The ethics of coercion in mass casualty medicine

The Ethics of Coercion in Mass Casualty Medicine

Volumn , Issue , 2007, Pages 1-154

  Trotter, Griffin ^a  

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References (244)

1. At a secret 1995 international meeting on dangers from chemical, biological, radiological, and nuclear weapons, Bill Patrick described the ease with which terrorists could obtain colonies of deadly bacteria such as those associated with anthrax, plague, and tularemia. With a starter colony of Francisella tularensis (the bacterium causing tularemia) and 1, 000 augur plates, terrorists could produce 5 liters of infectious material in 36 hours. This goop, Patrick continued, could be mixed in a food blender and strained through cheesecloth to produce a 5 million bacteria per ml solution, then dispersed into the air intake system of a large building with a garden sprayer. According to Patrick, such a strategy could quickly infect half of the people in the World Trade Center. See Judith Miller, Stephen Engelberg, and William Broad, Germs: Biological Weapons and America's Secret War (New York: Simon & Schuster, 2001), 163.
2. Lawrence O. Gostin et al., "The Model State Emergency Health Powers Act: Planning for and Response to Bioterrorism and Naturally Occurring Infectious Diseases", JAMA 288, no. 5(2002):622-28.
3. The most substantial amendment to the Delaware bill was the second one, in which several of the provisions from MSEHPA were removed. The legislative history of this bill can be reviewed at www.legis.state.de.us/.
4. David T. Dennis et al., "Tularemia as a Biological Weapon", in Bioterrorism: Guidelines for Medical and Public Health Management, ed. Donald A. Henderson, Thomas V. Ingelsby, and Tara O'Toole (Chicago: AMA Press, 2002), 180. The Soviets are known to have produced a vaccine-resistant strain of tularemia.
5. See Ken Alibek and Stephen Handelman, Biohazard (New York: Delta, 1999), 25-28.
6. Doxycycline is contraindicated in children less than 9 years old due to tooth enamel hypoplasia (poor growth) and dental staining. It can also cause severe exacerbation of hepatic disease. Ciprofloxacin causes joint disease in immature animals, but this effect is rarely seen in human children. The American Academy of Pediatrics considers ciprofloxacin to be "usually compatible with breastfeeding." See American Academy of Pediatrics Committee on Drugs, "The Transfer of Drugs and Other Chemicals into Human Milk", Pediatrics 108, no. 3(2001):776-89.
7. Dennis et al., "Tularemia as a Biological Weapon", 169.
8. Many of the American founders subscribed to variations of the Lockean view that persons form political society on the basis of a compact that attenuates certain natural liberties primarily to protect highly vulnerable liberties (freedom from aggression, freedom of conscience, freedom of exchange). See John Locke, Two Treatises of Government, ed. Peter Laslett, Cambridge Texts in the History of Political Thought (New York: Cambridge University Press, 1988), 350-51.
9. See also Gary Rosen, American Compact: James Madison and the Problem of the Founding (Lawrence: University Press of Kansas, 1999), 10-38.
10. Brian D. Mahoney, "Disaster Medical Services", in Emergency Medicine: A Comprehensive Study Guide, ed. Judith E Tintinalli, Ernest Ruiz, and Ronald L. Krome (New York: McGraw-Hill, 1996), 20-25.
11. C. E. Fritz, "Disasters", in Contemporary Social Problems, ed. R. K. Merton and R. A. Nisbet (New York: Harcourt, 1961), 655.
12. E. L. Quarantelli, Catastrophes Are Different from Disasters: Some Implications for Crisis Planning and Managing Drawn from Katrina (Disaster Research Center, 2005). Available online at http://understandingkatrina.ssrc. org/Quarantelli/[accessed October 28, 2005]. Another aspect of catastrophes, according to Quarantelli, is that the "mass media system especially in recent times socially constructs catastrophes even more than they do disasters." One of the ways in which news media distort reality in catastrophes is by diffusing even more rumors than in disasters. With regard to Hurricane Katrina, Quarantelli writes: "While looting did occur, which is atypical for disasters, the anti-social behavior was widely depicted as typical when the prosocial behavior was by far the norm (it should be noted that a catastrophic situation is only one condition necessary to have mass looting)." Most of the typical false dogmas were also amplified in media coverage of Katrina. For instance, Quarantelli notes, "The question of 'who is in charge' was reiterated over and over again, as if it was a meaningful question, reflecting the command and control model that disaster research has indicated does not work well in disasters, much less in catastrophes."
13. My account here conflicts with accounts of disease based on species normal function. See, for instance, Norman Daniels, Just Health Care, ed. Daniel I. Wikler, Studies in Philosophy and Health Policy (New York: Cambridge University Press, 1985), 28-32. I have argued elsewhere that these latter are untenable, but this issue is somewhat beside the point in the current study.
14. See Griffin Trotter, The Loyal Physician: Roycean Ethics and the Practice of Medicine, Vanderbilt Library of American Philosophy (Nashville, Tenn.: Vanderbilt University Press, 1997), 139-41.
15. Griffin Trotter, "Loyalty in the Trenches: Practical Teleology for Office Clinicians Responding to Terrorism", Journal of Medicine and Philosophy 29, no. 4(2004):390.
16. Eric Auf der Heide, "Common Misconceptions about Disasters: Panic, the 'Disaster Syndrome', and Looting", in The First 72 Hours: A Community Approach to Disaster Preparedness, ed. Margaret O'Leary (New York: iUniverse, 2004).
17. Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, 5th ed. (New York: Oxford University Press, 2001), 94-95.
18. Robert Nozick, "Coercion", in Philosophy, Science, and Method: Essays in Honor of Ernst Nagel, ed. Sidney Morgenbesser, Patrick Suppes, and Morton White (New York: St. Martin's Press, 1969), 440-72.
19. Bernard Gert, "Coercion and Freedom", in Coercion: Nomos Xiv, ed. J. Roland Pennock and John W. Chapman (Chicago: Aldine, Atherton Inc., 1972), 36-37.
20. Beauchamp and Childress, Principles of Biomedical Ethics, 94.
21. Thomas Hobbes, Leviathan, ed. Richard Tuck, Cambridge Texts in the History of Political Thought (New York: Cambridge University Press, 1996), 145. Following this lead, John Locke characterized "natural liberty" as the absence of restraints other than the Law of Nature, and "liberty in society" as the absence of restraints other than the Law of Nature and the laws established by a legislative authority to which the subject consents.
22. See Locke, Two Treatises of Government, 283-84. We will regard liberty as natural liberty. Thus, in the terminology of this text, infringements of liberty established by a legitimate legislative authority (i.e., an authority established through consent) will still be regarded as infringements, even if they are legitimate ones. This usage will help us remain consonant with the current habit of speaking about legitimate tradeoffs between liberty and other rights or goods.
23. Gert, "Coercion and Freedom."
24. Willard Gaylin and Bruce Jennings, The Perversion of Autonomy: Coercion and Constraint in Liberal Society, rev. and exp. ed. (Washington, D. C.: Georgetown University Press, 2003), 144.
25. As of this writing, there have been three TopOff exercises (two of these will be discussed later). Another major exercise was Dark Winter, which involved a hypothetical smallpox attack on Oklahoma City. See Tara O'Toole, Michael Mair, and Thomas V. Ingelsby, "Shining Light on 'Dark Winter, '" Clinical Infectious Diseases 34(2002):972-83.
26. Democrat Tom Huntley, a representative in Minnesota's statehouse, complained, for instance, that "someone with smallpox could walk out of the hospital and nobody could do anything about it." See Sarah Lueck, "States Seek to Strengthen Emergency Powers", Wall Street Journal, 7 January 2002.
27. Gostin et al., "Model State Emergency Health Powers Act."
28. The phrase "in collaboration with" appears on the title page of the first draft of MSEHPA but is changed to "to assist" in the second draft, which also contains a disclaimer stating that the "language and content of this draft... do not represent the official policy, endorsement, or views of the Center for Law and the Public's Health, the CDC, NGA, NCSL, ASTHO, NACCHO, or NAAG, or other governmental or private agencies, departments, institutions, or organizations which have provided funding or guidance." In a letter to George Annas, dated December 28, 2001, CDC director Jeffrey Koplan wrote: "The draft model act does not represent any official or unofficial CDC position. " See George Annas, "Terrorism and Human Rights", in In the Wake of Terror: Medicine and Morality in a Time of Crisis, ed. Jonathan D. Moreno (Cambridge: MIT Press, 2003), 41-42. Nevertheless, in an article explicating the second draft, published in JAMA in August of 2002, Lawrence Gostin and other architects of the model act claim that the act was drafted "in collaboration with members of national organizations representing governors, legislators, attorneys general, and health commissioners."
29. See Gostin et al., "Model State Emergency Health Powers Act", 622.
30. AIDS activists were concerned that the definition of a public health emergency might encompass patients with HIV infection, thus leading to isolation and quarantine. This problem was fixed in the second draft. Privacy advocates also took alarm, but they received fewer concessions. See Lueck, "States Seek to Strengthen Emergency Powers." In response to brisk criticism, in the second draft the authors eliminated criminal penalties for citizens and physicians who refused to cooperate (though other forms of inducement were substituted).
31. Center for Law and the Public's Health at Georgetown and Johns Hopkins Universities, The Model State Emergency Health Powers Act (2001 [accessed April 10, 2002]); available from www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf
32. By August 11, 2003, 33 states and the District of Columbia had passed bills containing provisions that reflected the content of MSEHPA. This tally includes only legislation passed subsequent to MSEHPA, not existing state powers laws. See Center for Law and the Public's Health at Georgetown and Johns Hopkins Universities, The Model State Emergency Health Powers Act State Legislative Activity (2003 [accessed February 15, 2004]); available from www.publichealthlaw.net/Resources/Modellaws.htm.
33. George Annas, "Bioterrorism, Public Health, and Civil Liberties", New England Journal of Medicine 346, no. 17(2002):1338-39.
34. John M. Colmers and Daniel M. Fox, "The Politics of Emergency Health Powers and the Isolation of Public Health", American Journal of Public Health 93, no. 3(2003):397-99.
35. Mark A. Hall, "The Importance of Trust for Ethics, Law, and Public Policy", Cambridge Quarterly of Healthcare Ethics 14, no. 2(2005):156-67.
36. Institute of Medicine, The Future of Public Health (Washington, D. C.: National Academy Press, 1988). The IOM definition is widely endorsed and frequently cited.
37. See Lawrence O. Gostin, "Tradition, Profession, and Values in Public Health", in Ethics and Public Health: Model Curriculum, ed. Bruce Jennings, et al. (Association of Schools of Public Health [Online Publication available at www.asph.org/UserFiles/Module.pdf], 2003), 13.
38. See also James C. Thomas et al., "A Code of Ethics for Public Health", American Journal of Public Health 92, no. 7(2002):1058.
39. Amitai Etzioni et al., "Communitarian Dialogue: Public Health in the Age of Bioterrorism", The Responsive Community 12, no. 2(2002):59.
40. Lawrence O. Gostin, "Public Health Law in an Age of Terrorism: Rethinking Individual Rights and Common Goods", Health Affairs 21, no. 6(2002):80. The call for a new equilibrium between individual and group interests is also prominent in the news media.
41. See, for instance, Nicholas D. Kristof, "Lock 'Em Up", New York Times, 2 May 2003. Kristof argues that civil liberties need to be attenuated in deference to law enforcement measures that enhance security against terrorism.
42. Griffin Trotter, "Bioethics and Healthcare Reform: A Whig Response to Weak Consensus", Cambridge Quarterly of Healthcare Ethics 11, no. 1(2002):45.
43. John Stuart Mill is the classic example. Like most other classical utilitarians, he was a hedonist, defining happiness as pleasure and the absence of pain. See John Stuart Mill, Utilitarianism, ed. George Sher (Indianapolis: Hackett, 1979), 7.
44. As egalitarian Amartya Sen notes, "egalitarian" can be applied in a variety of ways, depending on what form of equality one endorses. In general, I will take the term to denote the view that the polis ought to cultivate a robust equality of resources, capacities, or other similar building blocks of the good life, through taxation or other coercive redistributive measures. See Amartya Sen, Inequality Reexamined (Cambridge: Harvard University Press, 1992), 12-30.
45. For an analysis of egalitarian trends in pragmatic bioethics, see Griffin Trotter, "Pragmatic Bioethics and the Big Fat Moral Community", Journal of Medicine and Philosophy 28, nos. 5-6(2003):655-71.
46. Robert N. Bellah, "Community Properly Understood: A Defense of 'Democratic Communitarianism, '" in The Essential Communitarian Reader, ed. Amitai Etzioni (Lanham, Md.: Rowman and Littlefield, 1998);
47. Josiah Royce, The Problem of Christianity, ed. John J. McDermott (Chicago: University of Chicago Press, 1968).
48. Ezekiel J. Emanuel, The Ends of Human Life: Medical Ethics in a Liberal Polity (Cambridge: Harvard University Press, 1991)
49. Griffin Trotter, "Balancing Pluralism and the Common Good: A Look at Open-Air Experiments of Biowarfare Agents", Accountability in Research 10(2003):109-21.
50. John Rawls, A Theory of Justice (Cambridge: Belknap Press of Harvard University Press, 1971), 246.
51. This inventory is inconsistent with a conditions model of the common good because it contains elements (such as certain positive rights, certain powers, and income and wealth) that are: (1) desired in widely varying degrees and sometimes not at all (there are ascetics, for instance, who desire neither income nor wealth); (2) interpreted and ranked in radically differing ways, depending on divergent conceptions of the good life; and (3) regarded by some thinkers as things that should not be at the disposition of society. For these reasons, a true conditions model of the common good would focus on conditions that allow for the pursuit of various levels of wealth, income, or capacity-not a state that guarantees the fulfillment of particular wealth, income, or capacity ideals. In defense of his theory, Rawls offers moral assessments that are radically at odds with the commonsense morality of many rational persons. He opines, for instance, that "the idea of rewarding deserts is impracticable", since "the better endowed are more likely, other things being equal, to strive conscientiously" (A Theory of Justice, 312). Setting aside the question-begging qualification (for those who disagree with Rawls, "other things" are morally relevant and they are not equal), Rawls, in importing his intuition that rewards for effort are prima facie unjust, outruns the boundaries of attainable overlapping consensus by several miles.
52. Rawls regards his conception of justice as fairness not as currently enjoying the support of an overlapping consensus, but rather as being a potential object of such consensus over time "in a more or less just constitutional regime, a regime in which the criterion of justice is that political conception itself." In other words, Rawls believes that if we implement his conception of justice by force, then eventually, over the generations, it is possible that the conception can gain the support of an overlapping consensus. See John Rawls, Political Liberalism (New York: Columbia University Press, 1996), 15.
53. Alex John London, "Threats to the Common Good: Biochemical Weapons and Human Subjects Research", Hastings Center Report 33, no. 5(2003):19.
54. Griffin Trotter, On Royce (Belmont, Calif: Wadsworth, 2001), 68-69.
55. London, "Threats to the Common Good", 19.
56. Gostin, "Public Health Law in an Age of Terrorism."
57. London, "Threats to the Common Good", 21.
58. Griffin Trotter, "Emergency Medicine, Terrorism, and Universal Access to Healthcare: A Potent Mixture for Erstwhile Knights-Errant", in In the Wake of Terror: Medicine and Morality in a Time of Crisis, ed. Jonathan D. Moreno (Cambridge: MIT Press, 2003), 133-46.
59. Quoted in Daniel Callahan, What Kind of Life: The Limits of Medical Progress (New York: Simon and Schuster, 1990), 35.
60. Dan E. Beauchamp, The Health of the Republic: Epidemics, Medicine, and Moralism as Challenges to Democracy (Philadelphia: Temple University Press, 1988), 98. Another interesting contrast to Beauchamp's view is that expressed by James Madison in his classic treatise on freedom of religion, that the highest duty of citizens is "to take alarm at the first experiment on their liberties"
61. ("Memorial and Remonstrance", in The Papers of James Madison, ed. W. T. Hutchinson, W. M. E. Rachal, and Robert A. Rutland [Chicago and Charlottesville: University of Chicago Press and University Press of Virginia, 1962], 299-300).
62. I have seen no evidence supporting the claim that motorcycle helmet laws save money by reducing medical costs. A study of injury costs associated with motorcycle use in California, comparing costs before and after the enactment of helmet laws, purports to substantiate this claim, but the study is too flawed to be relevant. It does not, for instance, account for the cost of enacting such laws or for the likely shift in motorcycle use away from that state to less regulated states. See W. Max, B. Stark, and S. Root, "Putting a Lid on Injury Costs: The Economic Impact of the California Motorcycle Helmet Law", Journal of Trauma-Injury, Infection and Critical Care 45, no. 3(1998):550-56. The same flaws have occurred in subsequent studies of the same subject in other states. Of course, not being able to show that helmet non-use is costly does not prove that it isn't costly. In the end, the public cost of not using motorcycle helmets is not highly relevant to the discussion of helmet laws, since there are many means short of coercive helmet laws to ensure that taxpayers and other third parties do not have to pick up the bills. To use cost as a precedent in this case would invite the punishment of far more costly behaviors-casual sex without birth control, for instance-that inevitably tax social and political resources to a much higher degree than riding motorcycles without a helmet does.
63. For a discussion of positivism, its prominence in public health circles, and reasons for being wary of it, see David R. Buchanan, An Ethic for Health Promotion: Rethinking the Sources of Human Well-Being (New York: Oxford University Press, 2000), 1-22.
64. For a critique of positivism in the international response to HIV/AIDS, see Griffin Trotter, "Buffalo Eyes: A Take on the Global HIV Epidemic", Cambridge Quarterly of Healthcare Ethics 12, no. 4(2003):434-43.
65. Griffin Trotter, The Loyal Physician: Roycean Ethics and the Practice of Medicine, Vanderbilt Library of American Philosophy (Nashville, Tenn.: Vanderbilt University Press, 1997), 150-51.
66. H. Tristram Engelhardt Jr., The Foundations of Bioethics, 2nd ed. (New York: Oxford University Press, 1996), 199-203.
67. The Germans first used gas on October 27, 1914, in Neuve-Chapelle sector. This attack, using water soluble irritant gases, was ineffective. When they used chlorine gas against the French at Ypres on April 22, 1915, the results were quite different. The green vapor left a fourmile gap with no survivors. Regarding the stigma attached to the introduction of chemical weapons, Captain B. Liddell Hart's words bear consideration: "The chlorine gas originally used was undeniably cruel, but no worse than the frequent effect of shell or bayonet, and when it was succeeded by improved forms of gas both experience and statistics proved it the least inhumane of modern weapons. But it was novel and therefore labeled an atrocity by a world which condones abuses but detests innovations. Thus Germany incurred the moral odium which inevitably accompanies the use of a novel weapon without any compensating advantage" (The Real War 1914-1918 [Boston: Little, Brown and Company, 1930], 129-30). Phosgene gas succeeded chlorine and was used by both the Germans and the allies in World War I. It accounted for about 80 percent of the chemical weapons deaths in that war.
68. See Eric Croddy, Chemical and Biological Warfare (New York: Copernicus, 2002), 95-96.
69. The by-sea hypothesis was championed by Lieutenant Colonel Philip S. Doane, head of the Health Sanitation Section of the Emergency Fleet Corporation. His thoughts were published by most newspapers and appeared on the front page of the Philadelphia Inquirer. See Alfred W. Crosby, America's Forgotten Pandemic: The Influenza of 1918, 2nd ed. (New York: Cambridge University Press, 2003), 47.
70. Gina Kolata notes: "If such a plague came today, killing a similar fraction of the U. S. population, 1.5 million Americans would die" (Flu: The Story of the Great Influenza Pandemic of 1918 and the Search for the Virus That Caused It [New York: Simon & Schuster, 1999], 7).
71. Crosby, America's Forgotten Pandemic, 215.
72. Kolata, Flu, 7-8.
73. Crosby, America's Forgotten Pandemic, 74-78.
74. Mask use may have been somewhat effective in the 1918 epidemic (despite conflicting data). More germane to the activist tendencies of public health authorities (which mirror the same tendencies among physicians in ordinary clinical medicine) is what Crosby has described as the rapid mobilization of virtually every health science institution in the country "to produce with blinding speed absolutely useless vaccines." Immunologically useless vaccines were pushed avidly by public health authorities such as San Francisco's Hassler, who claimed that, even if they were not effective, the vaccines "cannot do any harm" (Crosby, America's Forgotten Pandemic, 313, 100-101).
75. Jürgen Habermas, Legitimation Crisis, trans. Thomas McCarthy (Boston: Beacon Press, 1975), 36.
76. James F. Childress et al., "Public Health Ethics: Mapping the Terrain", Journal of Law, Medicine and Ethics 30, no. 2(2002):173.
77. Michael P. Zuckert, The Natural Rights Republic (Notre Dame, Ind.: University of Notre Dame Press, 1996), 49.
78. Joshua Cohen, "Deliberation and Democratic Legitimacy", in The Good Polity, ed. Alan Hamlin and Philip Pettit (Oxford: Blackwell Publishers, 1989), 21.
79. A recent book on deliberative democracy contains the following passage: "First-order theories seek to resolve moral disagreement by demonstrating that alternative theories and principles should be rejected. The aim of each is to be the lone theory capable of resolving moral disagreement. The most familiar theories of justice-utilitarianism, libertarianism, liberal egalitarianism, communitarianism-are first-order theories in this sense.... In contrast, deliberative democracy is best understood as a second-order theory. Second-order theories are about other theories in the sense that they provide ways of dealing with the claims of conflicting first-order theories. They make room for continuing moral conflict that first-order theories purport to eliminate." (Amy Gutmann and Dennis Thompson, Why Deliberative Democracy? [Princeton, N. J.: Princeton University Press, 2004], 13). Though this passage implies that there is only one theory of deliberative democracy, such is not the case. It also seems to imply (wrongly) that second-order theorists do not try to demonstrate that alternative second-order theories should be rejected.
80. Some proponents of RCT would accuse me of overstating their thesis here. Gutmann and Thompson, for instance, have claimed that it is enough if other deliberators can "understand" one's premises-surely a less rigorous requirement than prima facie plausibility as I have described the case. But on closer examination, their use of "understand" seems to imply a hefty dollop of finding something plausible. For instance, they argue that the requirement for submitting only understandable premises precludes deliberators from offering premises drawn or justified from divine revelation. But why would such premises not be understandable? Is "God" really such an obscure concept? If so, why do so many people have an opinion on it? Gutmann and Thompson seem to be arguing that appeals to divine revelation are not acceptable in public deliberation because they invoke beliefs that many will not regard as prima facie plausible (Why Deliberative Democracy? 4). In addition, premises drawn from divine revelation are suspect for RCT because they cannot be analyzed by the usual appeals to science, reason, or collective belief.
81. See Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge: Belknap Press of Harvard University Press, 1996), 55-57.
82. John Rawls, Political Liberalism (New York: Columbia University Press, 1996), 144.
83. Incentives to public deliberation have been suggested. Ackerman and Fishkin, for instance, propose a national "Deliberation Day", where all but the most essential work is prohibited by law and all citizens are called to deliberate for a paycheck of $150 "for the day's work of citizenship. " Though no one is coerced to deliberate (they are enticed), citizens are certainly coerced into paying for deliberation on this scheme. See Bruce Ackerman and James S. Fishkin, "Deliberation Day", in Debating Deliberative Democracy, ed. James S. Fishkin and Peter Laslett (Malden, Mass.: Blackwell Publishing, 2003), 7.
84. Young describes her activist as "committed to social justice and normative value" but leaves it to the reader to sort out what she means by social justice. Her examples of activist opinions make it fairly evident that she intends the concept to be understood in accordance with standard left-wing ideology. Of course, one need not be a leftist to be an activist. To a large extent, right-wing activists (e.g., antiabortion protestors) employ the same cocksure composure and the same aversion to public deliberation and compromise that Young's activist does. See Iris Marion Young, "Activist Challenges to Deliberative Democracy", in Debating Deliberative Democracy, ed. James S. Fishkin and Peter Laslett (Malden, Mass.: Blackwell Publishing, 2003), 104.
85. James Madison, "Federalist #10", in The Federalist Papers, ed. Clinton Rossiter (New York: Mentor, 1961), 79.
86. Rawls, Political Liberalism, 49-50, 164-68. Kurt Baier is cited for his articulation of constitutional consensus.
87. It might be objected to my characterization of Hobbes as a proponent of modus vivendi that he was in reality a contractarian-"contractarian" denoting a kind of ethical theory that is closer to being full-fledged than what we find in basic MVT. This objection is correct but also misleading. Hobbes describes "Naturall Lawes" in chapters 14 and 15 of Leviathan. His account in these chapters is similar to present-day ideal contract accounts in that it lays out strictures that all men are bound to accept as rational agents on a contractual basis. (Hobbes preferred "nature" to "rationality" but understood nature like most contemporary contractarians understand rationality-in egoistic terms.) The connection with contemporary contractarianism is misleading, on the other hand, because Hobbes refrains from employing an ideal space for negotiation, such as Rawls's original condition or Gauthier's Archimedean point. Hobbes's contract, though ideal, is more a rough, naturally ingrained common prudence than an intricate system of norms that all rational persons are bound to accept. With respect to contemporary contractarians, the ones who import less ethical content into their ideal negotiations are closest to the modus vivendi theorists. Hence, mutual benefit contractarians like Gauthier share much in common with most proponents of MVT. See David Gauthier, Morals by Agreement (Oxford: Oxford University Press, 1986).
88. Of course, for Hobbes, the political morality is mostly defined by the will of the sovereign. Our interest in this volume is with democracies. With respect to these latter, John C. Calhoun nicely argues (in a passage we will discuss later) that a unified political view is more likely to be obtained in a concurrent democracy (where distinctive, incompatible moral communities retain their identity and political power) than in a majoritarian democracy (where they can be easily swallowed). See "A Disquisition on Government", in Union and Liberty: The Political Philosophy of John C. Calhoun, ed. Ross M. Lence (Indianapolis: Liberty Fund, 1992), 23-24.
89. George Khushf focuses on another of Locke's reasons for supporting toleration: the limitations of knowledge. The idea here is basically that because reason alone cannot establish a particular conception of the good and the right, we need to tolerate the existence of conceptions that we find wrong or even loathsome. Khushf contrasts this version of toleration with the view maintained by most proponents of rational consensus (who tend to think they have established many of the tenets of the good and the right) that tolerance extends only to practices and beliefs that are compatible with a robust political morality sanctioned by the state. These diverging stances beget two diverging conceptions of pluralism: external pluralism (in which diverging moral communities live according to their particular moral visions) and internal pluralism (in which contrasting lifestyles are allowed but only within the purview of a comprehensive political morality). See George Khushf, "Intolerant Tolerance", Journal of Medicine and Philosophy 19 (1994). Modus vivendi theory endorses external pluralism and rejects internal pluralism. Moreover, Khushfs account of Locke's conception of toleration and its rationale is consistent with Hobbes and the thought of several modus vivendi theorists (discussed later in this chapter). Even more than Locke, Hobbes was a moral fallibilist, holding that knowledge is always tentative and hence writing that "no one mans [sic] Reason, nor the Reason of any number of men, makes the certaintie"
90. (Leviathan, 32).
91. See also Trotter, "Balancing Pluralism and the Common Good", 109-21;
92. and "Bioethics and Healthcare Reform", 44, 50n21, 51n33.
93. Hobbes's sovereign is capable, in theory, of dictating a full-fledged moral doctrine. But this doctrine is not accepted by subjects primarily because it is true or right; it is accepted for prudential reasons that lie at the heart of Hobbes's social contract. In practice, Hobbes's Christian state turns out to be relatively tolerant (as absolute sovereignties go). See Richard E. Flathman, Thomas Hobbes: Skepticism, Individuality, and Chastened Politics, ed. Morton Schoolman, New Edition ed., Modernity and Political Thought (Lanham, Md.: Rowman & Littlefield, 2002), 150-55.
94. Hobbes recognizes three fundamental motives for quarrel: (1) competition for material gain, (2) diffidence concerning threats of violence, and (3) desire for glory (Leviathan, 88).
95. See also Hobbes's opinions on the "restless desire for power", on hatred as a response to both beneficence and harm, on the preference for sedition over persuasion, on the preference for survival over honor, and on the genesis of credulity from ignorance (Leviathan, 70-72, 74).
96. With respect to his emphasis on security from violence, Hobbes is impressed that "the weakest has strength enough to kill the strongest" (Leviathan, 87).
97. Patrick Neal, Liberalism and Its Discontents (New York: New York University Press, 1997), 192-95.
98. Even controversies that seem to depend on the most pristinely moral motives are better understood by taking account of other sources of behavior. As sociologist and disaster researcher Benigno E. Aguirre observes, one of the determinants of successful social movements-especially in time-scarcity cultures-is their ability to integrate the fulfillment of several cultural needs or motives into a compressed period of time. Abortion protestors, for instance, enact civic, ethical, and religious roles simultaneously ("Collective Behavior and Social Movement Theory", in Disasters, Collective Behavior, and Social Organization, ed. Russell R. Dynes and Kathleen J. Tierney [Newark: University of Delaware Press, 1994], 258-59).
99. Sociologists have long recognized that rationality and morality are diluted in actual human behavior, though they disagree about the extent of dilution. Expressing one extreme is Randall Collins, who notes the prevalence of the conceit that "pretty much everything we do is based on rational thought processes" but nevertheless holds: "Against all this common sense belief in rationality, however, sociology stands out as a dissenter. One of the central discoveries of sociology is that rationality is limited and appears only under certain conditions. More than that: society itself is ultimately based not upon reasoning or rational agreement but upon a nonrational foundation" (Sociological Insight [New York: Oxford University Press, 1982], 3-4). Of course, if rationality and ethics did not pertain in politics or disaster response, there would be no reason for this book. Much sociological research shows that such is not the case. Sometimes, in distinction to the relation specified by Collins, rationality reliably manifests in situations where irrationality is presumed to be the norm. In an article citing the above quotation from Collins, Lewis M. Killian examines this issue.
100. See "Are Social Movements Irrational?" in Disasters, Collective Behavior, and Social Organization, ed. Russell R. Dynes and Kathleen J. Tierney (Newark: University of Delaware Press, 1994), 273-80.
101. Stuart Hampshire, Justice Is Conflict (Princeton, N. J.: Princeton University Press, 2000), 4.
102. H. Tristram Engelhardt Jr., The Foundations of Bioethics, 2nd ed. (New York: Oxford University Press, 1996). Engelhardt's exhaustive treatment of these matters is the best I have seen in the literature of bioethics, political philosophy, or elsewhere. The reader is encouraged to consult it, since Engelhardt argues in far greater detail than the aims of this volume (and the capability of this author) would permit.
103. Hampshire's concept of secular morality (he calls it "liberal morality") is "the rejection of any final and exclusive authority, natural or supernatural, and of the accompanying compulsion and censorship" (Justice Is Conflict, 35). Secular morality, for Engelhardt, is the attempt to fashion standards that apply universally-without reference to arbitrary authority. This project begets, on his view, only a procedural morality that tolerates divergent conceptions of the good and right. In his treatise on Christian bioethics, Engelhardt stipulates that "secular" pertains to "moral frameworks that are neutral with respect to religious, including particular, quasi-religious cultural viewpoints." He argues that liberal cosmopolitanism and other ostensibly non-religious or anti-religious perspectives often manifest a quasi-religious character.
104. See H. Tristram Engelhardt Jr., The Foundations of Christian Bioethics (Exton, Pa.: Swets & Zeitlinger, 2000), 44, 45n2, 155n35.
105. Engelhardt, The Foundations of Bioethics, 69-70. Engelhardt writes: "This view of ethics and bioethics is not grounded in a concern for peaceableness. It is not based on an interest in establishing a peaceable community" (70). This makes him sound terribly non-Hobbesian. For Engelhardt, it is important to clarify that the principle of permission is purely procedural and devoid of content. However, Engelhardt also holds that his procedural principle of secular morality is relevant only to those with an interest "in collaborating with moral authority in the face of moral disagreements without fundamental recourse to force" (68). Like Hobbes, he regards this interest as inevitable. Unlike Hobbes (and unlike many other modus vivendi theorists, this author included), Engelhardt divorces the motive for secular morality from the justification for its fundamental principle. Engelhardt's conception of a hard-and-fast procedure/substance distinction is debatable and often debated. Hampshire, for instance, argues (to his disappointment): "There is evidently no way of rigorously proving, by an a priori argument, that there is an incoherence in not recognising procedural justice as a virtue that is independent of every conception of the good." (Hampshire regards procedural justice in the same way that Engelhardt regards his principle of permission: as the stripped-down requirement for obtaining a legitimate modus vivendi).
106. See Stuart Hampshire, Innocence and Experience (Cambridge: Harvard University Press, 1989), 135.
107. Hampshire's point is that any procedure for resolving moral controversies will itself have moral content. Another proponent of modus vivendi, John Gray, concedes the same point (Two Faces of Liberalism [New York: New Press, 2000], 25).
108. Hampshire, Justice Is Conflict, 41.
109. John Gray, Enlightenment's Wake (New York: Routledge, 1995), 18-30
110. Gray, Two Faces of Liberalism, 1-33.
111. Gray remarks that today's standard liberal version of tolerance based on the assumption that "one set of liberties is universally legitimate" is illiberal and is, in fact, "a species of fundamentalism, not a remedy for it" (Two Faces of Liberalism, 20-21).
112. John Gray mistakenly claims the opposite. See Two Faces of Liberalism, 6, 25.
113. Engelhardt, The Foundations of Bioethics, 122-23.
114. Property rights are constrained, according to Locke, by the qualification that one who appropriates land or resources that he has "mixed with his labor" must leave "enough, and as good" for others. When this qualification is not met, compensation is due. See Locke, Two Treatises of Government, 287-88.
115. It would be hard to argue that the ratification of the U. S. Constitution proceeded precisely in accordance with the principle of permission, but within the Federal Convention permission seemed to be the prevailing standard. The Articles of Confederation required unanimity for the enactment of revisions. However, James Madison and several others regarded the Articles of Confederation as a treaty that was null and void due to multiple violations by the states. James Wilson of Pennsylvania argued that the current state of national disarray foisted the delegates into a kind of original position where "the original powers of Society" trumped derivative political rights, and the permission of any state was implied insofar as it refrained from disassociating with the other states. "The house on fire must be extinguished", he said, "without a scrupulous regard to ordinary rights." Though Daniel Carrol and Luther Martin of Maryland argued that 13 votes should be required for ratification, delegates from the other states unanimously rejected this standard. Despite significant contention about the precise requirements, every state other than Maryland agreed in the end that 9 of 13 would be sufficient. In other words, permission was granted for the nine-state standard, and even Maryland seems to have ultimately granted permission by not exercising its prerogative to withdraw. For Madison's views, see James Madison, "Federalist #43", in The Federalist Papers, ed. Clinton Rossiter (New York: Mentor, 1961), 279-80. For the debate about ratification requirements at the Federal Convention
116. see James Madison, Notes of Debates in the Federal Convention of 1787 Reported by James Madison, Bicentennial Edition ed. (New York: W. W. Norton, 1987), 561-65.
117. In matters such as these, Engelhardt's departure from basic MVT is striking, making him look more like deontologically oriented self-ownership libertarian Robert Nozick than like a modus vivendi theorist. No doubt Engelhardt combines elements of both perspectives- and indeed, I have characterized him before as a deontological libertarian when the purpose suited me. To a degree, some kind of overlap between the positions is inevitable. To forge a modus vivendi, there must be negotiators or deliberators, who must in turn be selves or persons-each with ownership of themselves and whatever else they legitimately control. Hence, the terms of ownership must exist prior to deliberation. Yet MVT (in distinction to deontological libertarianism) believes that these terms of ownership are also objects of negotiation and that any particular negotiation will begin where it is (i.e., with whichever constellation of terms of ownership the negotiating parties actually employ). For a self-ownership account of deontological libertarianism, see Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).
118. Hampshire, Innocence and Experience, 11-12, 184-85. Relating how his own moral intuitions arose largely within the context of mid-twentieth-century British politics as a reaction against the British Conservatives, Hampshire disparagingly writes: "For most Conservatives love of property, and of the secure possession of wealth, easily outweighed all other moral commitments" (6). Hampshire's account of an ideal modus vivendi on property would be very different than Engelhardt's.
119. Calhoun, "A Disquisition on Government", 30;
120. Engelhardt, The Foundations of Bioethics, 116;
121. Gray, Two Faces of Liberalism, 116-17;
122. Hampshire, Innocence and Experience, 74, 114;
123. James Madison, "Federalist #37", in The Federalist Papers, ed. Clinton Rossiter (New York: Mentor, 1961). Much of the this text's discussion of compromise is covered in greater detail in one of my earlier papers: "Bioethics and Healthcare Reform: A Whig Response to Weak Consensus."
124. Weak consensus occurs when a subgroup of inquirers (the "authorized subgroup") internally generates a consensus prescribing behavior for a larger social group (the "target group") that complies but does not share in the consensus. There are three versions of weak consensus, depending on the conditions that cause the target group to acquiesce. In trivial weak consensus, acquiescence is a matter of apathy. In authoritative weak consensus, the target group complies because they believe on moral grounds that the authorized subgroup should be obeyed. In oligarchic weak consensus, the target population is coerced or otherwise constrained into acquiescence. For a fuller discussion of these phenomena, see Trotter, "Bioethics and Healthcare Reform", 38-42.
125. Calhoun, "A Disquisition on Government", 23-24.
126. After a very nice discussion of the law of group polarization (a sociological phenomenon in which members of a deliberating group predictably drift toward more extreme versions of the beliefs that polarize them from dissenters), Cass Sunstein advises that we structure political deliberation in a manner that derails polarization and facilitates reasonable conclusions by excluding arguments based on certain divisive beliefs. Which divisive beliefs should be excluded? Sunstein argues that "we often do know enough to know which views count as reasonable, without knowing which view counts as right." Though this statement is certainly true in extreme cases, "our" sense of reasonableness probably lacks sufficient specificity and scope to achieve the kind of consensus-guiding sense that could prescribe "appropriate heterogeneity" (Sunstein's term) without extensive moral imperialism on the part of those designing the deliberative structures. Those whose beliefs are excluded on the basis of someone else's sense of what is reasonable will, in any case, hardly be receptive. See Cass R. Sunstein, "The Law of Group Polarization", in Debating Deliberative Democracy, ed. James S. Fishkin and Peter Laslett (Malden, Mass.: Blackwell, 2003). Quotation from page 96.
127. Gutmann and Thompson, Democracy and Disagreement, 43, 349-50;
128. Jonathan Moreno, Deciding Together: Bioethics and Moral Consensus (New York: Oxford University Press, 1995), 45.
129. Kevin Wm. Wildes, Moral Acquaintances: Methodology in Bioethics (Notre Dame, Ind.: University of Notre Dame Press, 2000), 133.
130. Hugh A. Cowing, "History of the Small-Pox Epidemic at Muncie, Indiana, in 1893", in Twelfth Annual Report of the State Board of Health of Indiana, ed. S. S. Boots et al. (Indianapolis: William B. Burford, 1894), 127.
131. Ann E. Mills and Edward M. Spencer, "Evidence-Based Medicine: Why Clinical Ethicists Should Be Concerned", HEC Forum 15, no. 3(2003):231-44.
132. This emphasis on the use of evidence as medicine's primary ethical imperative is in line with an older habit of viewing technical competence as the primary imperative. See Albert Jonsen's discussion of the ethics of competence in The New Medicine and the Old Ethics (Cambridge: Harvard University Press, 1990), 27.
133. Eric Auf der Heide, "The Importance of Evidence-Based Disaster Planning", paper presented at the Third International WMD Conference, Preparedness through Partnership: Integrating Medical Mass Care Management in a WMD Incident, St. Petersburg, Florida, January 15, 2002.
134. Howard Brody, "Patient Ethics and Evidence-Based Medicine-the Good Healthcare Citizen", Cambridge Quarterly of Healthcare Ethics 14, no. 2(2005):141-46.
135. Lee Clarke, Mission Improbable: Using Fantasy Documents to Tame Disaster (Chicago: University of Chicago Press, 1999), 34-40.
136. See also Jennifer Leaning and Matthew Leighton, "The World According to FEMA", Bulletin of the Atomic Scientists 39(1983):S2-S6.
137. Clarke, Mission Improbable, 37.
138. Italics per Clarke's version. The quoted official is FEMA acting director John W. McConnell, speaking at a hearing before the House Committee on Armed Services, 97th Congress, 1st session, 30 March 1981, p. 4382.
139. Clarke, Mission Improbable, 23-30, 84-89.
140. H. Tristram Engelhardt Jr., The Foundations of Bioethics, 66.
141. Donald A. Henderson et al., "Smallpox as a Biological Weapon", in Bioterrorism: Guidelines for Medical and Public Health Management, ed. Donald A. Henderson, Thomas V. Ingelsby, and Tara O'Toole (Chicago: AMA Press, 2002), 105.
142. See Article III, Section 301 of the MSEHPA. Center for Law and the Public's Health at Georgetown and Johns Hopkins Universities, The Model State Emergency Health Powers Act (2001 [accessed April 10 2002]); available from www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf The degree of coercion in such requirements is small-pertaining to the rescission of medical licenses and uses of force that would follow if entities practiced medicine without a license. Such measures amount to minor increases in the intrusiveness of licensing requirements, which are themselves coercive.
143. Bill Frist, When Every Moment Counts (Lanham, Md.: Rowman & Littlefield, 2002), 27.
144. Frist's advice coheres with widely disseminated federal guidelines. See Vanessa O'Connell and Nicholas Kulish, "Government Ads Bring More News of Duct Tape and Plastic", Wall Street Journal, 19 February 2003. The plastic tape approach has also been used in Israel. Evidently the original source of the U. S. guideline is Ralph E. Comory, president of the Alfred P. Sloan Foundation.
145. See Stephanie Strom, "Behind Duct Tape and Sheeting, an Unlikely Proponent", New York Times, 23 February 2003.
146. Strom, "Behind Duct Tape and Sheeting."
147. This recommendation appeared in the committee's June 20, 2002, document "Use of Smallpox (Vaccinia) Vaccine: Draft Supplemental Recommendation. " Previously this document was available online through the Centers for Disease Control (CDC), but as of this writing it is not available online. The recommendation has for the time being been incorporated by the Bush administration into its bioterrorism strategy. See Anonymous, Protecting Americans: Smallpox Vaccination Program [Program Statement] (Centers for Disease Control, December 13, 2002 [cited January 8, 2005]); available from www.bt.cdc.gov/agent/smallpox/vaccination/pdf/vaccination-program-statement.pdf
148. Thomas May and Ross D. Silverman, "Should Smallpox Vaccine Be Made Available to the General Public?" Kennedy Institute of Ethics Journal 13, no. 2(2003):67-82.
149. Howard Markel, Quarantine! East European Jewish Immigrants and the New York City Epidemics of 1892 (Baltimore: Johns Hopkins University Press, 1997), 153-65.
150. Griffin Trotter, "Why Were the Benefits of tPA Exaggerated? " Western Journal of Medicine 176(2002):194-97.
151. Kathleen J. Tierney, Michael K. Lindell, and Ronald W. Perry, Facing the Unexpected: Disaster Preparedness and Response in the United States (Washington, D. C.: Joseph Henry Press, 2001), 137-38.
152. E. L. Quarantelli, "Local Mass Media Operations in Disasters in the USA", Disaster Prevention and Management 5(1996):5-10;
153. E. L. Quarantelli, "Realities and Mythologies in Disaster Films", Communications: International Journal of Mass Communication Research 11(1985):31-44.
154. E. L. Quarantelli, "The Command Post Point of View in Local Mass Communication Systems", Communications: International Journal of Mass Communication Research 7(1981):57-73.
155. For surveys of common disaster myths and summaries of the evidence that refutes them, see Eric Auf der Heide, "Common Misconceptions about Disasters: Panic, the 'Disaster Syndrome', and Looting", in The First 72 Hours: A Community Approach to Disaster Preparedness, ed. Margaret O'Leary (New York: iUniverse, 2004), 340-80;
156. Russell R. Dynes, "Disastrous Assumptions About Community Disasters", in Proceedings of the International Management and Engineering Conference, ed. James D. Sullivan, Jean Luc Wybo, and Laurent Buisson (Dallas, Tex.: The International Emergency Management and Engineering Society, 1995), 25-28;
157. H. W. Fischer III, Response to Disaster: Fact Versus Fiction and Its Perpetuation: The Sociology of Disaster (New York: University Press of America, 1998);
158. E. L. Quarantelli, How Individuals and Groups React during Disasters: Planning and Managing Implications for EMS Delivery (University of Delaware, Disaster Research Center, 1989 [cited June 10, 2004]); available from www.udel.edu/DRC/prepapers.html. For a discussion of panic
159. see E. L. Quarantelli, The Sociology of Panic [University of Delaware] (2001 [accessed September 8, 2003]) from www.udel.edu/DRC/preliminary/pp283.pdf. For a discussion of myths about social deterioration during disasters
160. see Russell R. Dynes, "Finding Order in Disorder: Continuities in the 9-11 Response", International Journal of Mass Emergencies and Disasters 21, no. 3(2003):9-23.
161. As per the norm, socially adaptive behavior in New Orleans was far more common than antisocial behavior in the aftermath of Katrina. See Quarantelli, Catastrophes Are Different from Disasters (Disaster Research Center, 2005). Available from http://understandingkatrina.ssrc.org/Quarantelli/[accessed October 28, 2005].
162. Jim Dwyer and Christopher Drew, "Fear Exceeded Crime's Reality in New Orleans", New York Times, 29 September 2005.
163. Russell Dynes cites several instances of misguided concern about panic, including the headline: "America Is Dangerously Vulnerable to Panic in Terror Attack, Experts Say." See Dynes, "Finding Order in Disorder", 13.
164. There are certainly exceptions to the generalization that citizens tend to be overvigorous in their pursuit of safety from nuclear, biological, and chemical terrors. For instance, citizens never really got on board with federal civil defense programs aimed at preparing them to act decisively and adaptively in the event of a nuclear attack. This reluctance seems not so much based on lack of fear of a nuclear holocaust (though toward the end of the Cold War this fear seemed to be waning), but rather on a lack of confidence that the protective measures would work. This lack of confidence hardly seems ill-informed or otherwise indicative of a poor decisional capacity. As Spencer Weart observes, "Even the RAND strategists and local civil defense officials who worked professionally on fallout shelters usually did not build one for their own families" ("History of American Attitudes to Civil Defense", in Civil Defense: A Choice of Disasters, ed. John Dowling and Evans M. Harrell [New York: American Institute of Physics, 1987], 25). For a general discussion of this lack of responsiveness to civil defense initiatives
165. see Lee Clarke, Mission Improbable, 117-25.
166. Many left-liberal political theorists assume that being free to radically modify one's life plan or one's conception of the good (hence, also one's allegiances) is the most fundamental liberty- and that this freedom is meaningless unless the government assures the conditions to enact such modifications successfully. Norman Daniels, for instance, claims that persons have a right to health care insofar as health care is a prerequisite for "normal species functioning." "Normal species functioning" becomes an essentially political category, regarded as fundamentally important for all persons (even those whose life plans or conceptions of health don't demand Daniels' version of it) because it opens up a range of alternative life plans and, with these, alternative conceptions of the good. Daniels writes: "Consequently, if persons have a fundamental interest in preserving the opportunity to revise their conceptions of the good through time, then they will have a pressing interest in maintaining normal species functioning... by establishing institutions, such as health-care systems, which do just that." Daniels thinks the state should determine which potential life plans or conceptions of the good are legitimate, then fashion a notion of "normal species function" that potentiates these. The upshot, of course, is that taxpayers are coerced into paying for "options" that some of them find abhorrent or evil, just because the government says they have a fundamental interest in preserving them. See Norman Daniels, Just Health Care, ed. Daniel I. Wikler, Studies in Philosophy and Health Policy (New York: Cambridge University Press, 1985), 27-28. On the other end of the spectrum, we have theorists like Friedrich von Hayek, who believe that conceptions of the good are in competition and that an important aspect of this competition is the conceptions' relative ability to generate goods and services necessary to sustain those who affirm the conception. On this account, Daniels' big-government approach amounts to a total quashing of legitimate moral pluralism.
167. See Friedrich von Hayek, "Equality, Value, and Merit", in The Essence of Hayek, ed. Chiaki Nishiyama and Kurt R. Leube (Stanford, Calif: Hoover Institution Press, 1984), 32.
168. See Cass R. Sunstein, "The Law of Group Polarization", in Debating Deliberative Democracy, ed. James S. Fishkin and Peter Laslett (Malden, Mass.: Blackwell, 2003), 80-101.
169. Bruce Ackerman and James S. Fishkin, "Deliberation Day", in Debating Deliberative Democracy, ed. James S. Fishkin and Peter Laslett (Malden, Mass.: Blackwell Publishing, 2003), 7-30. In deliberative polling, "a random sample is first given a survey of the conventional sort. Then it is invited to come to a single place, at the expense of the project, to engage in a weekend of small group discussions and larger plenary sessions in which it is given extensive opportunities to get good information, exchange competing points of view and come to a considered judgment. The resulting changes of opinion are often dramatic. They offer a glimpse of democratic possibilities-the views people would have if they were effectively motivated to pay attention and get good information and discuss the issues together. The Deliberative Poll puts scientific random samples in a situation where they have incentives, in effect, to overcome rational ignorance" (11-12). Deliberation Day is an extension of this sort of program to local, regional, or national politics.
170. Margaret Humphreys, Yellow Fever and the South (Baltimore: Johns Hopkins University Press, 1992), 45-76.
171. The term "evidence-based public health" was not used by advocates of the national system or by anyone else in the nineteenth century as far as I know. But the aspirations were clearly there- and not just for public health nationalists. In the 1890s state officials throughout the country pushed for measures that would facilitate data taking. These aspirations were evident, for instance, in public health advocacy for mandatory death permits, burial permits, and public cemeteries. Though many take such measures for granted now, it still is remarkable that the state was able so quickly to usurp control of something so personal and sacred as the handling of dead bodies. See S. S. Boots et al., Twelfth Annual Report of the State Board of Health of Indiana (Indianapolis: William B. Burfurd, 1894), 11-19.
172. Humphreys, Yellow Fever and the South, 128-32.
173. George Annas, "Bioterrorism, Public Health, and Civil Liberties", New England Journal of Medicine 346, no. 17(2002):1340.
174. Calhoun was a prominent antebellum senator (as well as vice president under Andrew Jackson before resigning) and constitutional scholar known for his doctrine of nullification, which holds that states have the right to nullify federal legislation that they find egregiously unconstitutional. See John C. Calhoun, "The Fort Hill Address: On the Relations of the States and Federal Government (1831)", in Union and Liberty: The Political Philosophy of John C. Calhoun, ed. Ross M. Lence (Indianapolis: Liberty Fund, 1992), 370-71.
175. Gary A. Kreps and Susan Lovegren Bosworth, Organizing, Role Enactment, and Disaster (Newark: University of Delaware Press, 1994), 99, 154-56, 74-79. As Kreps and Bosworth observe, many intuitively important role linkages have not been studied systematically.
176. Lisa D. Rotz et al., "Public Health Assessment of Potential Biological Weapons", Emerging Infectious Diseases [on-line] 8, no. 2 (2002).
177. Thomas H. Kean et al., The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States, authorized ed. (New York: W. W. Norton, 2004), 10-14. Subsequent page numbers in the text are from this edition.
178. Actually, in the typical mass casualty event, speed to definitive treatment is a less important aspect of medical decisions than it is in ordinary emergency medicine. See E. L. Quarantelli, "Converting Disaster Scholarship into Effective Disaster Planning and Managing: Possibilities and Limitations", International Journal of Mass Emergencies and Disasters 11, no. 1(1993):21.
179. Daniel Henninger, "Leviathan 101: Don't Blame It on FEMA", Wall Street Journal, 30 September 2005.
180. Henninger claims that the implicit message from the public denouncement of FEMA director Michael Brown for senior managers in the federal bureaucracy is: "Be careful, not decisive." This message, Henninger thinks, will impede needed internal reforms. He also comments on the turf battle between DHS and the Pentagon. For an account of another turf battle, between DHS and the Department of Justice, see Robert Block and Gary Fields, "Washington Turf Battle Muddles Nation's Terror-Warning System", Wall Street Journal, 28 May 2004.
181. W. A. Lake, P. D. Fedele, and S. M. Marshall, "Guidelines for Mass Casualty Decontamination During a Terrorist Chemical Agent Incident" (Aberdeen Proving Ground, Md.: U. S. Army Soldier and Biological Chemical Command, 2000), 37-38.
182. H. Nozaki et al., "Secondary Exposure of Medical Staff to Sarin Vapor in the Emergency Room", Intensive Care Medicine 21(1995):1032-35
183. Sadayoshi Ohbu et al., "Sarin Poisoning on Tokyo Subway", Southern Medical Journal 90(1997):587-93.
184. Nerve agents such as sarin, tabun, soman, and VX work by inhibiting the enzyme acetyl cholinesterase. This enzyme breaks down the neurotransmitter acetyl choline at the nerve synapse. When acetyl cholinesterase is inhibited, excessive levels of the neurotransmitter accumulate, causing excessive nerve discharge and symptoms such as excessive tearing, salivation, urination, defecation, vomiting, and airway secretion. Pharmacological treatment for nerve agent poisoning must be delivered early or it will be practically useless. In some instances (e.g., military engagements in which the use of nerve agents can be foreseen) pretreatment with carbamates such as pyridostigmine is possible and effective. Two classes of drug are used for treating an established poisoning: (1) muscarinic agents such as atropine that mitigate the effect of excess acetyl choline by blocking receptors at the synapse, and (2) oximes, such as pralidoxime (2-PAM), HI-6, and obidoxim, that reactivate damaged acetyl cholinesterase. See Griffin Trotter, "Chemical Terrorism and the Ethics of Decontamination", Journal of Clinical Ethics 15, no. 2(2004):149-51.
185. Doctors at Keio University Hospital had advance warning from the metropolitan fire agency that there was "a gas explosion in the Tokyo subway", but no news about chemical casualties. Nozaki et al., "Secondary Exposure of Medical Staff", 1033.
186. Jacek Franaszek, "Is Emergency Department Overcrowding a Disaster?" in The First 72 Hours, ed. Margaret O'Leary (New York: iUniverse, 2004), 136-42;
187. Trotter, "Emergency Medicine, Terrorism, and Universal Access to Healthcare", 133-46.
188. "Hazmat" is a contraction for "hazardous materials."
189. Joseph F. Waeckerle, "Domestic Preparedness for Events Involving Weapons of Mass Destruction", JAMA 283, no. 2(2000):252-54.
190. Gostin et al., "The Model State Emergency Health Powers Act", 622-28.
191. James Bondi, "School Security and Strategic National Stockpile Distribution Site Operations", in The First 72 Hours, ed. Margaret O'Leary (New York: iUniverse, 2004), 67-68.
192. FIRESCOPE is Fire Resources of Southern California Organized for Potential Emergencies. Seven fire agencies, funded by the Federal Emergency Management Agency (FEMA), formed the FIRESCOPE task force that developed the Incident Command System. For a detailed description of the ICS and the related "unified command", see Robert L. Irwin, "The Incident Command System", in Disaster Response: Principles of Preparation and Coordination, ed. Eric Auf der Heide (1989).
193. Joe Gasparich, Biot #9: Introduction to Incident Management (Lecture from Illinois Bioterrorism Summit, May 28-30, 2002) (Suburban Emergency Management Project (SEMP), 2002 [cited April 28, 2005]); available from www.semp. us.
194. Dennis Wenger, E. L. Quarantelli, and Russell R. Dynes, "Disaster Analysis: Police and Fire Departments, Final Report on Phase II for Federal Emergency Management Agency" (Newark, Del.: Disaster Research Center, 1989), 57-60.
195. Kean et al., The 9/11 Commission Report, 397.
196. In arguing that the EOC is a complex, dynamic social system (and that "no one particular social arrangement or form" is decisively better than the others), Quarantelli remarked in 1997 that liaison officers in the ICS need to be well-informed and vested with significant decisional authority, otherwise their interaction with officials from the various participating organizations will have few practical bearings. E. L. Quarantelli, "Ten Criteria for Evaluating the Management of Community Disasters", Disasters 21, no. 1(1997):52. Bearing out Quarantelli's advice, the worthlessness of uninformed, unvested liaisons was amply illustrated in 9/11 aerospace defense, as FAA and White House Teleconferences failed to recruit the right officials and therefore produced no meaningful contribution.
197. Kean et al., The 9/11 Commission Report, 36-38.
198. E. L. Quarantelli, "The Questionable Nature of the Incident Command System", in The First 72 Hours, ed. Margaret O'Leary (New York: iUniverse, 2004), 538-39.
199. Quarantelli, "Ten Criteria for Evaluating the Management of Community Disasters", 50.
200. See also Quarantelli, "The Questionable Nature of the Incident Command System."
201. Wenger, Quarantelli, and Dynes, "Disaster Analysis: Police and Fire Departments", 162.
202. Quarantelli, "Ten Criteria for Evaluating the Management of Community Disasters", 48.
203. Kathleen J. Tierney, Michael K. Lindell, and Ronald W. Perry, Facing the Unexpected: Disaster Preparedness and Response in the United States (Washington, D. C.: Joseph Henry Press, 2001), 129.
204. Quarantelli, "Converting Disaster Scholarship into Effective Disaster Planning", 21.
205. EMTALA is the Emergency Medical Treatment and Active Labor Act. Enacted in 1986, it requires that all patients presenting to emergency departments of hospitals that accept Medicare get screened to determine if they have an emergency medical condition. If they do, they must be stabilized before transfer, and certain arrangements need to be made to assure that the transfer is done safely. Most troublesomely to emergency physicians and seriously ill nontransfer patients, who must go untended during the paperwork shuffle, the whole process must be documented in meticulous detail by the transferring physician. A large and daunting bureaucracy has evolved in the monitoring and enforcement of EMTALA, often producing paperwork requirements that have little warrant in the actual legislation. Virtually all disaster plans call for egregious violations of EMTALA-a topic that generated serious concern in the wake of the 9/11 attacks, as planners went into high gear. To ease the anxiety, in the fall of 2001, the Health Care Financing Administration (now the Center for Medicare and Medicaid Services, or CMS) issued a statement on their Web site that EMTALA violations undertaken during the enactment of a disaster plan will not be punished so long as they are "in accordance with" the plan. It is likely that CMS, and some health care providers, will understand "in accordance with the plan" as entailing strict chain-of-command authority. If so, adaptive emergent behavior will be discouraged. For more discussion about EMTALA and its relevance to disaster medicine, see Trotter, "Emergency Medicine, Terrorism, and Universal Access to Healthcare."
206. Recall the fourfold typology employed by the DRC. Type III organizations are called "extending" because "much of what they do is unanticipated." Hospitals functioning in disasters are usually regarded as a prototype of the Type I organization-an "established" organization that neither expands significantly (i.e., by taking on new personnel) nor undertakes unanticipated tasks. However, our example shows how even a Type I organization must deal with unanticipated contingencies (though one would hope that ED overload is not widely unanticipated in contemporary practice)-many of the protocols and practices that address these unanticipated contingencies will be emergent. See Gary A. Kreps and Susan Lovegren Bosworth, Organizing, Role Enactment, and Disaster (Newark: University of Delaware Press, 1994), 22-23.
207. I have argued, at book length, that professional loyalties are justified through their grounding in deeper loyalties to the public (and ultimately, to humanity). Griffin Trotter, The Loyal Physician: Roycean Ethics and the Practice of Medicine (Nashville, Tenn.: Vanderbilt University Press, 1997). Some of the arguments in that book employ premises that stretch beyond what is likely to be engrafted into the public philosophy of a secular pluralistic society like the United States. But it isn't much of a stretch to claim that "good reasons legitimacy" in a public health emergency will hinge on serving the public, and that anyone who brings harm to another person or abridges their rights, based on idiosyncratic personal and professional values, will (and should) be held blameworthy.
208. For an account of prominent myths regarding preparedness for bioterrorism, see Eric Noji, Tress Goodwin, and Michael Hopmeier, "Demystifying Bioterrorism: Misinformation and Misperceptions", Prehospital and Disaster Medicine 20, no. 1(2005):3-6.
209. Though extensive experience in multiple disasters is without question likely to be an asset, a little experience may be a liability. Quarantelli notes, for instance, that "success in coping with a past disaster" may be, for the community in question, "more of a disadvantage than not having any experience at all" because it tends to beget the complacency of thinking that the next disaster will be something like the one already experienced. Such complacency may be particularly dangerous in preparations for terrorism, since intelligent terrorists can consciously exploit it. See Quarantelli, "Converting Disaster Scholarship into Effective Disaster Planning", 31.
210. The Journal reported that on May 12 people would be getting sick with plague in Chicago (the fake terrorists having released it over the weekend at O'Hare and Midway Airports) just as a diversionary dirty bomb detonated in Seattle. The National Strategic Stockpile of drugs would fly in on May 14; the FBI would take down a fake germ lab on May 15; and deaths would mount into the hundreds, casualties into the thousands, by May 16. Marilyn Chase, "Coming Drill Will Simulate Plague Germs in Chicago, Dirty-Bomb in Seattle", Wall Street Journal, 2 May 2003.
211. Trotter, "Loyalty in the Trenches", 409.
212. Lake, Fedele, and Marshall, "Guidelines for Mass Casualty Decontamination";
213. Howard W. Levitin et al., "Decontamination of Mass Casualties-Re-Evaluating Existing Dogma", Prehospital and Disaster Medicine 18, no. 3(2003):200-207;
214. Henry J. Siegelson, "Preparing for a Terrorist Attack: Mass Casualty Management", presented at the Third International WMD Conference, St. Petersburg, Florida, January 15, 2002.
215. Siegelson, "Preparing for a Terrorist Attack."
216. Quarantelli, "Converting Disaster Scholarship into Effective Disaster Planning", 26. In his discussion of citizens recently increasing demands for involvement in disaster planning, Quarantelli alludes to a law "that requires citizen input into the Corps of Engineering flood planning projects before they are actually initiated."
217. Bureaucratic requirements unquestionably played a role in these limitations. For instance, each volunteer was required to sign a detailed consent form, which included the following: "I understand that as a participant in the mock disaster drill, I may have makeup applied so as to look like a disaster victim; may have my clothing soiled or torn; and may be transported by stretcher [or] wheelchair." See Chase, "Coming Drill Will Simulate Plague."
218. This practice was passed on from TopOff1, where contractors constructed a Virtual News Network of actors in black satin jackets "rather than risk interaction with real reporters, a prospect that one participant called as daunting as plague." See Judith Miller, Stephen Engelberg, and William Broad, Germs: Biological Weapons and America's Secret War (New York: Simon & Schuster, 2001), 272.
219. Tierney, Lindell, and Perry, Facing the Unexpected, 136.
220. Dennis Wenger and E. L. Quarantelli, "Local Mass Media Operations, Problems and Products in Disasters, Report Series #19, University of Delaware Disaster Research Center, 1989, 55-62. (Quotation from page 62).
221. See also: Russell R. Dynes and E. L. Quarantelli, "The Family and Community Context of Individual Reactions to Disaster", in Emergency and Disaster Management: A Mental Health Sourcebook, ed. Howard J. Parad, H. L. P. Resnik, and Libbie G. Parad (Bowie, Maryland: Charles Press Publishers, 1976), 231-44.
222. Wenger and Quarantelli, "Local Mass Media Operations, Problems and Products in Disasters", 55.
223. In an article for the Wall Street Journal, David Baltimore decries the ways in which fellow journalists create the kind of hysteria that they erroneously assume to be the norm. As an example, Baltimore cites the coverage of the SARS epidemic and how it eventuated in irrational actions such as the boycott of Chinese restaurants ("SAMS-Severe Acute Media Syndrome?" Wall Street Journal, 28 April 2003).
224. Kean et al., The 9/11 Commission Report, 318.
225. Alan Kaplan, "The Greater Good: The Role of a Hospital Chief Medical Officer in Disasters", in The First 72 Hours, ed. Margaret O'Leary (New York: iUniverse, 2004), 62;
226. Wenger, Quarantelli, and Dynes, "Disaster Analysis: Police and Fire Departments", 92, 153. Likewise, the genuine authority that legitimates tactical leaders cannot be assigned or imposed. It is established over time.
227. See Wenger, Quarantelli, and Dynes, "Disaster Analysis: Police and Fire Departments", 134.
228. It is worth noting, however, that role complementarity is not the rule in emergent and extending organizations, and that volunteers and other strangers who come together specifically in a disaster situation commonly work very well together. See Kreps and Bosworth, Organizing, Role Enactment, and Disaster, 106, 36, 77.
229. Quarantelli, "Ten Criteria for Evaluating the Management of Community Disasters", 46;
230. Tierney, Lindell, and Perry, Facing the Unexpected, 129;
231. Wenger, Quarantelli, and Dynes, "Disaster Analysis: Police and Fire Departments", 147. Even in the aftermath of the 9/11 tragedy, longstanding tensions between the New York City police and fire departments still smolder and forebode problems in future disaster operations. At this writing, one major point of contention is that city planners have designated police officials to take command in a disaster.
232. Quarantelli, "Converting Disaster Scholarship into Effective Disaster Planning", 29.
233. Quarantelli, "Ten Criteria for Evaluating the Management of Community Disasters", 48-49.
234. In cynical moments, I wonder if the bureaucratic mentality typifying so many public officials can ever be effectively adapted to the contingencies of a disaster, and I suppose that the only hope is to appropriate private-sector talent-from industries where adaptive thinking is regarded as an essential asset rather than a dangerous invitation to punitive oversight. In November of 2005, the Wall Street Journal published an intriguing article that documented how various private logistics experts assisted in the year's numerous disasters. The lead story featured Chris Weeks, an express shipping executive from DHL Corporation. In the response to a Kashmir earthquake in October 2005, Weeks (who was "on loan" from DHL to the U. S. military) helped devise a "speedball" approach for distributing needed food and supplies to remote sites. The "speedball" was a red polypropylene ball of the sort DHL uses to move loose cargo, on this occasion stuffed with enough food, tents, and other supplies to keep seven people alive for ten days. Thousands of speedballs were distributed by helicopter to difficultto-reach outposts-helicopters swooping down and the crew kicking them out, then quickly moving on to the next destination. See Glenn R. Simpson, "In Year of Disasters, Experts Bring Order to Chaos of Relief", Wall Street Journal, 22 November 2005.
235. Margaret Humphreys, Yellow Fever and the South (Baltimore: Johns Hopkins University Press, 1992), 61, 138.
236. Also, during the cholera epidemics, the health officer of the Port of New York, Dr. William Jenkins, shipped the wealthier quarantined to Fire Island. Howard Markel reports that "a gaggle of resident clam-diggers tried to prevent these boats from landing with sticks and guns, until New York Gov. Roswell Flowers ordered the National Guard to subdue them" ("Quarantine", Wall Street Journal, 7 October 2005.
237. Eric Auf der Heide, "Common Misconceptions About Disasters: Panic, the 'Disaster Syndrome', and Looting", in The First 72 Hours: A Community Approach to Disaster Preparedness, ed. Margaret O'Leary (New York: iUniverse, 2004), 363. (Auf der Heide's citations are omitted from the quotation.)
238. This scenario was considered in an earlier essay, Griffin Trotter, "Loyalty in the Trenches: Practical Teleology for Office Clinicians Responding to Terrorism", Journal of Medicine and Philosophy 29, no. 4(2004):389-416. In that essay I examine the question of whether Dr. Adams is obliged to obey the emergency conscription order-answering affirmatively, since obedience is here presumably a legitimate manifestation of a duty to participate in the protection of his nation against malicious threats from external sources. This question will not be posed in the current study, since it does not involve a coercive decision on Dr. Adams's part. Our interest in this section is in Dr. Adams as an agent of individual decisions for coercion.
239. Edmund D. Pellegrino and David C. Thomasma, For the Patient's Good (New York: Oxford University Press, 1988).
240. George Annas, "Control of Tuberculosis-the Law and the Public's Health", New England Journal of Medicine 328, no. 8(1993):585-88. One could argue that in most circumstances directly observed treatment actually serves the best interests of the patients who are coerced into receiving it. We will not address that issue here.
241. Immanuel Kant, Foundations of the Metaphysics of Morals, trans. Lewis White Beck (Indianapolis: Bobbs-Merrill, 1959), 37-42.
242. Trotter, "Loyalty in the Trenches."
243. Trotter, The Loyal Physician.
244. Josiah Royce, The Philosophy of Loyalty (Nashville, Tenn.: Vanderbilt University Press, 1995 [1908]), 9.