How Fixing the Past May Create Future Regulatory Problems

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Scholar argues that generational amnesia may lead to ineffective regulatory solutions in the future.

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What happens when a regulatory regime works so well that society forgets how serious a past problem was? And how does this generational amnesia affect contemporary attempts to update that regulatory regime?

These questions raise a problem known as the shifting baseline syndrome. This syndrome occurs when generations accept the status quo as “normal,” overlooking the conditions necessary to achieve this regulatory success. In a recent article, law professor Robin Kundis Craig applies this concept to vaccine mandates to explain the resurgent backlash against pre-COVID-19 government vaccination requirements. And she raises questions about how the shifting baseline syndrome will shape the future of public health law.

Craig argues, for example, that vaccination mandates have been so successful at mitigating the dangers of diseases such as measles or polio that some lawmakers no longer believe they are necessary. Although experts agree that vaccines are still are needed for these diseases; other diseases, such as smallpox, have been eradicated to such an extent that vaccines are no longer needed. Understanding these differences in public health needs is vital to both policy decision-makers and individual members of the public who must consider the risk balance between vaccinations and the diseases they treat.

Craig worries that the shifting baseline syndrome will hamper policy decision-making in a variety of regulatory contexts. She points to an example outside of public health: the election law case of Shelby County v. Holder. In that case, the U.S. Supreme Court held that parts of the Voting Rights Act of 1965 were no longer necessary because the problem of state discrimination in the voting process had largely been resolved—forgetting, in Craig’s view, that these problems may once again arise in the absence of legal protections.

Craig splits long-term regulatory regimes into two types—those that address problems that society still considers salient, such as child labor laws, and those like vaccination mandates, many of which address diseases that society no longer worries about. When the problem is societally relevant, the baseline is less likely to shift, argues Craig. But when the regulatory regime has addressed a less relevant problem, Craig contends it can be highly susceptible to shifting baseline syndrome.

After discussing mandatory vaccination regimes’ historical successes, Craig uses the case of measles vaccinations to explore how shifting baseline syndrome is mainly present in modern thought on vaccination regimes. In 2000, the United States declared measles eliminated within its borders. Nevertheless, small measles outbreaks continue to occur every year. But, as the CDC notes, these cases are primarily found in those who were not vaccinated. Craig argues that shifting baseline syndrome is partially responsible for these individuals’ decisions not to get vaccinated.

Craig next discusses how vaccine lawsuits and the National Childhood Vaccine Injury Act of 1986 started the process of muddling the balance between the risks of a disease and the risks of receiving a vaccine against that disease. Isolated but highly publicized incidents such as the Cutter Incident, where a flawed vaccine was released with lethal consequences, led to increased vaccine liability lawsuits. Courts later dismissed many of these lawsuits for being unfounded.

Crag argues that as societal trust in vaccinations fell, those who oppose vaccinations could better pursue their agendas against vaccinations. One result of these campaigns was the expansion of state exemptions, which allowed for an increase in individuals who opted out of vaccination requirements. Vaccination mandates had been so successful, Craig notes, that the risk of disease no longer outweighed the rising fear of vaccines. But this situation only developed because of the vaccination programs’ success—an irony that Craig sees as evidence of shifting baseline syndrome. The result, Craig concludes, is that the resurgences of measles and similar diseases are attributable to the generational amnesia of these diseases’ dangers that the safety of the vaccine regulatory regime has created.

Craig ends with a discussion of COVID-19 vaccination resistance and its connection to shifting baseline syndrome in other vaccine-preventable diseases. Craig holds that COVID-19 vaccine resistance arose separately from the syndrome, noting that its hyper-politicization and roots in personal liberty arguments are different from the more traditional risk-balancing views used by anti-vaxxers in the past. Instead, Craig fears that the addition of these arguments to the anti-vaccine movement may exacerbate the shifting baseline syndrome and adversely affect more traditional vaccine-preventable disease regulations.

Although measles has started a resurgence, Craig optimistically notes that state and federal responses show an attempt to correct the shifting baseline by strengthening vaccine requirements and eliminating exemptions. Craig views these developments as signs that the cultural memory of the dangers of diseases such as measles has begun to return and that, at least for a moment, generational amnesia is fading.

Craig concludes with the hope that raising awareness of shifting baseline syndrome, particularly concerning vaccine mandates, will help remind decision-makers of these mandates’ importance in maintaining a disease-free life. To forget that this luxury is a result of mandatory vaccination regulations is to shift the baseline, and, Craig fears, may lead to the resurgence of these deadly diseases in society.