Enforcers of Health

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Libertarians have uneasy thoughts about the enforcers of public health. In my state, the public health authorities banned tobacco billboards — an act that some thought a violation of the First Amendment. This year, they pushed in the legislature to ban the sale of flavored cigars and pipe tobacco. In both cases, they have said that their aim is to make tobacco less attractive to children.

A century ago the fight was much more immediately vital. Then people of libertarian mind were fighting with the public health enforcers over the control of smallpox.

That disease was eradicated in the 20th century by campaigns of vaccination, many of them not entirely voluntary. In the United States, a turning point came in the epidemic of 1899 to 1902, when outbreaks of the disease prompted a political battle over compulsory vaccination. The story is told in legal writer Michael Willrich’s new book, Pox.

The push for compulsory vaccination grew out of the facts of the disease itself. It was a killer. Of people infected by the main strain of the disease, between 20 and 30% died. Smallpox was highly contagious, so that an infected person was a threat to everyone around him who was unvaccinated. First symptoms appeared more than a week after exposure, so fighting the epidemic by treating sick people was a strategy of being perpetually behind. The disease could, however, be stamped out by vaccinating the healthy.

For the progressives, the model was the Kaiser’s Germany. As Willrich says, “German law required that every child be vaccinated in the first year of life, again during school, and yet again (for the men) upon entering military service.” Germany had “the world’s most vaccinated population and the one most free from smallpox.”

In the constitutionalist America of the 1890s, vaccination was a state, local, and individual responsibility. Americans, writes Willrich, were “the least vaccinated” people of any leading country. The federal government had a bureau, the Marine-Hospital Service, to tend to illnesses of sailors; it had been started in the 1790s under President John Adams. The Service had experts in smallpox control, but they were advisory only and expected local authorities to pay for local work.

The antivaccinationists argued that compulsory vaccination would lead to other bad things. And four years later, in 1906, Indiana enacted America’s first compulsory sterilization law.

In a smallpox outbreak, the public health enforcers would set up a “pesthouse,” usually at the edge of town. They would scour the community for the sick, paying particular attention to the shacks and tenements of blacks, immigrants, and the rest of the lower classes, where the disease tended to appear first. People in these groups were subjected, Willrich says, to “a level of intrusion and coercion that American governments did not dare ask of their better-off citizens.”

Public-health doctors, accompanied by police, would surround tenement blocks and search people’s rooms. The sick would be taken to the pesthouse under force of law, and everyone else in the building would be vaccinated.

Often a community would have a vaccination ordinance that on its face was not 100% compulsory. It would declare that no child could be admitted to public school without a vaccination mark. For adults, the choice might be vaccination or jail — and all prisoners were, of course, vaccinated.

The procedure involved jabbing the patient with a needle or an ivory point and inserting matter from an infected animal under the skin. Typically it was done on the upper arm; often that arm was sore for a week or two, so that people in manual trades couldn’t work. Sometimes, vaccination made people so sick it killed them — though not nearly as often as the disease did.

Such was the background for the outbreaks of 1899–1902. At that time, two new factors emerged. First, America had just had a war with Spain, and had conquered the Philippines, Cuba, and Puerto Rico. All these places were rife with disease — and their status as conquered possessions, Willrich writes, provided “unparalleled opportunities for the exercise of American health authority.”

There the authorities had no worries about people’s rights: “The army’s sanitary campaigns far exceeded the normal bounds of the police power, which by a long American constitutional tradition had always been assumed to originate in sovereign communities of free people.” And coercive methods worked. They worked dramatically.

The second new thing in 1899 was that most of the disease spreading in the United States was a less-virulent form that killed only 0.5 to 2% of those infected. That meant that many Americans denied the disease was smallpox, and didn’t cooperate. The public health people recognized what the disease for what it was, and they went after it with the usual disregard of personal rights — maybe even more disregard, because of “the efficiency of compulsion” overseas. And they stirred up, Willrich writes, “one of the most important civil liberties struggles of the 20th century.”

Their fight was with the antivaccinationists, whom Willrich calls “personal liberty fundamentalists” who “challenged the expansion of the American state at the very point at which state power penetrated the skin.”

He continues:

“Many antivaccinationists had close intellectual and personal ties to a largely forgotten American tradition and subculture of libertarian radicalism. . . . The same men and women who joined antivaccination leagues tended to throw themselves into other maligned causes of their era, including anti-imperialism, women’s rights, antivivisection, vegetarianism, Henry George’s single tax, the fight against government censorship of ‘obscene’ materials and opposition to state eugenics.”

Often, antivaccinationists denied that vaccination worked. Many were followers of chiropractic or other non-standard medicine; this was also the time of “a battle over state medical licensing and the increasing dominance of ‘regular,’ allopathic medicine.” Of course, the antivaccinationists were wrong about vaccination not working, but they were not wrong when they said it was dangerous. In 1902, the city of Camden NJ required all children in the public schools to be vaccinated. Suddenly children started coming down with lockjaw. They were a small fraction of those who had been vaccinated, but all of them fell ill about 21 days after vaccination. Several died, and the press made a scandal of it.

Our newly conquered possessions provided “unparalleled opportunities for the exercise of American health authority.”

Under the common law of the day, the vaccine maker — the H.K. Mulford Co. — was not liable to the parents, because it had no contract with them. Nor was the government liable, though the government had required the treatment. Thus, writes Willrich, “The arm of the state was protected; the arm of the citizen was not.”

The medical and public health establishment initially denied that the lockjaw had been caused by the vaccines. This was admitted only after a consultant to a rival vaccine maker, Parke-Davis, made an epidemiological case for it. Congress responded by quickly passing the Biologics Control Act of 1902, which ordered the inspection and licensing of vaccine producers, and required them to put an expiration date on their products. It was one of the first steps in the creation of the regulatory state.

The act calmed the public and drove some smaller companies out of business. The first two licensees were Parke-Davis (later absorbed by Pfizer) and Mulford (absorbed by Merck). And the purity of vaccines, which had been improving already, improved dramatically in the following decade.

The antivaccinationists turned to the courts in a fight about constitutional principles. The argument on the state’s side was that it had a duty to protect citizens from deadly invasion, which might be launched by either an alien army or an alien army of microbes. The argument on the other side was the individual’s right to control what pathogens were poked into his body, and, as the antivaccinationists’ lawsuit contended, his right to “take his chance” by going bare in a time of contagion.

They brought their case to the Supreme Judicial Court of Massachusetts, and lost. Citing the power of government to quarantine the sick and conscript soldiers in war, the court said, “The rights of individuals must yield, if necessary, when the welfare of the whole community is at stake.” Then they appealed to the US Supreme Court. In the same year in which the libertarian side won a landmark economic-liberty ruling in Lochner v.New York (1905), it lost, 7–2, in the vaccination case, Jacobson v.Massachusetts. Writing for the court, Justice John Harlan compared the case to defense against foreign invasion, and wrote, “There are manifold restraints to which every person is necessarily subject for the common good.”

It is an unlibertarian answer. The author of Pox thinks it was the right answer — and so do I, in this case. Smallpox was indeed a kind of invasion. In the 20th century it killed 300 million of Earth's people, and disfigured millions more. And though public health people can make similar arguments, and they do, about tobacco as a mass killer, I do not support their efforts to stamp out its use by ever more state intrusion. The difference is that with smallpox the individual’s refusal to be vaccinated put others in imminent danger of death. Collective action — compelled collective action — was the only way to defeat the invader. None of this is the case with tobacco.

Naturally, the progressives wanted to apply their wonderfully practical idea to all sorts of things. Referring to epidemics and the germ theory of disease, Willrich writes, “Progressives took up the germ theory as a powerful political metaphor. From the cities to the statehouses to Washington, the reformers decried prostitution, sweatshops, and poverty as ‘social ills.’ A stronger state, they said, held the ‘cure.’ ”

The antivaccinationists argued that compulsory vaccination would lead to other bad things. They made some fanciful statements; one wrote, “Why not chase people and circumcise them? Why not catch the people and give them a compulsory bath?” But they were right. Four years later, in 1906, Indiana enacted America’s first compulsory sterilization law. This was done in pursuit of another scientific, society-improving cause that excited progressives: eugenics. In 1927, in Buck v.Bell, the Supreme Court approved Virginia’s law of compulsory sterilization of the “feeble-minded.” That was the case in which Justice Oliver Wendell Holmes — supposedly the great champion of individual rights — pontificated: “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v.Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.”

Jacobson has been cited in many Supreme Court decisions, usually to approve state power. And the applications have not been confined to medicine. In 2004, Justice Clarence Thomas cited Jacobson in his dissent in Hamdi v.Rumsfeld, which was about a US citizen captured in Afghanistan. Thomas, often regarded as the most libertarian of the current justices, was arguing that Yaser Esam Hamdi had no right of habeas corpus and could be held on US soil indefinitely without charge.

Collective action — compelled collective action — was the only way to defeat the invader. None of this is the case with tobacco.

The smallpox epidemic of 1899–1902 was a pivotal event institutionally as well as legally. The Biologics Act created more work for the Marine-Hospital Service, which a few years later became the US Public Health Service. The service’s Hygienic Laboratory, which was empowered to check the purity of commercial vaccines, later grew into the National Institutes of Health.

From the story told in Pox, you can construct rival political narratives. The progressives’ “we’re all in it together” formula about the need for science, federal authority, officials, regulation, and compulsion is there. And in the case of smallpox, progressivism put its strongest foot forward: it was warding off imminent mass death. Smallpox is one of the least promising subjects for the libertarian formula of individual rights and personal responsibility. Yet here you can also find the bad things that libertarian theory predicts: state power used arbitrarily and unevenly, collateral deaths, official denial of obvious truths, a precedent for worse things later on, and even the favoring of large companies over small ones.

I don’t like the progressive formula. But in the case of smallpox it fits, and I accept it, looking immediately for the limits on it.

Fortunately for liberty as well as health, few other diseases are as contagious and deadly as smallpox. Even Ebola and SARS — two contagious and deadly diseases of recent decades — were mostly fought by quickly isolating the sick. State power was necessary — some people were forcibly quarantined — but there were no mass vaccinations of the healthy.

Still, vaccination surfaces as an issue from time to time. It is, on its face, a violation of the rights of the person. So is quarantine. And yet it is prudent to allow both of them in some situations.

That is an admission that the libertarian formula doesn’t work all the time. Liberty is for rational adults in a minimally normal world. That is a limitation, but not such a big one. Surely it is better to design a society for people who can think, make decisions, and take responsibility, while in a few cases having to break those rules, than to live in a world designed for people defined as children of the state.


Editor's Note: Review of "Pox: An American History," by Michael Willrich. Penguin, 2011, 400 pages.



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Jon Harrison
"Unbelievable."
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Non-coercive solutions are always unbelievable to those who believe only coercion works.

Jim Henshaw

Interesting defense of limited statism. Not buying the notion that the wholesale loss of liberty, both immediate due to forced inoculations and long-term due to the terrible precedent set by this coercion, is worth eradicating this disease a decade or two sooner than it otherwise might have been. A variation of the "If it saves even one life, it's been worth it. Tradeoffs? Liberty? What are those?" argument.

Let's try a different iteration:

AIDS is a far more deadly disease than smallpox. It could be eradicated in the U.S., and lots of lives saved, if certain steps were taken:

1) Forcing everyone to get tested on a regular basis for presence of the virus.

2) Anyone found to be harboring the virus would have a choice of being permanently expelled from the country, being chemically castrated (if male), or having "I am HIV positive. Having sex with me is a serious felony that will result in prison time." tattoed on their forehead.

3) Any foreigners wanting to enter the country for any reason would have to be tested months in advance of entry into this country, and tested again at entry and wait in quarantine until shown to be HIV negative.

Still think this is a worthwhile tradeoff to save lives? If not, how is this different?

Jon Harrison

There's a big difference between smallpox and AIDS. AIDS isn't an airborne virus or one spread by casual contact, whereas smallpox is. That makes all the difference in the world when it comes to how society should respond. Vaccination against smallpox didn't save one life, it saved millions. But that aside, I can avoid getting AIDS if I make certain choices. Smallpox on the other hand was not a disease one could avoid through lifestyle decisions.

I don't see how smallpox could have been eliminated without vaccination. The idea that without vaccination the disease would have been eradicated anyway (with a decade or two delay) leaves me baffled. What I am missing here?

I can never quite get used to the fact that there are people who yearn for a society without any social restraints of any kind. Total freedom amounts to anarchy, and anarchy means a return to the law of the jungle. The theorists of absolute freedom would be the first to be devoured in such a world.

Jim Henshaw

Jon's assertions, and my rebuttals:

"There's a big difference between smallpox and AIDS. AIDS isn't an airborne virus or one spread by casual contact, whereas smallpox is."

A person who has chosen to get vaccinated can't get smallpox by airborne transmission or casual contact.

You can't choose to get vaccinated against the HIV virus. There currently is no vaccination. You have to make lifestyle changes, and even then an innocent person can get it despite taking reasonable precautions, such as a monogamous spouse getting it from a non-monogamous spouse who does not disclose their non-marital sexual activity.

So, logically, an individual can prevent getting smallpox simply by making a personal choice, and thus no coercion is necessary to protect the innocent.

And thus, by the logic of the article, if the authorities should be granted the power to use coercive measures to eradicate smallpox, then an even stronger case could be made for using coercive measures to eradicate AIDS. You have not drawn a bright line for granting the former power to government and not the latter, other than the more vigorous assertion of their rights to non-coercion by those at risk of contracting AIDS. Basically, you are saying that rights are really privileges that can be taken away by the authorities if those authorities assert a favorable cost-benefit analysis for some nebulous "society", and if they can get the populace to knuckle down and not protest too vigorously against these usurpations of rights.

"That makes all the difference in the world when it comes to how society should respond. Vaccination against smallpox didn't save one life, it saved millions. But that aside, I can avoid getting AIDS if I make certain choices. Smallpox on the other hand was not a disease one could avoid through lifestyle decisions."

Using condoms and practicing safe sex has saved millions of lives, too. You can avoid getting smallpox by making a simple decision at most every few decades. Smallpox IS a disease you can entirely avoid through a simple and easy "lifestyle decision", rather than the much more intrusive and restrictive and ongoing set of decisions necessary to minimize the chance of contracting AIDS.

"I don't see how smallpox could have been eliminated without vaccination."

I don't either. The difference is that you left out the implied word "compulsory" in the sentence above. It could have been eliminated without compulsory vaccination, or at least the risk to any individual could have been eliminated.

"The idea that without vaccination the disease would have been eradicated anyway (with a decade or two delay) leaves me baffled. What I am missing here?"

You're confusing near-complete eradication of the disease planet-wide (or, more precisely, hopefully permanent confinement of the disease to some military labs) with the eradication of an individual's chances of getting the disease if they voluntarily choose to get vaccinated.

That is, you are engaging in nanny-statist thinking, the thought that some people are too stupid or careless or reckless to be trusted with making their own choices free of coercion, and that thus we (meaning you and those who think like that) have an obligation to prevent bad things from ever happening to anyone anywhere, even if that means turning a blind eye to the bad things -- the coercion upon non-consenting individuals -- needed to achieve those outcomes you wish to foist upon others.

"I can never quite get used to the fact that there are people who yearn for a society without any social restraints of any kind."

"Social restraints" are not the same thing as "government coercion." Yearning to not be ruled by a top-down gang of thieves and nanny-statists with a monopoly of violence is not the same thing as wanting a bottom-up society that minimizes violence (not "prevents violence", there is no such utopia possible) without letting a few individuals of dubious character seize power by claiming the right to protect us from ourselves and others. There are social constraints against someone stealing from me even if there aren't government police around, including such "individuals" named "Smith" and "Wesson".

"Total freedom amounts to anarchy, and anarchy means a return to the law of the jungle. The theorists of absolute freedom would be the first to be devoured in such a world."

"Total freedom" and "absolute freedom" is not what anarcho-libertarians are endorsing or are claiming is achievable. A lot of people are bastards, and vigilance is needed to keep them at bay, and those aspiring to government "service" seem to include disproportionate levels of such bastards. "Freedom from coercion from would-be despots claiming a monopoly of the use of force" is what anarcho-libertarians want.

Jon Harrison

Unfortunately, children under the age of one cannot be vaccinated against smallpox. They therefore cannot be protected against the disease; "choice" is not available to them (or more precisely, to parents). For this reason vaccinating everybody is essential.

I'm sure we can agree that some people, at least some of the time, are too stupid or selfish to do the right thing. As a result, the community, acting through the organs of the state, must compel them to do the right thing in situations such as the one we are discussing here.

The rub of course is that the state has a tendency to go beyond what is prudent and necessary. As libertarians, we seek to persuade our fellow citizens to join us in opposing and (ideally) abolishing unnecessary intrusions by the state. However, the fact remains that a civilized society will always include certain restrictions imposed by government. For example, in a civilized society murder is punished by the state, not by vigilantes. With regard to the question we are discussing, i.e., compulsory vaccination, the need is clear, for the reason I stated. The fact is that infants up to one year old can only be protected from smallpox if everyone else in the society is vaccinated.

Jim's more general points regarding anarcho-libertarianism are interesting. Thanks for going to some length on the topic. My (admittedly limited) exposure to anarcho-libertarians has not led me to conclude that all they are looking for is "freedom from coercion from would-be despots." If that's truly the alpha and omega of the anarchist program, I'm fine with it. But I not so sure that the views Jim expresses here represent "mainstream" anarchist thinking. (Sorry, I couldn't resist marrying mainstream and anarchist.)

Jim Henshaw

"I'm sure we can agree that some people, at least some of the time, are too stupid or selfish to do the right thing. As a result, the community, acting through the organs of the state, must compel them to do the right thing in situations such as the one we are discussing here."

Let's pretend, for the sake of argument, that we aren't talking about vaccinations for smallpox. Let's pretend that these words above were uttered in defense of any of the following: the individual mandate for Obamacare; mandatory obesity control for people enrolled in government programs such as Social Security, Medicare, or Medicaid; gun control in an inner-city ghetto; the One Child program by the Chinese Communists; compulsory sterilization of people with low IQ ("Three generations of imbeciles are enough"); banning fast food restaurants in poorer section of LA; paying confiscatory tax rates; conscription into the military in time of war; price controls on labor (aka the minimum wage); and on and on.

Doesn't it bother you, Jon, that you are echoing the exact words that might be uttered by authoritarians and nanny-statists to justify any or all of these horrendous intrusions by the state? Doesn't it give you pause to think that maybe what you are advocating is at best a lesser exercise of collectivist coercion? Has it occurred to you that, however much you might be freedom-loving in the aggregate, on this single topic you are in league with the opponents of liberty and advancing a tiny part of their agenda?

Bruce Ramsey

One way it's different is that with sexually transmitted AIDS, you can take certain fairly simple precautions and not become infected by it, or become a danger to others. That was not true with smallpox. Unless you were vaccinated, you were a potential hazard to yourself and people around you. Therefore, with smallpox the benefit from taking the measures was stronger.

Another way it's different is that the prices you propose to exact are much higher: chemical castration, expulsion from the country or a tattoo. A tattoo is permanent and disfiguring, even if it's not on the forehead (a facetious suggestion). The repeated testing is permanently intrusive, and the testing of foreigners months in advance would be a permanent disruption to commerce, travel, international education, cultural exchanges and family visits. In contrast, with a smallpox vaccination, the risk and pain were soon over, and you went on with your life--meaning the cost to you of the measures was much less.

I didn't make the argument that if it saves one life, it was worth it. In this case it saved hundreds of millions of lives. You assert that compulsory vaccination eradicated the disease a decade or two sooner than it otherwise would have been. But maybe it wouldn't have been eradicated.

Erwin Haas

Interesting article;
When I was a fellow in infectious diseases at the Henry Ford Hospital in Detroit in the mid 1970s, we were consulted about whether an infant that had just arrived from Vietnam might have smallpox. The kid had chicken pox and was OK.
Turns out that the French had immunized everyone in Vietnam for smallpox in the 1870, eradicating the disease. And some of the older docs remembered seeing the last cases of small pox in Detroit in the early 1940s.

Jon Harrison

It was inoculation. Adams had himself inoculated during the Revolution. Jenner introduced vaccination in 1798.

Jon Harrison

Interesting review. "Pox Americana," on the epidemic of 1775-82 in the US, describes John Adams' personal experience with smallpox vaccination. (Or was it inoculation in his case? I can't recall.)

Are there vaccines available for Ebola and SARS?

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