The Regulatory Shifting Baseline Syndrome: Vaccines, Generational Amnesia, and the Shifting Perception of Risk in Public Law Regimes

Robin Kundis Craig (USC), Regulatory Shifting Baseline Syndrome: Vaccines, Generational Amnesia, and the Shifting Perception of Risk in Public Law Regimes, 21 Yale J. Health Pol’y Ethics (forthcoming, summer 2022):

Vaccination mandates have been controversial since long before COVID-19, but the current COVID controversies obscure a more pervasive problem for U.S. public health laws and vaccine-preventable diseases than the intense politicization surrounding the pandemic. Until the late 20th century, for most people the risk of various dread diseases was sufficiently high that they embraced new vaccines. The intentional result of federal and state vaccination policies was that fewer people got these diseases. The perverse result was that perceptions of disease risk shifted, making the vaccines themselves seem like the far riskier option to many people and pressures to eliminate or mitigate vaccination mandates increased. Perhaps most importantly, in the early 21st century, state legislatures increasingly enacted exemptions from school vaccination requirements, setting the stage for measles resurgences in 2015 and 2019.

Focusing primarily on measles vaccination, this Article argues that, while not the only factor, a regulatory shifting baseline syndrome fueled the pre-COVID-19 resistance to childhood vaccination. In 1995, Dr. Daniel Pauly described the “shifting baseline syndrome” and its problems for fisheries management. Pauly posited that each generation forgets what the ocean and its fisheries used to be and that this generational amnesia allows successive generations to accept the current impoverished state of marine fisheries as normal. The generational forgetting of prior fisheries, in other words, makes opaque what the goals of fisheries regulation should be, or even could be.

This Article brings the shifting baseline concept into public law, identifying for the first time a regulatory shifting baseline syndrome that can undermine the law’s ability to protect society at large. This syndrome arises when a public legal regime, like a school vaccination mandate, so successfully eliminates a societal problem, like dread diseases, that citizens, politicians, and lawmakers forget that the regime is in fact still working to keep that problem at bay. This generational amnesia, in turn, can lead to changes in law and policy allow the prior problem to re-emerge in society, as occurred with measles outbreaks. While COVID-19 vaccination mandates are almost uniquely politicized and too new to reflect and regulatory shifting baseline syndrome, decisions are nevertheless being made in the COVID-19 context that may give the regulatory shifting baseline syndrome more room to operate, potentially threatening public health gains made with respect to a plethora of other vaccine-preventable diseases in the United States.