Updating Constitutional Doctrine: An Extended Response to the Critique of Compulsory Vaccination

Abstract

Science is not supposed to tout certainty for its findings. It leaves absolute truth to other fields, such as mathematics, logic, and religion. There are, of course, well-confirmed theories and "laws" that do warrant the loose use of "certain." The bare theoretical possibility that the oxidation theory of combustion will fall and the phlogiston theory will be restored to its rightful place does not move the research establishment. And scientists (like many others) are certain that scientific methodology is a powerful tool for illuminating the world, if not everything about every aspect of existence. So, within this very stance, scientists themselves should be skeptical of critiques of what is thought to be already established. Moderate conservatism of this sort is rational and often inevitable. The burden of proof, at the start, is rightly on the critics of accepted scientific claims unless those claims are absurd (which is rarely the case). And, for their part, scientists like Semmelweis, Marshall, and Warren were also right not to take established matters as certain. Calls for skepticism in the face of scientific claims generally, and vaccination claims in particular, are, thus, welcome among the rational. Professor Holland's article (the "Article") calls attention to important medical, scientific, and constitutional issues, but has flaws requiring attention. Skepticism of medical or scientific claims may be a rational necessity, but her Article is an uneven and incomplete expression of that skepticism, for the reasons that follow in this Response's Parts II-V. The Article relies, at various points, on flawed modes of inference and questionable sources of opinion and information; it fails to specify underlying value and policy assumptions; and its analysis of constitutional precedents and doctrine does not confirm her claims that compulsory vaccination programs are constitutionally suspect within current or preexisting doctrine. One should ask what incites Professor Holland's complaints about current immunization practices and policies - at least as applied to hepatitis B vaccination, which is the Article's prime target. Here are some possibilities, starting with the least likely, but nonetheless important: It is in pursuit of loyal opposition to science in application-a way of keeping scientists honest and promoting due care in formulating, confirming, and disclosing hypotheses and findings. We are all from Missouri, after all. And, no more than with any other institution, we probably should not rely on science to police its own domain. It is meant to vindicate autonomy and the rule of law, regularly scorned by overbearing governments and greedy pharmaceutical companies. Some think that there have been serious injuries from vaccinations, including those for hepatitis B; these pressing facts require ventilation and calls for reducing or terminating some programs. I doubt that the Article is simply meant to keep science on its toes. It seems likelier to be a reaction to a sense of autonomy under assault by at least some vaccination projects, and a push toward deemphasizing them. True enough, autonomy is always under assault. Give the government or immense private interests an inch, and they will take a light year. (Sometimes little private interests do that too.)The Article does not claim there is a pattern (systematic or otherwise) of putting down individual liberty of certain sorts, but its critique of supposed conflicts of interest and "financial distortions" suggests a governmental and commercial indifference to claims against personal intrusions.