Monday, May 05, 2008

Who lives and who dies? 

A "task force" of public and private experts has written a triage protocol for the treatment of patients during a pandemic. The idea is to invest over-taxed medical resources in the treatment of patients who have a chance to live:

Those out of luck are the people at high risk of death and a slim chance of long-term survival. But the recommendations get much more specific, and include:

-People older than 85.

-Those with severe trauma, which could include critical injuries from car crashes and shootings.

-Severely burned patients older than 60.

-Those with severe mental impairment, which could include advanced Alzheimer's disease.

-Those with a severe chronic disease, such as advanced heart failure, lung disease or poorly controlled diabetes.

The article makes the point that modern anti-discrimination laws may bar the implementation of these protocols:
Public health law expert Lawrence Gostin of Georgetown University called the report an important initiative but also "a political minefield and a legal minefield."

The recommendations would probably violate federal laws against age discrimination and disability discrimination, said Gostin, who was not on the task force.

When the huge airborne Ebola pandemic strikes, expect litigation from civil rights groups to block the implementation of triaging protocols that maximize the saving of lives. When this happens it should neither surprise nor outrage people, at least those on the libertarian left. It is, after all, precisely the same logic applied by those who object to the NSA's wide net eavesdropping or the indefinite detention of a few hundred foreigners in Gitmo. As we are constantly reminded, the rights of the few outweigh the lives of the many.

There is no small irony here. I have long thought that it was not coincidental that the rise of the individual rights era in Western democracies closedly followed the widespread use of antibiotics. As long as infectious disease was the leading cause of death individual rights as they are understood today would have come at an unacceptable price. With the (perhaps temporary) end of infectious disease as a major threat, death became a fundamentally individual phenomenon. Me, more than four years ago:
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.

So it was antibiotics and vaccine that created the political climate necessary for today's individualist and litigious culture. It is therefore ironic that individualism is the basis for attacking programs to control the spread of infectious disease.

If infectious disease returns as a leading cause of death in the West we can expect a wholesale revision in our regard for "anti-discrimination" laws, at least in certain contexts. The collision of public health and individual rights will have massive legal and social consequences that reverberate beyond the immediate crisis. Of that I am all but certain. The question is, what will those consequences be?

CWCID: Glenn Reynolds.


By Anonymous Anonymous, at Mon May 05, 12:30:00 PM:

Sorry to say, this may be a case of the cheese merchant arguing the decline of Western civilization is due to stricter pasteurization regulations and the decline of raw-milk cheeses.

Regardless, there can't be democracy without the rights of the individual being protected. If you turn your argument around and apply it to the environmentalists' imperative arguments, I think you will see the problem more clearly.  

By Blogger TigerHawk, at Mon May 05, 01:02:00 PM:

Regardless, there can't be democracy without the rights of the individual being protected.

True, but there is huge room for maneuver within that idea. Blacks aside, we had a perfectly good democracy for many generations before the era of rights-based litigation. The democracy would do just fine with the level of individual freedom that prevailed in, say, 1920.

Not sure what your cheese merchant metaphor is about, but maybe because I am tired.  

By Blogger Roy, at Mon May 05, 02:50:00 PM:

I think you need to investigate that wonderful 1920s a little more closely, it wasn't nearly so free or liberated as you seem to think, and the abuses of that society, in which public health authorites were sterilizing the "unfit" for things like "congenitally immoralality," and the just general abuse of the weak and unpoppular at the hands of authority. It wasn't just minorities who suffered. And it wasn't just minorities who had no recourse when their betters decided what was better for them. I may be a libertarian and a Republican but I sure as heck wouldn't want to surrender myself to the tender mercies of 1920s America.  

By Anonymous Anonymous, at Mon May 05, 07:17:00 PM:

As more than one sage has said, the Constitution is not a suicide pact. At times collective rights outweigh individual rights. There are times when discrimination is necessary to preserve life.

If the pandemic were to come, how could you justify exhausting medical resources on those not likely to survive while allowing otherwise healthy people to die because of it?  

By Blogger Dawnfire82, at Mon May 05, 10:26:00 PM:

Perhaps a visitat to the era of the Spanish Flu would be in order?  

By Blogger Noumenon, at Tue May 06, 01:02:00 AM:

I don't oppose eavesdropping and detention because they're mean or offend people. I do it because I think the government is more likely to use those tools to suppress political opposition than terrorism. I'm not sure there is a big risk of the government quarantining disfavored groups on trumped-up charges, so it could get my OK.

However, quarantine, like the draft or any other tax that falls disproportionately on some individuals, is a very dangerous power to give to something as stupid as the government. Bush suggested quarantine in the event of the avian flu; that would cost lives without saving any. The Army would be shooting people transporting medical supplies while the flu was spreading anyway, too transmissible for quarantine to work.  

By Anonymous Anonymous, at Tue May 06, 10:32:00 AM:

I would just like to point out that anti-biotics don't work on viruses. The Spanish Flu epidemic of 1918-1919 illustrated that government can be helpless to stop the spread of disease. The Spanish Flu simply had to run it's course and it was up to the individual's immune system, not government decrees, to survive. As for the individual freedom, 1920 v. today, I would glady take the 1920 freedom. No nanny state regulating our every move.  

By Blogger Noumenon, at Tue May 06, 11:25:00 AM:

The Spanish Flu epidemic of 1918-1919 illustrated that government can be helpless to stop the spread of disease.

I think it illustrated that government can use its control over society and the flow of information to make the spread of disease worse. See John M. Barry's book The Great Influenza, here's part of the review:

Barry provides a fascinating picture of the response of the government -- both federal and local. The former was sluggish at best and secretive and dishonest at worst, desperate to keep the war effort going and the public calm and to minimize the severity of the disease.

In one of the more gripping chapters, Barry focuses on Philadelphia and tells us of the backwardness of its social infrastructure, the lack of a functioning health department, and the power of the local political machine. Dr. Wilmer Krusen, a political appointee who was the director of the Philadelphia Department of Public Health and Charities, deliberately ignored warnings against allowing a Liberty Loan parade to proceed, even though influenza had devastated the local Navy Yard and begun to spread into the civilian population. Within 72 hours of the parade, every bed in Philadelphia's 31 hospitals was filled...

If we had had the government we have now back then, they never would have dared to keep packing American soldiers onto crowded troop ships and military camps to be infected and die. They were able to do it because of government wartime powers and control of propaganda. The freedom of 1920 might have been all right but the freedom of 1918 was pretty shabby. I'm sure not eager to see the government have that kind of power again.  

By Blogger Dawnfire82, at Tue May 06, 02:16:00 PM:

"I do it because I think the government is more likely to use those tools to suppress political opposition than terrorism."

A fear which ought to have been disproven around, oh, November 2006.

There is no 'government.' What we call the government is a freakish monster composed of hundreds of thousands of people who cannot agree on anything. The politically motivated eavesdropping that you feared has to be conducted by some of these people. People who swear oaths of allegiance to the US Constitution, not to the President.

If you can't trust the politicians' ambition, at least trust the people's loyalty.  

By Blogger Noumenon, at Thu May 08, 10:37:00 AM:

A fear which ought to have been disproven around, oh, November 2006.

It sounds like you think the Democrats care about torture and would not use illegal wiretapping on their opponents. It would probably take a long time for us to see why we disagree about that. If you check out the blogs I read, Unqualified Offerings (libertarian) and Obsidian Wings (liberal), maybe that would be faster. (There is always the example of JFK.)

If you can't trust the politicians' ambition, at least trust the people's loyalty.

I'm not going to grant extra power to the rulers based on my affinity for the ruled. It's unrelated.

Did you ever see the "Don't taze me, bro" video? That's what happens when you appeal to the humanity of your fellow citizens, once they put on that government uniform.

All those hundreds of thousands don't have to agree on anything really, except "I want to keep my job." When was the last time a TSA screener resigned in protest saying, "I refuse to prevent Americans from traveling when they aren't allowed to see the laws that are restricting them?"  

By Blogger Noumenon, at Fri May 23, 10:22:00 AM:

A fear which ought to have been disproven around, oh, November 2006.

Having interacted with you a little more, I can see I misunderstood you. You were saying that the fact the Democrats won the election proves the Republicans weren't using the anti-terrorism tools to suppress political opposition. But that seems like the same logic as saying "Khrushchev can't have been using the KGB to suppress political opposition, because he was forced to step down by Brezhnev."  

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