Vaccines, quarantines, and compulsion in supporting the public health
I posted a version this one last year, but the recent outbreak of measles has once again ignited the debate of just what the government has the right to do or not do in compelling individual actions in support of public health. This is an old question, and it’s worth considering it in historical context.
One aspect of the endless vaccine debate is the aspect of coercion some parents feel about requiring children to be vaccinated before they can go to school. The government mandates vaccination. But this isn’t really an absolute requirement. Although all 50 states ostensibly require vaccination, all but 2 (Mississippi and West Virginia) allow parents to opt out for religious reasons, and 19 states allow this for philosophical reasons. (See here for a list.) Still, in general vaccines are required unless the child has a medical reason not to get them, such as having a problem with the immune system. Is this an unprecedented use of state power? I don’t think it is.
In fact, historically there have been many examples of the government inserting itself into healthcare decisions of individuals and families in order to protect the public health. Some of these go back many years. Quarantine, for example, goes back to medieval times, centuries before the germs were discovered. It has since 1944 been a power of the federal government; federal agents may detain and send for medical examination persons entering the country suspected of carrying one of a list of communicable diseases. Quarantine has also been used by local and state governments, particularly in the pre-antibiotic era. Diphtheria is a good example, as you can see from the photograph above. Quarantine can be abused, and has in fact been abused in the past for discrimination against certain minority groups. A brief paper from the American Bar Association details some of those instances here. The paper even suggests that it should be abolished for these reasons. But the practice is a very old one.
Of course the government mandates many things for the protection of public health. Milk is pasteurized (although there are raw milk enthusiasts who object), water is purified, and dirty restaurants can be closed. Like quarantine, these measures restrict our personal freedom a little, but what about government-mandated medical treatment? That sounds a bit more like the situation with compulsory vaccination of children. As it happens, there are more recent examples of compulsory treatment, particularly involving tuberculosis.
A couple of decades ago I was involved in a case of a woman with active tuberculosis who refused to take treatment for it. Worse, her particular strain of TB was one highly resistant to many antibiotics, so if that spread it would represent a real public health emergency. The district judge agreed. He confined the woman to the hospital against her will so she could be given anti-TB medications until she was not longer infectious to others. At the time I thought this was pretty unusual. When I looked into it, though, I found that there have been many instances of people with TB being confined against their will until they were no longer a threat to others. The ABA link above lists several examples of this.
So it’s clear to me there is a long tradition of the state restricting personal freedom in the service of protecting the public health. Like everything, of course, the devil is in the details. To me the guiding principle is that your right to swing your fist ends where my nose begins.