Why you should care

Because who wants to pay for someone else’s idiotic decisions?

We sue doctors for slips of the knife, and drivers for inebriation, and companies for contaminating water supplies. And in the wake of measles’ ugly re-emergence in the United States, there has been plenty of talk about suing anti-vaxxers too, the parents who refuse to vaccinate their kids. The argument: Their refusal puts everyone else’s kids at risk.

But why not sue anyone who exposes others to infectious disease? Imagine being able to sue the boss who makes your flu-afflicted colleague come into the office, for instance. Or the jerk on the subway who coughs all over his seatmate, or, for that matter, the mom who blithely deposits a bronchitis-struck son at day care. Have Ebola and refuse to quarantine yourself? Liable. Cheat on your partner and bring home chlamydia? Double liable. Ride the subway with strep? See you in court.

This might sound jerky, but consider: We’re not “blaming the victim” for his ills. We’re blaming him for the ills he gave us.

To think you’re not responsible for the problems you cause is “just morally silly.”

The underlying idea, at least, is sound, rooted in centuries of liberal philosophy: We should be able to do what we wish with our own bodies, but we must bear the cost of decisions that affect others’ bodies — including the decision to expose others to disease. Assuming you’re not responsible for the problems you cause “is just morally silly,” says Arthur Caplan, an NYU bioethics professor who argues this point in his paper “Free to Choose but Liable for the Consequences.” His arguments that anti-vaxxers should be held accountable have gotten him pilloried, with comparisons to “fascist Germany” and the like.

Legal precedent is scant. The concept has mostly been applied to HIV, which may have more to do with societal stigmas than anything else. Some African countries punish willful HIV transmission with prison. And just last month, New York’s highest court ruled that an HIV-positive individual who tells a partner they can safely have unprotected sex could face a misdemeanor reckless endangerment charge, though not a felony.

One reason there is little history in this arena, says legal scholar Mary Holland, is that medicine only recently developed precise ways of tracking viruses. (She also points out that there are good reasons not to sue anti-vaxxers: In some cases, vaccines can have side effects, from seizures to anaphylaxis, that may justify the choice to opt out. The CDC says that long-term problems are so rare that it is hard to tell if the vaccine causes them.) Meanwhile, criminalizing disease transmission could backfire. It could deter people from getting diagnosed, because if you don’t know you have a disease, you can’t be accused of deliberately passing it on.

But human beings are no longer epidemiological naifs, subject to viral and bacterial whims. As public health professionals get better at tracing infections, even flus, lawsuits will likely become more common. And it won’t just be devastated parents suing, says Caplan. The government will go after restitution for the taxpayer money spent containing outbreaks. And when you sign that vaccine exemption, which all states allow, you’ll also be signing a disclaimer that says as much. Who knows, employers may even start requiring workers to get the flu shot — and if they don’t, it may not be long until the issue is settled in court.

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