The measles outbreak has now tipped 100 confirmed cases. In the face of this epidemic, many have expressed anger and frustration toward anti-vaxxers, whose choices have the effect of putting others at risk. Many feel that they should be held responsible for their choice not to vaccinate. Some think that the law should hold them responsible.
The law looks at responsibility in a very specific way. Let’s say that your newborn—too young for the MMR vaccine—contracts measles. You believe that it’s due to contact with another child, who wasn’t vaccinated because of her parents’ choice not to vaccinate. You sue the parents, seeking compensation for medical bills, and pain and suffering.Tort law—the area of law that redresses a wrong by compensating the victim—holds people responsible largely based on duty. But it thinks about duty only according to what lawyers call statutory duties and common law duties. Statutory duties are the result of a legislative body—federal or state, or both—putting a law on the books. For instance, you have a statutory duty not to drink-and-drive. Common law duties, on the other hand, are fundamental legal obligations that speak to the level of care owed to others. In the United States, these duties have evolved through judicial decisions. An employer, for example, has a duty of care to provide a safe workplace for its employees.
What’s missing from how tort law treats duties? Ethics. Many legal duties feel like ethical duties, or can even be explained in terms of an ethical obligation, but ethical and legal duties are not necessarily one and the same. This makes more sense when you think about the motivation behind certain legal duties. Take drunk-driving. You may feel that you have an ethical duty not to drink and drive (and you would be right), but a legislative body made that law because drunk driving presents a serious danger to the safety of its citizens.
Now consider this example. You’re jogging along the Reservoir in Central Park and notice a child in the water who appears to be drowning. You know how to swim and it wouldn’t be very difficult for you to rescue him. Most of us would say that you have an ethical duty to rescue that child (even if it isn’t your son or daughter). The law, on the other hand, says you don’t have a duty in this particular instance.
When we talk about a responsibility to get vaccinated against measles—or to vaccinate your kids—we’re really talking about an ethical responsibility. So why might we have an ethical responsibility? Ethical obligations are rarely clear-cut. They involve weighing competing principles and, ultimately, deciding that certain ones deserve more weight and importance than others.
On the one hand, vaccination against measles benefits others. For example, it respects others as persons by not exposing them to unnecessary and preventable risks. As a parent in particular, getting your child vaccinated protects him or her from a known and serious risk. By getting vaccinated, we also play a constructive role in the community by contributing to herd immunity, which helps to protect others from infection. Vaccination also serves a utility purpose. Outbreaks disrupt communities, worsen the overall health of a population, and impose a financial burden on the health system.
On the other hand, vaccination impinges on our autonomy by compelling us to do something that we may, for a variety of reasons, not want to do. Particularly in the United States, we tend to place great value on personal autonomy. But vaccination against measles asks very little of us. It has very minimal health risks and requires just two doses for maximum effectiveness.
Altogether, the benefit to others outweighs the (slight) intrusion on our autonomy. Those who disagree with this weighting tend to misconstrue the medical risk involved in vaccination. If the risk is thought to be high, it’s easy to see why someone would give more weight to autonomy – there are understandable limits to how much personal risk we’re willing to take on for the sake of others, especially strangers.
But I think that there is a more fundamental dynamic behind this. It comes down to choice – more specifically, when personal choice affects the community. Think about that for a moment. It isn’t saying that autonomy and personal choice don’t matter. It also isn’t saying that community interests always matter most. What it says is, there is a point when community interests should take precedence.
The vaccination debate can be heated. Much is at stake and the effects can be intensely personal. Not surprisingly, this can result in speaking in absolutes, which obscures just how important certain ethical principles like autonomy can be, even if we have good reason to give them less weight in certain instances. Ethics is never clear-cut. But when you weigh the concerns, vaccination makes for an ethically responsible citizen.
Nicholas Diamond trained in law and bioethics, and works as a health policy consultant in Washington, D.C.