Thursday, April 30, 2009
The Morgan Lewis law firm has promulgated a useful FAQ (pdf) for employers who wonder how to deal with employees that may have swine flu. The short version: Tread very carefully lest you violate somebody's rights.
The Morgan Lewis memo, plus a conversation that I had earlier today over another swine flu story, reminds me of a hypothesis that I have had for some years: That the massive expansion of individual rights in rich countries in the last fifty years derives substantially from the invention of antibiotics and the mitigation of infectious disease as a leading cause of death. The perhaps temporary defeat of infectious disease as a major threat in rich countries has meant, first, that we no longer have to take swift and harsh public health measures to contain epidemics, and, second, that there are no longer visible examples of the brisk application of the police power without associated due process. From a post I wrote more than five years ago, when perhaps eight people a day read this blog:
It is no coincidence that the rise of legally cognizable individual rights in the United States and Europe during the last 50 years corresponded with the antibiotics era. When virulent infectious diseases posed a mortal threat to virtually all Americans -- as they did before World War II -- we needed government to act swiftly, and without anything resembling due process, to quarantine infected or even merely exposed individuals in order to isolate outbreaks before they spread widely. We understood instinctively that we had to impose harsh measures on individuals in order to protect the public. We didn't give a damn that sometimes we had to board people up in their houses or make them take a shot because we knew that the consequences of doing otherwise could be devastating. Does anybody believe that smallpox could have been confined to its tiny little lockbox if vaccination for the disease had been voluntary?
The defeat, or at least the subsidence, of infectious disease since World War II meant that we no longer needed our government to impose these harsh obligations on individuals for the public good. As a result, we see very few examples today of individuals who are required to bear great (or even small) individual burdens for the benefit of the public, so any such circumstance looks like a great injustice and therefore becomes the subject of litigation.
I served that theory up this morning to my physical therapy colleagues (have I told you about my two frozen shoulders?), and they thought there was a lot to it. Perhaps they were just humoring me.
We should have quarantined (permanently) everyone with AIDs in 1981.
I remember quarantine notices on doors of houses during my first year in school. I used to try to read the words. And I waved at the kids inside when they looked out the windows.
Shoulders ... should you go the surgical route, I highly recommend on Francis X. Mendoza, who performs surgery at Lenox Hill hospital. I suffered with shoulder pain for 23 years, and he fixed it 14 years ago. At about your age, I can military press more than any point in my younger years (most I've done or tried is 195), largely due to how messed up the left side was.
FWIW, I know some how have benefited from physical therapy. I tried PT on a few other joints (which he also repaired), with virtually no improvement. Likewise the shots, which are temporary fixes, and said to do more harm than good.
As for individual rights ... yep ... and those idiots exercise their 'right' to get lots of other people sick by coming to work, or venturing out to spread their germs.
That's a viable thought, and of course, most theories concerning the quality of life in the modern world center almost exclusively on the progress of medicine. To propose that perhaps freedom itself has been allowed to flourish because of medical advancement is remarkable. However, the era of Kant and Jefferson birthed ideas of absolute individual freedom, with relatively poor medical progress.
On the other hand, you make a good point in that the major implementation of free societies involving vast amounts of people probably couldn't exist without the progress of medicine we see today.
Your point regarding due process/police state is interesting is well, up until very recently, the police state in the U.S. was still involved in the planning and occassional implementation of quarantine and vaccine runs.
Nice, got me thinking.
My father's family owned a summer cottage in Kennebunkport, Maine from 1920 until the early 1960s. It was a near the water, where my father kept his knockabout sloop, and had plenty of rooms, but it was uninsulated, and was heated in the most inefficient way -- fireplaces. If the plan was to use it from after Memorial Day to Labor Day, that method worked OK.
In 1931, there was a polio outbreak in a number of U.S. cities, including Philadelphia (my father grew up in the shadow of the Penn campus). About 4,000 people died nationwide, about 12% of the reported cases, and many more were crippled for life. My father and his family were told by Philadelphia health authorities and by their school headmasters to stay in Kennebunkport until the epidemic was over, which was not until late October / early November. My father and his sisters attended school for about 8 weeks in Kennebunk, just up the road. He says that it got a bit chilly in the cottage at night when the temperatures dropped into the 30s!
It is very hard to imagine such a scenario taking place today -- authorities essentially saying, if you don't absolutely have to come back to your home, don't come back.
To TigerHawk's point, the removal of such a threat has has perhaps changed the capacity of society to deal with it when it does happen again. That is, we have a much greater technological capacity to treat, but a different cultural willingness to hunker down in the face of a massively lethal pandemic. Regarding DEC's point about AIDS, the key vectors were of course the bath houses in SF and NYC, which the gay communuity was at first reluctant to shut down. To say that those communities were decimated understates it.
"That the massive expansion of individual rights in rich countries in the last fifty years derives substantially from the invention of antibiotics and the mitigation of infectious disease as a leading cause of death."
I think my father would have agreed. All of his teachers in medical school were from the pre-penicillin age and had very different ideas about public health than we have today. I have posted his quote before, but when asked about the "good old days," he would say, "before penicillin there were no good old days".
Good. I have been sick (flu-type things) for 4 days in the past 6 years or so. But a related issue, for most average Joes, is that the spread (and overuse) of antibiotics has got people out of the habit of staying home when sick (and they return to school rapidly, when still ill, so parents can go back to work, or back to work, when they are still contagious).
Where I work, everyone is terrified of being laid off in the second round of layoffs approaching, and people do not feel they can risk being thought to be malingering by staying home even when genuinely ill. Managers, of course, do whatever the !@#$ they feel like.
Also, most employers assume that you should either magically stay well or be treatable in 24 hours. Along with this, I meet very few people who, when sick, ever consider the health of those in their office (and most ordinary people these days are in open plan cubicle offices, with no outside air, so illness spreads like wildfire, as in those Victorian houses sealed against miasma).
On the one hand, people are angry at you for coming in to work sick and spreading your germs, on the other, you don't want to seem weak or a faker staying home. In practice, what this means is that people who are contagious dope themselves with whatever medicines they can find to conceal their symptoms, while coming to work sick. This doesn't matter when it is just a cold (unless an unfortunate coworker is immunosuppressed), but could be a big problem with a lethal variant of the flu.
All of which is a longwinded way of saying that the job consequences of being sent home sick are more severe these days and, therefore, as with mandatory punishments for misbehaving schoolchildren for drinking, etc. administrators become unwilling to enforce them.
The reason why military and police will have to implement genuine quarantines if necessary.
All of the examples I've seen listed here in the article and comments (flu, polio, AIDS) are viral infections. Antibiotics are useless against a virus. They only work against bacterial infections.
Anyone who knowingly goes to work when they might be coming down with the flu deserves to be fired.
Communicable disease or terrorism; our ideal of individual rights presumes (pre-assumes) some basics, like: our society is not seriously threatened with annihilation in the coming year. Take away that safety factor and see how quickly the Left signs on to "shredding the constitution."
For some reason, "General Order No. 11" comes to mind. There may be an underlying principle here that however harsh the emergency measure, it be designed and implemented in such a way as to allow the situation prompting it to return to normal, and the measure to be rescinded, as quickly as possible.
(General Order No. 11 was undeniably loathsome but quite effective in stopping large-scale raids along the Missouri-Kansas border.)
Antibiotics? No. They have, little to do with the advances made against major infectious diseases that were responsible for harsh public health measures. Most of the latter were viral diseases, and antibiotics increased survival from a different set of heath problems unrelated to pandemic, although avoidance of streptococcus-caused complications and treatment of some kinds of pneumonia shouldn't be scoffed at as nothing.
Also 50 years is a peculiar time frame to choose.
The general premise that improvements in management of public health threats from infectious disease is itself questionable in the larger question of increasing liberty, even if there is some small truth to a relaxing of emergency states justifying state intervention.
One could easily argue that in general the opposite is true, that management of the public health has expanded into a nanny-state.
I myself would credit improvements in sanitation, food production,expansion of the power grid and availability of cheap electricity, refrigeration, management of pestilence (mosquitos, etc) air conditioning as concommitant boons at least as responsible for improved public health as antibiotics.
"It is no coincidence that the rise of legally cognizable individual rights in the United States and Europe during the last 50 years corresponded with the antibiotics era."
It didn't correspond to that; it corresponded, if to anything, to 1776. Don't know if you've noticed, but we have no legal right de jure and no right in fact to be Typhoid Mary, then or now.
To put it another way WTF balderdash are you going on about? No, neither better medical care nor antibiotics specifically have anything to do with the existence of theoretically nor practically with the exercise of individual rights, because you've never had the right to spread disease, and still don't.
SarahW, I appreciate your point about antibiotics, which is well-taken, but think of them as a placeholder for the reduction of infectious disease from a major killer to a very minor one.
Anon 11:24 - Until the Warren Court era, most of the rights that you date to "1776" were easily displaced by police action of one stripe or another for the common good. Until the '30s, police and public health authorities routinely quarantined people, for example, without any due process or recourse. That was a powerful example that, I believe, influenced broader social attitudes toward state power. Once the example of the quarantine and other public health measures went away, rights of due process, particularly vs. the police power, became much more emphasized.
The elephant in the room here, of course, is what happens when quarantines meet the Second Amendment - that is, when the people you're trying to quarantine happen to be ready, willing and capable of resisting you with deadly force? Put another way, at what point does maintaining a quarantine cease to be worth it in terms of near-term bloodshed and long-term animosity, which would probably make that Branch Davidian unpleasantness seem like a minor isolated nuisance in comparison?
What's the history of the use of extensive police power for public health? When did large-scale quarantines, etc., start being used? Was there much of that in the 19th century, or is it a Progressive-era phenomenon?