A Citizen's Guide to Indiana

One of the patterns I’ve noticed in the ongoing COVID-19 debates is a resistance to preventative measures and a desperate desire for post-illness treatments. (I have no professional background, but I think this would be a “therapeutic” — something that treats the disease in a remedial way.) You see this in the folks who don’t want to wear a mask or take a vaccine but would rather glom on to hydroxychloroquine or ivermectin or whatever the snake oil of the day comes along. They much prefer a pound of cure to an ounce of prevention. The psychology behind this is interesting to me. I guess it has something to do with humans being generally poor at risk assessment. The masks and social distancing are inconvenient — they impose a cost that you can feel and see. The vaccine has a risk that you are choosing to submit to. Voluntarily submitting to risk, cost, and inconvenience is psychologically uncomfortable. These are probably limbic system reactions. Meanwhile, it’s up to the less visceral, rational part of your brain to understand that there exists in the world a risk of catching COVID and that the impact of having the disease is likely to be greater than the risks of the vaccine or the costs of the other mitigation strategies. That rational understanding of risk is even more attenuated when you’re talking about the idea that you might be a vector of COVID that harms other people.

And so the limbic system conjures up all kinds of reasons not to listen to the neocortex. Masks make you breathe poison. The vaccine isn’t FDA approved. Etc. But when it’s demonstrated that masks don’t cause you to breathe poison and the FDA does give full, final approval for the vaccine, you’ll see these folks shift their reasons. The limbic system doesn’t really care. It’ll come up with new reasons to ignore the neocortex. And these folks will continue to be vectors of COVID and incubators for further mutations.

You don’t have to take a bullet for America. Just take a needle for your neighbor.

I’ve long slagged on libertarians for not having a good drainage plan. My attitude toward “personal choice” rhetoric in a pandemic is an offshoot of that. A neighbor’s bad decisions about drainage can hurt my property because water doesn’t respect property lines. Similarly, your bad decisions about spreading plague affect those whose air you breathe. There’s a tension between liberty and community.

Locally, we’ve got people talking about “family choice” and whether their kids should be required to wear masks at school. Presumably we’ll get the same kind of rhetoric about “choice” once the COVID vaccine is approved for kids. In these conversations, one of the disingenuous talking points they like to raise is “have your kid wear a mask.” They deeply want individual decisions about risk to impact only the individual making the decision. But, that’s not how things work in a community. Your mask isn’t to protect you from the community. You should wear a mask so that the community is protected from you (you filthy anti-vaxxed plague vector.) The vaccine does have more direct benefits in protecting you from the rest of the community. However, it also helps protect the community from you — you are less likely to pick up viruses and spread them and, importantly, you are less likely to be an incubator for mutation. Another disingenuous talking point is that none of us who are vaccinated should be concerned about their disease status if we “trust” the vaccine. Of course, the vaccine isn’t 100% effective, there are those too young to be vaccinated, and there are those who are immuno-compromised for whom the vaccine is not as effective and/or not recommended.

I’m not breaking any new ground with these thoughts. These counterarguments have been advanced ad nauseum. Anti-vaxxers and anti-maskers mostly ignore them or pretend not to understand them. I suppose it’s related to Upton Sinclair’s quip that “it is difficult to get a man to understand something when his salary depends on his not understanding it.” For the most part, (a few grifters and political strivers notwithstanding) there is no financial incentive to the anti-vaxxers and anti-maskers. I think there’s a lot of tribal identity at play. They certainly don’t see themselves as vectors of disease, harming their neighbors. They don’t see themselves as the asshole unvaccinated who will be the reason our community events have to be shut down. Rather they fancy themselves bold defenders of freedom. Independent thinkers who see more clearly than the rest of us sheep. But, at the end of the day, it’s tough to take seriously the big talk about how they’d take a bullet for their country when they won’t take a needle for their neighbors.

My buddy who is a doctor in southern Indiana and has been living with the harsh realities of treating COVID patients has, from time to time, been chastised about his severe language in relation to people who don’t take the pandemic seriously, who refuse to get vaccinated, and who stand in the way of public health measures to mitigate the spread of the disease. He appreciated my observation that William Lloyd Garrison had a relevant quote:

“I am aware that many object to the severity of my language; but is there not cause for severity? I will be as harsh as truth, and as uncompromising as justice. On this subject, I do not wish to think, or to speak, or write, with moderation. No! no! Tell a man whose house is on fire to give a moderate alarm; tell him to moderately rescue his wife from the hands of the ravisher; tell the mother to gradually extricate her babe from the fire into which it has fallen; — but urge me not to use moderation in a cause like the present. I am in earnest — I will not equivocate — I will not excuse — I will not retreat a single inch — AND I WILL BE HEARD.”

The 7th Circuit, in an opinion written by Judge Easterbrook, made short work of a challenge by anti-vaccination students challenging IU’s requirement that students get vaccinated. Specifically, the policy requires students to be vaccinated as a condition of attending the university unless they qualify for a religious or medical exemption. Six of the eight plaintiffs claimed to have some sort of religious reason for not getting vaccinated. The seventh qualified for the religious exemption but wasn’t claiming it. And the eighth wasn’t eligible for any of the exemptions. Those who claim exemptions have to wear masks and get tested twice a week.  The students were asking for injunctive relief (meaning that they wanted the courts to prohibit the university from enforcing the policy.) At the district court level, the judge issued a long (101 page) opinion denying their motion. On appeal, the 7th Circuit was more efficient (4 pages). (Seriously – go read the opinion, it’s one of the better crafted opinions I’ve seen.)

The legal bedrock for these kind of cases is the 1905 Supreme Court opinion in Jacobson v. Massachusetts. In that case, the Supreme Court affirmed the criminal conviction against a man who refused to get a compulsory smallpox vaccination. Citing Jacobson, the 7th Circuit in this case says there can’t be a Constitutional problem with requiring a COVID vaccination. There is no substantive due process right being violated because vaccination requirements, like other public-health measures, have been common in this nation for a long time. In fact, the 7th Circuit says, this case is easier than Jacobson.

First, Jacobson had no exception for adults. IU allows exemptions. Those who claim exemptions have to get tested twice a week and wear masks which, the 7th Circuit observes, are not Constitutionally problematic requirements. Second, where the Jacobson case involved everyone in the community, IU isn’t the only place to get an education. Students can go elsewhere if vaccines and testing are simply intolerable to them. The Court recognized that a University has the right to determine what’s necessary to keep students safe in a congregate setting. Vaccinations protect not just vaccinated persons but also those who come in contact with them. The Court also makes analogy to other rights which are not violated by a University imposing conditions of attendance. A student has a right to property, but it’s not a violation of that right for the University to require the student fork over $11,000 worth of that property as a condition of enrollment. A student has First Amendment rights to expression, but that right is not violated where a University requires students to read something they prefer not to read or write something they prefer not to read “even if the student deems the books heretical.” And, at this point, Judge Easterbrook just seems to be having fun. “A student told to analyze the role of nihilism in Dostoyevsky’s The Possessed but who submits an essay about Iago’s motivations in Othello will flunk.”

If conditions of higher education may include surrendering property and following instructions about what to read and write, it is hard to see a greater problem with medical conditions that help all students remain safe when learning. A university will have trouble operating when each student fears that everyone else may be spreading disease.