action: We still need to discuss the merits.

I think Laura was trying to avoid discussing the merits of a very specific policy action by simply making a vague allusion to your comment .

The point of my "purposely contrived hypothetical" was to establish that a case can be made in which rational people could ethically object to the injection.

Yes. I thought that was your point when you initially wrote the comment. But, with regard to Laura pointing to that comment during the discussions between the two of us, I couldn't see what point she might be making.

The current Texas law has provisions for parents to object, and I've said several times during Laura and my discussion that I approve of that provision. It gives parents a way out. On this, I see the need for permitting rational people to object and avoid the injections.

As it happens, I think there should be places where state action is entirely excluded from interfering with parental decisions. That said, I'm also ok with the state mandating some parental behaviors. I think it's ok for some State madates to be absolute and others to act as very firm suggestions. The first class would include requiring parents to feed, clothe and shelter their children; the second could include mandating vaccines, but permitting parents with serious objections to vaccines a way out. I make the distinction based on how imminent the danger to the child.

I realize you might not make such a distinction. I have no clue what distinction Laura might be making. She simply "points" to your argument and requests that pendulum and I answer it. Well, precisely how are we to answer it? Laura needs to tell us exactly what bit of your hypothetical struck a chord with her. If she did, I could respond better.


Ultimately the libertarian principle at stake is sovereignty over your own body.

Sure. And in that regard, I think the girls themselves should be able to protect themselves and request the HPV vaccine even if their parents wish to block them from taking measures to protect themselves. I'm also for permitting parents to file paperwork to overcome the government requirement for a injections-- that's how the law stands.

As to this bit:
That's a libertarian paternalist pattern.

Sure. There is paternalism involved. Normally, I am opposed to government paternalism. Laura and I discussed that issue up thread.

That said, we are discussing laws regarding children. The realities of child development means that one will either have parental paternalisms or state paternalism. As I see it, if parents become deficient, the state or others must intervene to protect kids from harm.

For example, I have no particular difficulties with the state imposing some minimum standards for parental behavior toward their kids: feeding the kids, sheltering them, educating them, not beating them, giving them medical care. Vaccines are a form of medical care. So, with regard to enforcing standards for taking care of kids generally, or requiring vaccines specifically, I don't see the argument of "it's state paternalism and that's not allowed", as providing a sufficient reason why the government cannot act. We still need to discuss whether or not a particular type of state action -- like the HPV vaccine -- falls in the permissible class or not.

I was trying to figure out whether Laura's objection to government mandates of parental behavior was limited to the HPV vaccine or if it's more general. If the objection to government action is based only on state paternalism, I was trying to figure out precisely what about the HPV vaccine made it fall outside the realm permitted by state action-- particularly since the state does permit an 'out'. Of course, I've no learned, none of use are not going to learn the answers to these things.

What we do know is what we've known all along: She's against the government mandating the vaccine!
2.7.2007 10:04am
J. F. Thomas (mail):
I'm not sure Professor Volokh appreciates you making lewd comments about an eleven-year old girl on his blog. I'll leave it up to his discretion whether to forward your comment and IP address onto the proper authorities.

Ahh, so you do care about my lifestyle choice. So much so that you suggest Professor Volokh forward my comment to the proper authorities.

Of course, my comment--which was not meant to cast aspersions on you or your daughter (and of course I had no idea how old she was or if you even had a daughter)--was merely to point out that you do care about other people's lifestyles when they directly affect you.

Granted, the comment was a little crude--but actionable, hardly.
2.7.2007 1:24pm
Dick Schweitzer (mail):
I am sorry to come so late to this discussion:

Still, I would like to suggest we observe from a different perspective, something apart from this objective of immunizations as a proper function of governments; or the rights of individuals affected.

We may be missing the most important considerations to be given to such issues: (1) What are [is the nature of] the obligations involved? (2) how do they arise? (3) whose obligations are they [or on whom do they fall](4) how are performances of these obligations to be "enforced?" (5) do (or should) governments have any roles in "enforcement" - if so why? (6) and what kinds of roles? Then, finally what are the competing, balancing, offsetting or opposing obligations?

There is an obligation within a social order to protect its organic existence (just as there is in nature for individuals for self-preservation). Thus, we establish an obligation to immunize (or medicate), not to protect the individual, but the larger body.

Acting on that premise, some societies have quarantined and isolated those infected with leprosy, TB, Aids, mental "defects," etc. Ours has done so in several of those issues, but gone on to learn from grief. We do immunize, we do medicate - out of obligation to protect our social order.

As a matter of personal opinion on this issue, I can not find that obligation which is generating actions by governments. I can understand that parents may accept such obligations, but they certainly do not fall on the child or minor.

It may decided later that, by social mores, a young person should always alert any others to the facts of immunization vel non, or genital herpes, or other issues.

And what are the obligations of males in all this? To ask?
If there are some other obligations of governments on this issue, how do they arise?

Dependent on how fully we observe the issues of obligations, rests the fullness of rights. This is not a legal issue to the exclusion of the moral issues, and the moral issues will be determined by the obligations involved.
2.7.2007 3:25pm
Erisian23 (mail):
>> For example, I have no particular difficulties with the state imposing some minimum standards for parental behavior toward their kids: feeding the kids, sheltering them, educating them, not beating them, giving them medical care. Vaccines are a form of medical care.

From a libertarian perspective, I see no issue with most of what you've said here. First, we can agree that are virtually no rights that are absolute. Second, children have a right to eat, a right to shelter, a right to be healthy, a right to be safe, and a right to education. Third, parents have a right to have authority over their children.

But the parental right of authority (#3) does not allow (#1) parents to deny their children food, shelter, or education (#2). Looking over at the U.S. Dept of Labor's Youth &Labor site, even the FLSA is justified in terms of child rights.

Child labor provisions under FLSA are designed to protect the educational opportunities of youth and prohibit their employment in jobs that are detrimental to their health and safety.

An eight year old child's right to an education trumps a parent's right (or financial need) for the child to stitch shoes 8 hours a day.

>> As I see it, if parents become deficient, the state or others must intervene to protect kids from harm.

I disagree with the use of the word "deficient" because it's inherently subjective. I agree that if a parent contravenes a child's rights, intervention is likely to be the only solution. A parent's idea that caging the child is a good disciplinary measure does not override the child's right to be free of unlawful physical restraint. Children are people, not property.

In the instant case, people in favor of a truly mandatory HPV vaccination law have only considered the child's right to healthcare. But a truly mandatory law violates the child's right to sovereignty over body (a relatively weak right compared to the adult version) and the right to free practice of religion (a presumptively strong right, as far as I know), as well as the parent's right to authority over their children's decisions and welfare (which we agree requires substantial justification to annul). So, is the HPC vaccine truly so critical to the child's right to healthcare (a la polio vaccination) that we're willing to abrogate all those other rights? Or is the HPC vaccine more a reasonable aspect of good healthcare (more like the 100% voluntary chickenpox vaccine -- even though chickenpox causes ~100 deaths in the U.S. every year) and thus presenting circumstances insufficiently perilous to ride roughshod over all those other rights?

I believe it's on par with the latter and so I will object to a truly mandatory (no opt-out) law. I simply don't see the HPC vaccine as critically important enough to a 9 yr old girl's health that we should tell her, "Your mommy and daddy and your priest say that getting this shot is against God's will, but the gov't believe it's best for you so you're going to get the shot anyways. Don't cry, angel, you can always go to confession afterwards."
2.7.2007 5:56pm
Erisian23 (mail):
Dick Schweitzer:

>> There is an obligation within a social order to protect its organic existence (just as there is in nature for individuals for self-preservation). Thus, we establish an obligation to immunize (or medicate), not to protect the individual, but the larger body.

The "public health" does not exist except as a statistical expression of individuals' health. "Society" exists, not as a particular beast, but merely a convenient construct to describe a large group of individuals. "Society" is not accorded the right to free speech and free exercise of religion -- individuals are. A right for "society" to protect itself is a shorthand way of saying there's a right for socialized people to protect themselves from the anti-social behaviors of others.

To put it another way, we'll agree that "society needs a police force in order to protect itself." I'm merely suggesting that this is a convenient and polite shorthand way of saying "I'm willing to pay taxes to support a police force to protect me from you and you from me." Society is an aggregate, a pluralized construct, not an entity capable of making decisions. Indeed -- who determines what is best for "society"? The FDA? The Legislature? Popular opinion? You? I hope it's me because I've always wanted to be king.

>> Acting on that premise, some societies have quarantined and isolated those infected with leprosy, TB, Aids, mental "defects," etc. Ours has done so in several of those issues, but gone on to learn from grief. We do immunize, we do medicate - out of obligation to protect our social order.

Quarantine is about protecting you from me. If I have leprosy or TB (we don't quarantine or isolate for AIDS), my right to free movemovent becomes less compelling than your right to life. Thus, in any case, my right to X can be properly found to be restricted when its exercise will violate your right to Y. Very few rights are absolute.

Isolating someone with a "mental defect" (let's define it as insanity) is to protect them from themselves as well as to protect you and I from them. "Society" does not need protection from an insane person based on the simple fact that an insane person cannot actually harm "society" -- they can only harm themselves or other individuals. When we say "society" was harmed, what we mean is a statistic changed. I respectfully submit to you that our individual rights to not be unlawfully harmed is far more a serious concern than the goal of keeping a number in a column as low as possible.

>> And what are the obligations of males in all this? To ask?

The obligation of males is to reasonably protect themselves and those they voluntarily engage in activities with, the same as it has always been. If a male is HPV positive and knowingly infects others through unprotected consensual sex without disclosing their status to their partner(s), they can and should be prosecuted for doing so. Rubbing skin infected with leprosy against someone is not significantly different than repeatedly hitting them with a baseball bat.

>> This is not a legal issue to the exclusion of the moral issues, and the moral issues will be determined by the obligations involved.

Morals are tricky things and typically poor foundations for societal governance. Some people reasonably believe it's immortal for parents to deny their children the vaccine over religious objections. Others equally reasonably believe it's immoral to inject chemicals into a person's body against their fair religious objections. And to the extent that morals are particularly individualized, it can be difficult to discuss moral solutions to societal problems simply because society does not have one set of morals to act upon. That you believe a person ought to behave a certain way because you find it to be moral (ex: supports the public health) does not imply they have an obligation to behave that way, particularly when they personally find the obliged behavior to be immoral (ex: goes against God's Will).

In part based on that, I suggest that a free society is better governed on the basis of universally shared rights, balanced against each other, than non-universally shared ideas of what's moral and what's not.
2.7.2007 6:35pm