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Thursday, June 26, 2003
Forced Vaccinations – Some Proposed Answers

In a previous post, I asked some questions about a specific case of forced vaccination. Among those questions was:
3) If a link between mercury in vaccines and autism was definitively established, would the hospital and the government have been justified in their actions?

Please see the original post (link above) for the story of a newborn being given a Hepatitis B vaccine against the wishes of the parents. I suggested that both the hospital and the government acted responsibly in forcing the baby to be vaccinated, and I also suggested that the establishment of a causal connection between mercury in vaccines and autism would not change that analysis.

A number of people think I am dead wrong (a result that would be surprising to no one, including me). Among those who think I am wrong are several people whose opinions I greatly respect. I therefore feel the need to explain my position. It may be that the opinions of others will change my mind.

My analysis begins with the proposition that the standard to be applied in making the decision as to whether or not to vaccinate the child is the best interests of the child, no more and no less. The child cannot make that decision. The parties to the controversy, the parents, the hospital, and the judge all have a responsibility to ensure that the best interests of the child are protected.

Based on that standard, I can find no fault with the actions of the hospital. The hospital was faced with the situation of grave medical risk to a minor. The parents refused to give the hospital permission to perform procedures widely accepted as necessary to preserve the health of the child. The hospital has a duty to protect the child and a duty not to perform unauthorized medical procedures. Faced with that dilemma, the hospital sought guidance from legal authorities. That was completely appropriate.

The hardest question is whether the government would have been justified in forcing the Hepatitis B vaccination if a causal connection between the administration of vaccines containing mercury and autism had been established.

Assuming, for the purpose of argument only, that mercury exposure from vaccines causes autism, then the judge faced a choice between the risk of the child contracting Hepatitis B and the risk of the child being autistic.

The best interests of the child required the judge to choose between those risks. To decide which of those risks to accept, the judge should look at the probablility of each possible outcome as well as the consequences of each.

During the 1980s, the best estimate of the incidence of autism was approximately five in 10,000 or about 0.05%. The 1990s saw a drastic increase in the number of vaccinations containing mercury given to infants. There has also been a large increase in the incidence of autism. The best available evidence to date suggests that autism now occurs in about one in two hundred children or about 0.5%. That ten-fold increase is from a very small base. Even if the entire increase is attributed to mercury in vaccines, the exposure to mercury in vaccines increased the chances of autism by 0.45%.

Thus, the decision to force a vaccination would result in harm in less than one half of one percent of the cases. The decision to force a vaccination would result in no harm at least 99.55% of the time.

Of course the consequences of that 0.45% are grave. Autism is no picnic. It is a lifelong potentially debilitating condition that causes much suffering for all concerned. Autism, however, does not kill.

Hepatitis B does kill. According to the article linked to in the previous post, 25% of infants who contract lifelong Hepatitis B die from liver disease or liver cancer. The judge would be justified in concluding that Hepatitis B has more serious consequences than autism.

If vaccinating the child reduces the chance of Hepatitis B by more than the increased risk of autism caused by mercury exposure, then the judge was justified in forcing the vaccination. The increased risk of autism can be no greater than 0.45%. Does the vaccination reduce the chance of Hepatitis B by more than that?

It appears that it does.

According to this site, a Hepatitis B carrying mother has a greater than 80% chance of transmitting the infection to a newborn. The vaccine is effective to protect the newborn 90-95% of the time.

Thus, the chances of the infant being infected with Hepatitis B are high if the mother has the infection. In the case we are discussing, the mother had had two Hepatitis B tests. Both were positive. The rate of false positives was, according to the story, 40%-60%.

As a matter of probabilities, the chance of two false positives was 16%-36%. Stated differently, the best information available to the judge was that the chances of the mother having Hepatitis B were between 64% and 84%.

Thus, in the absence of a vaccination, the newborn had a 51% to 67% chance of acquiring the virus. At 90% effectiveness, the vaccine would reduce that chance to 5-7%.

If the judge made the same decision 200 times, giving the vaccine would save 88 to124 children from acquiring Hepatitis B at a cost of about one additional case of autism.

Given that the consequences of Hepatitis B are as bad as or worse than autism and the risk of a bad result would be increased by a failure to vaccinate, I think the judge was justified in forcing the vaccination.

The above analysis assumes that the choice was to vaccinate immediately or not at all. It is possible that there was a middle position of waiting for a more definitive result of a Hepatitis B test on the mother and forcing the vaccination only if that test were also positive. I am not sure how to evaluate that option as I do not know how long it would take to obtain the test result nor do I know the decrease in efficacy of the vaccination due to delay. It is possible that my opinion would change if the risks run by waiting were substantially less than the 0.45% hypothetical risk of autism caused by the mercury exposure. Does anyone have any data on those issues?

As noted above, my analysis could well be wrong. Is it?


Just for Today, PLA becomes PLA--MS. No, I haven’t sold out to Microsoft yet (not for lack of trying. My failure to sell out is completely a demand side problem.) That is, instead of Politics Law and Autism, this space is now Please Laugh At -- Michael Savage.

Savage has mocked autistic kids and made stupid, hateful comments about gays, racial minorities and others. When a few souls called him on it, he sued three small web sites in an effort to silence their criticisms.

Michael Savage is a bully. One way to deal with him is simply to laugh at him. Laugh at him for changing his name from Michael Weiner. Laugh at him for his hypersensitivity to criticism while he has no sensitivity towards others. Laugh at him for his microscopic tevelvision ratings. Laugh at him for trying oh so hard to become a succesful right wing radio talk jock and instead becoming merely a parody. If you cannot manage a good belly laugh, mockery and ridicule are also acceptable.

Other folks laughing at Michael Savage today include Ted Barlow, Neal Pollack, South Knox Bubba, the Angry Bear, Jesse and, of course Atrios.

Tuesday, June 24, 2003
Forced Vaccinations – Some Questions

Some people believe that mercury in childhood vaccines causes autism.

The purpose of this post is not to argue whether or not that belief is justified (I intend to address that issue in another post) but rather to pose some questions. First, however, I have to tell you a story.

The story concerns a Colorado couple. I cannot vouch for the accuracy of the report but for the purpose of my questions, let us simply assume that it is true.

The Colorado couple went to the hospital for childbirth when the baby presented in a traverse position. The couple had no health insurance and attempted a home delivery before heading to the emergency room. At the hospital the baby was born after emergency C section.

The initial screening test on the mother came back positive for Hepatitis B. According to the story the false positive rate for that test 40-60 percent of the time (can anybody confirm or refute that claim?).

The parents protested that it was impossible for the mother to have Hepatitis B. After a second test came back positive the hospital personnel insisted that the parents sign a consent form to have their newborn vaccinated. The parents did not want the baby vaccinated in part because of religious beliefs and in part because they believed that the vaccination might be harmful to the baby.

The Hepatitis B vaccine at the time contained Thimerosal (49% mercury by weight) as a preservative. The vaccine contained 12.5 micrograms of mercury while the EPA standard for mercury is 0.1 micrograms of mercury per kilogram body weight per day. The Hepatitis B vaccine contained 39 times more mercury than permitted under EPA guidelines.

The couple stood their ground, continued to insist that it was impossible for the mother to have Hepatitis B and refused to sign the consent form.

The refusal to sign the consent form put the hospital and the doctors in a tough spot. The story notes:
According to the Centers for Disease Control and Prevention, 12,000 infants are infected with hepatitis B every year by their mother during birth. Infants and children who become infected with hepatitis B are at the highest risk of developing life-long infection, which often leads to death from liver disease and liver cancer. Approximately 25 percent of children who become infected with life-long hepatitis are expected to die of a related disease as adults.

In addition, when the mother tests positive for Hepatitis B, the infant should be immunized within 12 hours of birth. Apparently, the results of a definitive test as to whether or not the mother had Hepatitis B would not be available within the 12 hours.

The hospital called its lawyers, who called a judge, who held a hearing at the hospital. The couple had no time to have a lawyer represent them at the hearing as they were given only 15 minutes notice of the hearing. The 19 year old father represented himself and his family at the hearing.

The judge ruled that the baby would be vaccinated immediately and ordered the baby into the care of the local child services agency for the purpose of medical decision making (apparently physical custody of the baby remained with the mom).

After the vaccination, the Hepatitis B test came back negative for the mom.

The father has posted his version of the events here.

That story raises a number of questions, including the following:
1) Was the hospital justified in its actions?

2) Was the government (in the form of the courts) justified in forcibly vaccinating the child?

3) If a link between mercury in vaccines and autism was definitively established, would the hospital and the government have been justified in their actions?

4) Do the religious beliefs of the parents make any difference?

In my opinion, both the hospital and the government were fully justified in all of their actions and neither proof of a link between mercury and autism nor the parents’ religious beliefs would make any difference in my analysis.

Monday, June 23, 2003
Justice O’Connor’s Expectation

The Supreme Court issued its ruling today in Grutter v Bollinger, the University of Michigan Law School affirmative action case. In a 5-4 decision the Court reaffirmed the central ruling of Bakke that “student body diversity is a compelling state interest that can justify using race in university admissions.”

The majority opinion was written by Justice O’Connor.

Professor Balkin has an excellent post on the decision.

I was struck by one statement made by Justice O’Connor. She wrote as follows:
We take the Law School at its word that it would "like nothing better than to find a race-neutral admissions formula" and will terminate its race-conscious admissions program as soon as practicable. It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. (Citations omitted).

Professor Balkin remarks about that statement:
Finally, Justice O'Connor's opinion states near the end that she expects that 25 years from now race conscious affirmative action plans will be unnecessary and therefore unconstitutional. This is a familiar theme in her opinions-- she wants race conscious measures to be temporary, with sunset provisions, and she is deeply suspicious of plans that have no foreseeable endpoint.

Nevertheless, it is hard to know what to make of her statement in Grutter. Surely she is not saying that plans automatically become unconstitutional after 25 years. The best interpretation is probably that she wants a future Court to revisit the constitutionality of affirmative action plans if they go on too long. In other words, she is laying down a marker for a future Supreme Court someday to put an end of race conscious affirmative action in higher education, akin to the Court's retrenchment in school desegregation in 1990's cases like Pitts and Dowell. That leaves the door open for the Court to reverse Bakke someday, just not for many years. And it reflects Justice O'Connor's well-known tendency toward judicial compromise.

Professor Volokh agrees:
[T]his is hardly a legal command that the policies must cease in 2028. The 25-year time frame is an "expect[ation]" of when the "use of racial preferences will no longer be necessary" (under the majority's definition of necessity) to "further the interest" in educational diversity. But if 25 years from now universities want to continue their race preferences -- or defend new ones -- they can just say that, no, the use of racial preferences is still necessary, because things weren't quite as the Court has expected. The question will simply be what the Supreme Court in 2028 will think about that argument; and the Grutter "25 years" line won't really have much precedential weight in that situation.

While I agree with the Professors with regard to the effect of the statement, I am interested in a slightly different question.

On what basis did Justice O’Connor form her expectation that by 2028 “the use of racial preferences will no longer be necessary to further the interest approved today?”

Was evidence presented at the 15 day bench trial concerning the probable course of social evolution concerning race in the United States over the next 25 years?

If so, what sort of an expert presented such testimony? Under the Supreme Court’s opinion in Daubert, expert testimony is not admissible unless a Judge first makes a:
preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate.

Could any testimony about the course of race in American society over the next 25 years meet those criteria?

I do not mean to put too fine a point of Justice O’Connor’s statement. She was simply attempting to emphasis her view that the use of race based preferences should be limited in time. She selected 25 years as that was the approximate time between the decisions in Bakke and Grutter.

Justice Thomas, however, has already tried to spin Justice O’Connor’s “expectation” into a holding finding racial preferences illegal on a date certain:
Second, I agree with the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years. See ante, at 31 (stating that racial discrimination will no longer be narrowly tailored, or “necessary to further” a compelling state interest, in 25 years).

Judges should confine themselves to the factual record before them as applied to the law. As far as we can determine, Justice O’Connor’s expectation is no better and no worse than the expectation of the guy sitting at the other end of the bar. She has no special expertise in the evolution of American society. Would it not have been better to simply say that at some point the need for racial preferences to promote diversity in higher education will no longer be necessary? It would then be up to some other group of Justices, acting on appropriate evidence, to determine whether or not that day has come.

By stating a specific period, Justice O’Connor creates expectations that are not based on evidence. If the need for racial preferences has disappeared in, say, ten years, the proponents of preferences will argue that the 25 year window has not closed. If by 2028, the need for racial preferences remains, opponents of preferences will argue that the window has closed by the passage of time regardless of the evidence.

I think that both Justice O’Connor and the law would be better served if she had heeded Yogi Berra’s advice (paraphrased as it is quoted in various forms at various places) that “predictions are always risky, particularly about the future.”

Credit Where Credit Is Due

I do not often agree with Dr. Charles Krauthammer. I must, however, give credit where credit is due. Krauthammer’s latest column at
TownHall is quite good. The thesis of the column is as follows:
Everyone agrees that the United States is far too dependent on imported oil. Liberals say we need to conserve more. Conservatives say we need to produce more. It is the most ridiculous debate on the American political scene. We obviously need to do both. Every barrel added to domestic production and every barrel subtracted from consumption has the equivalent effect of reducing our dependence on unstable and unfriendly foreign producers.

Our dependence on oil for energy, particularly imported oil, causes three large problems. The first problem is that it greatly increases our trade deficit. We currently import more than 11 million barrels a day barrels of oil a day. The current price of oil is about $26.53 a barrel for Benchmark Crude. Thus, we send about $106 billion dollars a year out the country to oil producing countries. Our total trade deficit was about $136 billion in the first quarter of 2003. Imported oil accounts for about 1/5 of the total trade deficit. Billmon has chronicled the potential devastating effects of a large trade deficit. A reduction in imported oil would have large beneficial effects on our trade deficit.

The second problem caused by our addiction to oil as an energy source is pollution. The process of locating, extracting, and burning oil damages our environment. The burning of oil pollutes our air, causes acid rain and contributes to global warming. A policy that promotes the burning of oil as our primary energy source is destructive of our environment.

The third problem caused by our reliance on imported oil is in the area of foreign policy. Saudi Arabia, a country which spawned most of the 9-11 terrorists sells about 8.4 million barrels of oil a day. Because oil is a commodity sold in a world wide market place, our demand for oil benefits the Saudis regardless of whether we buy our oil from Venezuela, Canada or elsewhere. By continuing our addiction to oil, we fund the people who fund terrorism.

In effect, our reliance on oil to fuel our economy provides a weapon of mass economic destruction to the Saudis and other oil producing countries. What would happen to the dollar if the Saudis decided to accept only Euros as payment for oil? What would happen to our economy if OPEC decided to raise the price of oil to $65 per barrel and was willing to cut production and forego the income required to do so? Think about the US economy circa 1974-1979. It is not a pretty sight.

Thus our dependence on oil harms our balance of trade, puts our economy at risk of being held hostage by folks who do not have our interests at heart and pollutes our environment. That is truly a trifecta.

There is no single energy policy that will address all three problems in the short term. As Krauthammer points out, the problem needs to be addressed on all fronts. In particular, we need policies that 1) reduce consumption of oil; 2) substitute alternative sources of energy for oil consumption; and 3) develop our own petroleum resources. A package of proposals is needed.

Krauthammer proposes a compromise in which both liberals and conservatives must compromise. I think he is right.
Krauthammer proposes three policies. First, he proposes to levy a hefty tax on imported oil.
We must reduce oil consumption. The very easiest way to do it is simply to artificially raise the price of oil--i.e., tax it.
Oil is currently selling at about $30 a barrel. Slap, say, a $5 (or $10--the bazaar is open) tax on every imported barrel. And most important, keep the new price--let's say $35--as a floor. The world market price is likely to fall as Iraqi oil comes online, as Venezuela stabilizes, and as Russian and Caspian producers ramp up production.

This presents a wonderful opportunity to capture the fall in oil prices in the form of taxes. Say oil drops to $20 a barrel. Raise the import fee to $15 a barrel, so the consumer keeps paying $35 a barrel net. The windfall goes to the U.S. Treasury.

The benefits of such a scheme are enormous. Fixed and fairly expensive oil prices will induce consumers to cut oil consumption. It won't happen overnight. People are not going to junk their SUVs, but they will begin to make choices favoring greater fuel efficiency over time, exactly as they did when oil prices rose in the 1970s.

I agree that we should increase the tax on oil or oil products. I do not think that the tax should be limited to imported oil but rather to every barrel of oil produced or imported. To tax only imported oil provides a windfall to domestic producers. I think that we should capture that windfall in the form of taxes as well. I am not sure whether the tax should be on oil or on the finished product whether it be gasoline, diesel, fuel oil or whatever. As an oil consumption tax is regressive, some means of rebating the tax to low income Americans should be included.

The tax on oil will discourage consumption. The reduction in consumption will lessen our reliance on foreign oil, thereby reducing the trade deficit. It will also help protect the environment by reducing the amount of air pollution and greenhouse gases emitted.

Third, as demand for oil decreases, the leverage oil producing countries have over our foreign policy diminishes. Finally, the additional source of revenue to the federal government can help offset the looming fiscal crisis.

While taxing the consumption of oil is good policy, it is not in itself sufficient. We need an expanding supply of energy to fuel our economy. We may reduce consumption (or at least the rate of increase in consumption) by taxing oil but eventually we need to develop alternative energy sources to keep the economy growing and our standard of living rising.

Many liberals support efforts to develop some alternative energy sources. Solar power, hydrogen fuel cells, wind power and others are all on the liberal approved list. I heartedly approve of the development of all of those sources. The tax increase on oil will make solar and wind power more economically competitive. The administration has committed (at least rhetorically) to the development of fuel cell technology. Again, I approve of that position.

Krauthammer argues that nuclear power is a clean, safe alternative source of energy:
Liberals also need to get over their allergy to the cleanest form of energy, nuclear power. The administration has proposed support for a new generation of safer nuclear reactors. You'd think environmentalists would be enthusiastic. Nuclear energy is remarkably benign: no greenhouse gases or other pollutants strewn in the air, water and your lungs. Of course, like all energy, nuclear has its pollutant--there is no free lunch--but in this case you can find it, concentrate it, put it in box cars and ship it off to some God-forsaken mountain in the desert.

There is little doubt that nuclear power is a clean and safe form of energy. New technologies have moved well beyond the Chernobyl or Three Mile Island style power plants. The only environmental problem associated with nuclear power is the disposal of the radioactive waste and the transport of that waste.

I think that the best environmental solution to the nuclear waste problem is to space it. Package it safely, achieve exit velocity and point it at the sun. Eventually it will arrive at the sun where it will cause no problems. I have not looked at the economics of spacing nuclear waste and I suspect that the costs will be prohibitive. As Krauthammer points out, a Nevada mountain is a good storage site for the next 10,000 years or so. There is an excellent New Republic article that convinced me that the Nevada site is quite safe. I cannot locate that article online.

Environmentalists, like myself, need to look at the practical alternatives before opposing nuclear power. We are not going to convert to a solar power, wind power or hydrogen based economy anytime soon. The real, near term choice is between nuclear power and burning more hydrocarbons. I think that nuclear power has a clear environmental advantage over hydrocarbons. Environmentalists need to learn that perfect is the enemy of good. Nuclear power is better than the alternatives and environmentalists should embrace it.

Krauthammer’s third proposal is to open ANWAR for development of oil and gas production. I have generally opposed the opening of ANWAR as I am convinced that the quantity of recoverable oil and gas in ANWAR (at least at current prices) is insufficient to justify the environmental damage to a pristine wilderness.

If the opening of ANWAR is part of a package that includes significant steps to reduce oil consumption, then the environmental issue is more complex. It seems likely to me that the environmental benefits of reduced greenhouse gasses and reduced air pollution resulting from a decrease in gasoline and other oil consumption far outweigh the environmental harm caused by opening ANWAR to oil production.

While I remain opposed to opening ANWAR as a stand alone policy, the environmental cost of such a policy is one I am willing to pay in return for greatly reduced air pollution and greenhouse gas emissions.

I dislike increased consumption taxes on gasoline because they are regressive. I dislike the environmental damage caused by opening ANWAR to the oil companies. I dislike the creation of additional radioactive waste caused by an increase in the use of nuclear power.

Nonetheless, I would support a compromise involving all three of those policies because I like the air pollution, the emission of greenhouse gasses, the damage to our economy of huge trade deficits and the funding of those who spawn and fund terrorists even less.

A rational energy policy is possible but everyone, liberals and conservatives alike, needs to realize that perfect is the enemy of good. If Dr. Krauthammer and I can agree, there is hope yet.

Savant For A Day

If you are reading this, there is a decent chance that you have at least a passing interest in autism, brain functioning or related topics. If so and if you plan on reading one thing today please read this article entitled Savant For A Day.

A researcher in Australia is using to device known as a Transcranial Magnetic Stimulator to slow down and/or speed up certain regions of the brain. He is doing so to try to study how the brain works in general and also how autistic brains, particularly autistic savant brains, work. Some people’s performance in certain areas increases substantially while “on the machine.” The effect lasts only while the machine is operating. For instance, the author of the article became far more skilled at drawing while using the Transcranial Magnetic Stimulator. The TMS increases brain function in one area, thereby making the subject a “savant for a day.”

It is a fascinating article. Please take the time to read it.

Sunday, June 22, 2003
What A Guy

Amitai Etzioni is a sociologist and the father of the "communitarian” movement. The communitarian movement seeks a new path different from both libertarianism and big government liberalism. As such, communitarian thinking was crucial to the development of the policy approach of “third way” politicians such as Bill Clinton and Tony Blair. Even George W. Bush’s “compassionate conservative” rhetoric (but not his actual policies) seems rooted in the work of folks like Etzioni.

Amitai Etzioni also has a very fine blog, located here.

From one of his posts, we learn that at one point, The New Republic was interesting in running an article about Etzioni. That is not at all surprising in that TNR was an early voice supporting the idea of a third way.

An editor of TNR approached writer Ben Wittes (now a member of the Washington Post Editorial Board) about writing the piece. Wittes was a good choice as he had previously worked for Etzioni and knew him well. There was only one problem. The only story the TNR editor wanted Wittes to write was a “hit piece” on Etzioni. Wittes refused and the piece was not written.

Who was the editor who wanted the “hit piece?” None other than blogtopia’s own Andrew Sullivan. What a guy.

As Etzioni concludes, “Ben is still a decent fellow and Sullivan a skunk.”