Fatal instinct

In responding to the FDA's decision to permit irradiation of fruits and vegetables, Susan Schneider says, "Sometimes, we should trust our instincts."

With apologies to Susan, I believe that this treatment of "instinct" is fundamentally wrong. The whole point of law, at least in regulatory settings where government has a broader mandate than simply enforcing private agreements between consenting individuals, is to impose compulsory measures for the benefit of the public at large. At an extreme, official resort to force gives rise to a definition of law as true as it is harsh: civilization requires giving government a monopoly on violence.

Many controversies in the realm of agricultural law and food policy rise from the clash of individual instinct with public necessity. As I argued in Beyond Food and Evil, 56 Duke L.J. 1581 (2007), law needs to clamp down precisely where instinct leads individuals — and society at large — to make decisions that have no actual basis in science. Irradiation of fruits and vegetables is a relatively mild variation on this theme. So are the labeling controversies I described in Beyond Food and Evil. The alarming reemergence of measles in the United States, however, is a far more sinister manifestation of "fatal instinct." From The New York TImes:

More people had measles infections in the first seven months of this year than during any comparable period since 1996, and public health officials blamed growing numbers of parents who refuse to vaccinate their children.

Many of these parents say they believe vaccines cause autism, even though multiple studies have found no reputable evidence to support such a claim. . . .

From January through July, 131 measles cases were reported to the Centers for Disease Control and Prevention from 15 states and the District of Columbia. Fifteen people, including four infants, were hospitalized. . . .

Most of those who were sickened were unvaccinated or had an unknown vaccination status. Sixteen were younger than a year old, too young to have been vaccinated. But two-thirds of the rest — or 63 people — were unvaccinated because of their or their parents’ philosophical or religious beliefs.

Public health advocates have become alarmed in recent years over a growing number of people who contend that vaccines cause illnesses, particularly autism. The number of parents who claim a philosophical exemption to mandatory vaccine laws has grown. . . .

Because it is virulently contagious, measles is often the first vaccine-preventable disease to reappear when vaccination rates decline. In the decade before the measles vaccination program began, each year nearly 4 million people in the United States were infected, 48,000 were hospitalized, 1,000 were chronically disabled and nearly 500 died.

Autism and antivaccines advocates are unapologetic about the return of measles.

“Most parents I know will take measles over autism,” said J. B. Handley, co-founder of Generation Rescue, a parent-led organization that contends that autism is a treatable condition caused by vaccines.

It is an attitude that pediatricians say they are increasingly having to confront. . . .

Responding to parents’ concerns, manufacturers in 2001 almost entirely removed a preservative containing mercury from all routinely administered childhood vaccines. The incidence of autism has shown no drop.

Instinct counsels an increasing number of parents to withhold vaccinations from their children. As a matter of epidemiology and as a matter of public policy, they are flatly wrong. It is no longer an answer to say that these parents are making well intentioned but misguided decisions on their children's behalf. Parents who don't vaccinate their children are now exposing wide swaths of the public to easily prevented pestilence.

The law on this score is clear. Compulsory vaccination, whether in times of public health emergency or as a prophylactic measure used to condition admission to public schools, was upheld in Jacobson v. Massachusetts, 197 U.S. 11 (1905). States and localities have adopted ever-increasing numbers of exemptions for parents who object to vaccination. They shouldn't. Fear of vaccination is the left-of-center equivalent of creationism, and no worthier of legal respect.

Just as we should teach evolution without apologies, so too should we reinstate a sense of urgency in vaccination policy. The putatively instinctive desire to shield one's children from the risks of vaccination loses legal validity at the very moment that this instinct puts other people's children at risk of death.