Inducing Immunity?: Justifying Immunization Policies in Times of Vaccine Hesitancy

Preface

The work on this book has taken much longer than we could have imagined when we started the project. The first trigger for thinking about an in-depth ethical and legal analysis of immunization policies was the 2013–2014 measles outbreak in the Netherlands, which primarily affected religious communities with low vaccine coverage. Reported cases of measles stood at 2700, 182 children were hospitalized, and one child died from complications. This outbreak could be seen as just another in a long series of measles and poliomyelitis outbreaks in the Bible Belt in The Netherlands, where members of orthodox reformed churches live together in close-knit communities and often refuse vaccination for their children. We were intrigued by the lukewarm reaction of politicians and policymakers to the impact of this outbreak. Prime Minister Mark Rutte went no further than merely recommending that parents get their children vaccinated. The general political stance was that—hopefully—vaccination rates would increase through persuasion and education. Mandatory vaccination was considered to be futile because objectors would not comply anyway. We were surprised by these restrained reactions. Why were such outbreaks and the vaccine refusal of these parents perceived as immutable facts of life? And why were more coercive vaccination policies not even considered as ways to protect children against these diseases?

Religious objections have ceased to be the only grounds for vaccine hesitance and refusal. Since the turn of the millennium, new forms of vaccine hesitancy have emerged in many parts of the world, fueled by an increasingly vocal antivaccination movement. Supporters of this movement promulgate the idea that the dangers of vaccination far outweigh its benefit and seek to carve out all-natural lives for themselves and their children. At the same time, they tap into and reinforce an increasing lack of trust in vaccination programs, the medical establishment, and the state. This has resulted in an increased number of pockets of under-vaccination in many countries, and ultimately led to outbreaks of vaccine-preventable diseases. The infamous 2015 Disneyland outbreak in California made it abundantly clear that vaccine hesitancy could bring back diseases that (at least in high-income countries) had been safely under control for decades. In 2019, the World Health Organization (WHO) identified vaccine hesitancy as among the top health threats. It is remarkable that this health threat is not caused by a lack of a medical treatment for a serious disease: on the contrary, vaccines that are proven to be safe and effective are, at least in high-income countries, abundantly available. This health threat is caused by vaccine-hesitant persons’ lack of trust in vaccines.

Looking at these events from a mindset that is informed by the COVID-19 pandemic, the mortality and morbidity of these outbreaks may seem limited. Yet even these mild epidemics of vaccine-preventable diseases touch a sensitive nerve in public debates and generate much political controversy. They confront liberal democracies with a difficult and morally-laden question: how should the state respond to citizens who refuse to participate in collective immunization programs that are meant to protect society at large and the health of children aged 16 or younger in particular? Should the government take a stronger stance by motivating, pressuring, or even compelling parents to accept vaccination?

Similar questions have emerged during the COVID-19 pandemic: should governments require adult citizens to have themselves and their children vaccinated, to prevent spread of infections, and counteract the societal disruption caused by the pandemic? Given that basic liberties and freedoms are at stake, such fundamental questions must be asked and answered, not only during a pandemic but also at times when vaccine-preventable disease are more or less under control.

This issue fitted well with our different research areas and expertise. Roland has extensive experience of analyzing the legal regulation of conflicting fundamental rights in liberal democracies and had just published a paper that takes a strong stance in favor of compulsory vaccination. Marcel has been working on the ethics of prevention and public health for decades and was deeply involved in policy advice work for the Health Council of the Netherlands. So, we decided to embark on a joint project: to analyze in depth the problem of how to regulate collective vaccination for children and adults in times of vaccine hesitance.

From the very beginning, the project concerned more than a topic of mere academic interest. The Disney measles outbreak and a series of measles outbreaks in Europe made several states and countries implement more coercive childhood vaccination policies, leaving parents less freedom to opt out (Navin & Attwell, 2023). Governments, professionals, and public and private organizations put more emphasis on countervailing misinformation about vaccination. This was all highly controversial and public debates on this issue became more and more tense and polarized.

And then the COVID-19 pandemic emerged, which necessitated drastic public health measures. This triggered even more debate, especially when vaccines became available and governments rolled out mass immunization campaigns. We became heavily involved in these societal debates and in policy advisory roles. This inevitably slowed down the work on our book manuscript, but it also helped to test, apply, and improve our analyses. In the meantime, Roland joined the temporary committee on medical aspects of COVID-19 of Health Council of the Netherlands. Many of the proposals and arguments in this book have emerged from, and have been further elucidated through insights from our advisory work for parliament, ministries, and public health agencies. Arguments were often initially developed in op-ed articles we published in national newspapers.

Our role in public debate thus delayed the progress of the book project but also improved the quality of the argument. In our experience, doing work on legal and political philosophy is much more relevant, fruitful, and interesting if it interacts with, and actually contributes to policy making and public deliberation. Our discussions with practitioners in the field and political decision makers provided us with a wealth of situational knowledge. Political philosophy and ethics helped us to outline, test and justify practical proposals; taking contextual factors and the complexities of public health practice into account also enabled us to adjust and further develop theoretical and principled arguments in moral and political philosophy.

This book therefore combines philosophical analysis with practical policy proposals, and this combination recognizes the importance of fundamental individual rights, the role of democratic decision making, and the inherent tension between the two. Ultimately, however, the question about how the state should respond to vaccine hesitance cannot be decided by ethical analysis alone. An ethically justified approach to vaccination can only become legitimate when it is discussed in public debates and is ultimately the outcome of a democratic process in which all relevant interests have been taken into account, especially the special protection that fundamental rights deserve. The fact that this is such a controversial topic only reinforces the importance of such a democratic process.

The controversy surrounding this theme was both a blessing and burden. On the one hand, we enjoyed having our op-eds published and being able to discuss our ideas on national radio and TV. It is a godsend for an academic if their research topic suddenly becomes world news. On the other hand, we also experienced personally how polarized the societal debate had become; there were disagreements not only on the status of normative principles and fundamental liberties but also, increasingly, about which facts, institutions, and people can be trusted and which cannot. In such a context, it will often be impossible to develop a discussion merely by offering a philosophical analysis. The angry responses, insults, and personal threats we received made it clear that some citizens considered us to be dangerous, self-interested, untrustworthy nonexperts who were probably paid by the pharmaceutical industry or government to prepare society for a new world order.

These extreme reactions may be characteristic of societal debates nowadays. At the same time, we see that most policy makers, politicians, scientists, and co-citizens are very interested in, and open to philosophical reflection on the dilemmas that arise in times of vaccine hesitance. The fact that public debate is sometimes overheated does not imply that we should abandon critical ethical reflection on a topic like this. Ideally our book will contribute to fundamental debates in philosophy of law and ethics, but especially also to political decision making and responsible vaccination policies. We hope that it will not only be read and discussed in academic circles, but also by professionals and policymakers in public health. Even though a large part of our analysis centers around the idea of proportionality, which is most prominent in the European legal tradition, the overall argument is relevant in any liberal democratic jurisdiction, including the United States of America.

While we were writing this book, many academics and practitioners in the field engaged with our project. We have learned a lot from discussions with scientists in the Health Council of the Netherlands (Gezondheidsraad) and from our various interactions with infectious disease specialists from the National Institute for Public Health and the Environment (RIVM) and the WHO. It was great to discuss some early chapters with our colleagues at the Philosophy chair group at Wageningen University and the Paul Scholten Centre for Jurisprudence at the University of Amsterdam. We are especially grateful for the generous comments we received at a manuscript symposium in October 2021 in Amsterdam. Justin Bernstein, Alberto Giubilini, Mariëtte van den Hoven, Steven Kraaijeveld, Mark Navin, Dorit Reiss, and Brigit Toebes had read the first complete draft and offered in-depth critical yet constructive feedback. We also want to thank the reviewers for their suggestions that helped us to improve many small and larger arguments in the book. Parts of the book build on analyses we have published in papers in academic journals, including Public Health Ethics, Vaccine, Journal of Applied Philosophy, Ethnicities, American Journal of Bioethics, het Tijdschrift voor Recht en Religie, and het Nederlands Juristenblad. Section 4.4 is more or less a reprint of Marcel’s paper The (un)fairness of vaccination free riding, published in Public Health Ethics. We are grateful for being able to use this earlier work.

The societal debates, epidemiological developments, and all the academic interactions and contributions to policy making may have significantly delayed the completion of the book. At the same time, all these interactions made this project an endeavor that we enjoyed immensely. They have been invaluable in the development of the central line of our argument and our discussion of policy options for regulating collective immunization. We are grateful for all these opportunities, and we genuinely want to thank everyone who directly or indirectly contributed to this work. We also express our gratitude for the financial support we received from the Netherlands Organization for Health Research and Development (ZonMW 522004004).

May 2023

Marcel Verweij and Roland Pierik

1 Controversies and Complexities of Vaccination: An Introduction

Since Edward Jenner’s first tests inoculating people with a cowpox-infected substance to protect them against smallpox at the end of the eighteenth century, and the immunization movements and policies that developed rapidly afterward, vaccination has become simultaneously a lauded and a controversial phenomenon. It has been highly successful in reducing outbreaks of infectious diseases and has been embraced by a large majority of populations in all countries, but at the same time, it has always been met with criticism, doubt, and resistance. Coverage of vaccines that protect against diseases such as diphtheria, tetanus, polio, pertussis, and measles is high in high-income countries, as well as in many middle- and low-income countries. Vaccination has led to the global eradication of smallpox and to the elimination of polio in almost all regions worldwide. Measles and other diseases that only decades ago were still considered inevitable and potentially dangerous childhood diseases are now relatively rare, at least in affluent countries.

Not all citizens take the benefits of immunization for granted, however: some people question the necessity of vaccination, claim that the risks of vaccination outweigh the benefits, or argue that preventive vaccination conflicts with their religious or secular worldviews. People thus appeal to a variety of concerns to forgo or resist vaccination for themselves or their children. Even countries with a high immunization coverage usually face local pockets of undervaccination (e.g., religious communities in the US and the Netherlands) in which outbreaks of vaccine-preventable diseases remain a constant threat. Moreover, the same general doubts about immunization complicate proposals for introducing novel vaccines and vaccination programs, like in the recent COVID-19 pandemic. We start this chapter with three examples that illustrate these concerns: the reemergence of measles outbreaks due to declining immunization rates, the low uptake of the relatively new vaccine against human papillomavirus, and deep controversies about immunization during the COVID-19 pandemic. The three cases set the stage for our analysis of the central problem in this book: what policies can be ethically, legally, and politically justified in response to vaccine hesitancy?

1.1 The 2014 Measles Outbreak in the US

Measles is one of the most contagious infectious diseases. An unvaccinated person who is exposed to the virus has a 90 percent chance of becoming infected. The disease kills one person in every 5,000 cases in high-income countries and as many as one person in every 100 cases in low-income countries (Oxford Vaccine Group, 2015). The risk of serious complications and death is increased in children younger than five years and adults older than twenty years (Strebel, 2018). On a global scale, measles kills 135,000 persons each year, mostly children (World Health Organization, 2019). In the 1960s, a live-attenuated measles vaccine was introduced for children aged around fourteen months. A decade later, this vaccine was included in the MMR (measles, mumps, rubella) triple vaccine, which is mostly given to children at around the age of fourteen months and again at nine years old. Vaccination has contributed to a stark reduction in measles cases in many regions, but outbreaks are still observed in regions with clusters of undervaccination, such as the Bible Belt in the Netherlands. In 2000, the disease was declared eliminated in the US (Nigel et al., 2004). Since then, however, new outbreaks have occurred there. Among the twenty-three outbreaks in the US in 2014, there was one large outbreak, 383 cases, that occurred primarily among unvaccinated Amish communities in Ohio (Sundaram et al., 2019). Early in 2015, a multistate outbreak occurred that originated from infections in Disneyland in California, causing illness in around 150 mostly unvaccinated persons, children as well as adults (Jalabi, 2015). Even though the number of outbreaks in 2015 was not dramatically higher than in earlier years, the Disneyland outbreak caught the attention of vaccinating parents who realized that the emerging vaccine hesitancy could bring back diseases that had been under control for decades (Hausman, 2019). The Disneyland outbreak thus focused both societal and political attention on the impact of vaccine hesitancy, vaccine refusers, and the antivaccination movement. Although childhood vaccinations are mandatory in all states in the US, more and more parents have been granted personal belief exemptions, facilitating new outbreaks such as the one in Disneyland. The controversy about such clusters of infectious diseases led to new state legislation (in California and in other states) tightening mandatory immunization programs or abandoning personal belief exemptions altogether (Navin & Attwell, 2023).

1.2 Unpopular from the Start: Vaccination against Human Papillomavirus

In 2006, a vaccine became available against human papillomavirus (HPV), and it was relatively quickly adopted over the next few years in many countries worldwide. HPV infections are the most important cause of cervical cancer, which causes around 270,000 deaths a year, mostly in low- and middle-income countries. Compared to existing vaccines, the HPV vaccine was relatively novel as the aim was not so much to protect against HPV as a symptomatic infectious disease but against the harmful effects of sustained infection over time. Two other novelties were the fact that HPV is first and foremost a sexually transmittable infection and that the main target group for vaccination was, at that time, girls who were not yet sexually active. These aspects and concerns about alleged side effects featured in public debate, and at least in some countries, such as the Netherlands, the initial vaccine coverage was much lower than envisaged (Gefenaite et al., 2012). The Dutch program was initiated in 2009, targeting eleven- and twelve-year-old girls and including a one-off catchup program for thirteen- to sixteen-year-old girls. In the first few years, immunization coverage barely exceeded 50 percent, which was much lower than the 95 percent vaccination rates that were normally realized in infant immunization schemes in the Netherlands (van Lier et al., 2011). For the first time, governments were confronted with a massive public debate on social media featuring hesitance about and active resistance toward vaccination, showing distrust in health authorities, and highlighting rumors and fears.

1.3 Polarization in the COVID-19 Pandemic

The COVID-19 pandemic that began in 2020 and was caused by the SARS-CoV-2 virus has made it patently clear that massive epidemics are not phenomena that only affected a distant past—they can still acutely disrupt current societies. In many places in the world, dramatic societal measures were imposed to control infection rates, to protect the health and save the lives of citizens, and to sustain health care facilities that were overwhelmed by the influx of seriously ill patients. Around half of the world’s populations faced national lockdowns that included travel restrictions and the closure of schools, universities, shops, and other businesses, and people were often expected, and sometimes forced, to stay at home as much as possible. Large public and private investments in vaccine development resulted in the development, approval, and mass production of vaccines in less than a year, and those vaccines appeared to be highly effective. Mass vaccination was generally considered the most important strategy for containing the pandemic and abandoning or relaxing lockdown measures, but many people also had doubts about the safety of these novel vaccines. Vaccine hesitancy and refusal were reinforced by misinformation: it was claimed that the vaccines resulted in many adverse events, and the pandemic itself was considered a lie made up by governments that just wanted to control citizens. It was also suggested that vaccines would modify people’s genetic makeup or that they contained microchips that enabled governments to track citizens. Not all vaccine hesitancy, however, should be directly linked to (some of the more outrageous forms of) fake news. For example, given the speed of vaccine development, it should not have been a surprise that people had concerns about safety. Regardless of the background of hesitancy in different societies, debates about vaccination became more and more polarized during the later waves of the pandemic, especially when health care systems and intensive care units were flooded and sometimes overwhelmed with mostly unvaccinated patients.

In contrast to other vaccination-related controversies, this time it was not so much about childhood immunization but about the vaccination of adults, who, unlike children, are considered to have a far-reaching authority to make their own choices about medical treatments. Yet the context of a global pandemic, with dramatic infection control measures already in place, gave governments a very broad palette of policy opportunities, including more coercive approaches, to persuade or force citizens to get vaccinated. For example, some citizens were required to show so-called COVID-19 admission passes (cf. section 8.3) to access social events, pubs, and restaurants and, in some cases, even to be allowed into their workplace. All these discussions led to further polarization and division between citizens who embraced the immunization program, including subsequent boosters, and those who refused COVID-19 vaccines.

1.4 Vaccination Policies in Times of Resistance: An Uphill Battle?

Public health authorities are struggling with questions concerning how to respond to a lack of confidence in or even public distrust of vaccines and vaccination programs and how to shape policies that ensure the protection of public health. The controversies about vaccine hesitancy in the preceding sections (measles, HPV, and COVID-19) illustrate some of the key complexities that surround immunization policies.

One complexity is that vaccination involves individual choices that have public consequences and vice versa. The COVID-19 pandemic has shown how polarized debates can reinforce vaccine hesitance and refusal, which in turn impede societal attempts to overcome the pandemic. In relation to measles and other childhood diseases, many vaccine-hesitant parents assume that the benefits of vaccinations for their child, or for society in general, do not outweigh the risks they associate with vaccination. Yet their choice to forgo immunization not only affects the interests of their own child but also contributes to a decreased level of protection on a group level, which creates increased risk for those who cannot be vaccinated, for example, children who are too young to receive their first shot or (vaccinated) persons whose immune systems are weakened due to disease or other conditions. For various reasons, these aspects are less prominent in relation to HPV vaccination, but HPV did show how a public immunization policy has implications for issues that are considered rather personal and private matters: preadolescent girls and their parents were forced to think about sexual activity and the risk of acquiring sexually transmitted infections. For many parents and girls, this is a sensitive topic that they might prefer to avoid discussing.

A second complexity of immunization programs is that they aim to prevent disease, so their success is often a remote, if not invisible, entity to individuals. This may not be the case during an epidemic, but it is certainly so for most routine (childhood) vaccination programs. In normal circumstances, programs are implemented when there is no threat of an acute outbreak. Teenagers are vaccinated against HPV to protect them against a disease in the distant future. As humans, we consider ourselves rational beings, but we can easily neglect or discount long-term risks. Moreover, our knowledge of the benefits of vaccination is often distorted because its success is only visible on a population level. For individual persons, the effect of a successful vaccination is a nonevent: they are not infected and thus remain healthy. Yet no one will ever know whether they would have become ill if they had not been vaccinated. This complexity makes it more difficult to persuade people by pointing out the benefit of immunization. And vaccination failure—cases of infection that occur notwithstanding the fact that the person was vaccinated—always stands out, and so do (alleged) side effects of vaccinations. Hence, it is no surprise that public health authorities and medical professionals sometimes struggle to persuade hesitant parents to accept immunization of their children. A full assessment of the benefits and burdens cannot be made by appealing to individual observations but requires a population perspective—that is, an evaluation of the epidemiological evidence concerning infection risks and vaccination safety.

This also brings a third complexity and controversy to the surface. Vaccination programs should be based on robust scientific evidence about infection risks and vaccine effectiveness and safety. Ideally, such evidence also helps to persuade citizens to endorse immunization and participate in programs. Most people, however, do not make up their mind on the basis of a rational assessment of the available evidence. They often defer to expert assessment or simply trust their general practitioner or other health care professionals. But choices are also affected by experiences with previous vaccinations, personal anecdotes of friends, and stories shared on social media—and these can easily exaggerate concerns about safety and downplay the importance of immunization. Nowadays, people are confronted with an abundance of information and perspectives via the internet and other media—including some sources that are reliable and others that are not. Moreover, a lot of deliberate misinformation and messages are available that aim to trigger doubt and skepticism about vaccines (Donzelli et al., 2018; Ginossar et al., 2022; Wolfe et al., 2023). Governments cannot and should not assume that the provision of good, reliable information will guarantee a high uptake in collective immunization programs. Such (often abstract) information is certainly necessary, but it will also be rather ineffective in persuading citizens who are already skeptical about experts or governments.

The diversity of the vaccine-hesitant population (cf. chapter 3) constitutes a fourth complexity for public health programs. Given the—often invisible—benefits of immunization, it is not strange that many people pay more attention to possible side effects and therefore postpone or forgo immunization. Yet it is not just the alleged side effects of immunization that lead people to avoid vaccines. Several religious groups consider immunization (or some forms of disease prevention in general) to be an act that seeks to preempt divine providence. If parents assume that the health of their children is in the hands of God, they may conclude that it is not up to them to prevent illness by means of immunization. Nonreligious worldviews can also motivate vaccine hesitance, for example, a view that emphasizes naturalness, purity, or the innocence of infants—suggesting that vaccination interferes in natural processes that are good in themselves. Anthroposophist groups see childhood diseases as important stages in childhood development and consider coming through such an illness as ultimately beneficial for the child. Finally, some groups reject vaccination programs for more political reasons. If one sees any government policy as intruding in the private lives of citizens, then it may easily follow that government-imposed collective immunization programs are evil. These diverse motives for vaccine hesitance can also reinforce one other, and different groups may find each other when fighting for a similar objective: to resist government-led immunization programs.

The complexities surrounding collective vaccination pose a deep problem for public health authorities and governments. High immunization rates are necessary to protect against potentially dangerous diseases. Vaccine hesitancy may well result in a comeback of almost forgotten diseases such as measles, diphtheria, or polio, and it inhibits effective government responses to pandemics or other disease outbreaks. But if, given the complexities just mentioned, it is not to be expected that evidence-based information will persuade vaccine-hesitant persons to get vaccinated, the question arises what public health authorities should do. To what extent should citizens with doubts about immunization or those who actively resist it be persuaded, pressured, or legally obliged to accept it? What is the role of government in this controversy? These are the main questions that we will explore in this book. Before outlining our approach, let us first look in more detail at what vaccination is and how collective immunization programs have evolved throughout the centuries.

1.5 Immunization and Immunization Programs

Vaccines have become one of the most important tools of preventive medicine against certain virus- and bacteria-induced diseases. For infections with viruses, there is often no curative therapy; they can only be countered by an organism’s immune system. Vaccination is the deliberate exposure of an organism to a weakened or killed version of a pathogenic microbe, or just a part of that pathogen, to induce the organism to produce antibodies. This initial production of vaccine-specific antibodies enables the immune system to recognize a real pathogen if exposed to it and to rapidly produce antibodies to fight it. Hence, a successful vaccine triggers the immune system and thus immunizes the organism against the pathogen, without inducing the actual disease and the risks it generates. Throughout the book, we will use the