Sticking Points: Epistemic Pluralism in Legal Challenges to Mandatory Vaccination Policies

Abstract

“Everyone is entitled to his own opinion,” so the saying goes, “but not to his own facts.” Yet contemporary society is marked by a remarkable divergence of belief concerning matters of “objective” fact. This Article explores the phenomenon of “epistemic pluralism”—entrenched disagreement about matters of empirical fact—from the perspective of John Rawls’s work on political liberalism. Expanding on Rawls’s discussion of reasonable pluralism among normative viewpoints, it argues that the persistence of epistemic pluralism poses challenges to the moral legitimacy of coercive state action analogous to the challenges that Rawls identified as arising from normative pluralism. The Article examines legal challenges to mandatory vaccination policies as a principal case study of epistemic pluralism in the law. For over two hundred years, antivaccinationists have rejected the mainstream medical consensus that vaccines are safe and effective and have demanded exemptions from immunization mandates on both empirical and normative grounds. The Article develops a principle of “epistemic public reason,” which incorporates a principle of epistemic reasonableness by which to distinguish those epistemic viewpoints entitled to moral duties of civility and reciprocity by fellow citizens. Finding that most empirical objections to vaccination mandates are either directly or indirectly epistemically unreasonable, the Article concludes that the coercive imposition of immunization requirements on epistemic outliers is consistent with the principle of epistemic public reason. It also clarifies more generally the nature and extent of public officials’ obligation to offer reasons on contested empirical questions relevant to public policy that all reasonable citizens, including dissenters, can reasonably accept.